Nearly lost in the sometimes breathless coverage of the massive Democratic gains in the House of Representatives and state legislatures was a political sea change in the recent midterm election: for the first time in years, Democrats gained control over the levers of environmental law in four critical states.
In four formerly reliably Republican states—Michigan, Colorado, Wisconsin and Nevada—GOP attorneys general were ousted by Democratic challengers. It is a development, observers say, that represents a stunning defeat for the oil and gas industry, which poured millions of dollars into those campaigns. And it could alter the landscape for several high-profile cases that seek to hold the industry accountable for the ravages of climate change.
“Democratic AGs now hold 27 offices,” said Lizzie Ulmer, communications director for the Democratic Attorneys General Association. “That puts us in the majority.”
The Democrats’ gains on Nov. 6 give them precisely the slim majority the Republicans used to hold. Among the ousted were some staunch supporters of the fossil fuel industry.
The question is whether this new coalition of Democratic attorneys general will act en masse, launching investigations and filing suits as a coordinated bloc, as their Republican predecessors did.
Throughout most of the Obama administration, the GOP attorneys general formed a united front. They challenged the Democratic administration on a host of issues, from health care to critical environmental issues like the Clean Power Plan, which sought to leverage market forces to cut carbon emissions, and the Waters of United States rule that gives federal regulators a larger role in regulating tributaries to major navigable waterways, which previously had been beyond federal reach.
“They were very coordinated in their efforts to be a bloc and to be obstructionist during the Obama administration,” Ulmer said. As Texas Gov. Greg Abbott once described his former job as the state’s attorney general: “I go into the office, I sue the federal government and I go home.”
Even when they were in the minority, however, Democratic attorneys general have been active, especially since the beginning of the Trump administration. They have, either separately or as a team, sued the administration 38 times, with some, like California’s recently re-elected Xavier Becerra, proving particularly litigious. Becerra was involved in 24 of those cases and has won 14 of them.
Those lawsuits are likely to continue, and the new crop of Democratic attorney generals could bolster their ranks and file a few more of their own.
That’s particularly likely in a place like Michigan, where Democrat Dana Nessel easily defeated Tom Leonard, the heir apparent to Republican Bill Schuette, who unsuccessfully ran for governor. Under Schuette, Michigan was among the most ferocious states in its support of the oil and gas industry, filing an amicus brief, for example, backing Exxon against a landmark lawsuit filed by New York State alleging that the company defrauded investors by hiding the risks of climate change. In the brief, Schuette declared climate change to be “unsettled science.”
Many expect Michigan will do an about-face, said Lisa Wozniak, executive director for the Michigan League of Conservation Voters. In a state that is still coping with the fallout from the catastrophic lead contamination of Flint’s water supply, Nessel ran on an aggressive environmental platform. A cornerstone of her campaign was a pledge to use the full force of the office to decommission the 65-year-old Enbridge 5 pipeline, which carries tar sands oil from Canada under the environmentally sensitive Straits of Mackinac connecting Lake Michigan and Lake Huron. “It’s been deemed one of the most serious threats to the Great Lakes and our drinking water,” Wozniak said, “but I’d also say that it’s intimately linked to climate since it is carrying tar sands.”
A larger questions is whether Nessel would consider joining New York and Rhode Island in their liability suits against the industry. “I know she cares deeply about energy policy and climate change,” Wozniak said. “And while she has not specifically said that she’s going to be joining those cases I would not be surprised if she did.” Nessel declined to comment for this story.
In neighboring Wisconsin, Josh Kaul unseated another of Exxon’s chief allies, Republican Brad Schimel. That gave the party dominance in the upper Midwest because in Minnesota, Rep. Keith Ellison will replace fellow Democrat Lori Swanson and Illinois also replaced its incumbent with another Democrat, Kwame Raoul.
The oil and gas industry also lost an ally in Nevada, where outgoing Republican Attorney General Adam Laxalt had emerged as a key foe of New York’s lawsuit against Exxon. Nevada voters rejected both Laxalt’s bid for governor and elected Aaron Ford, a Democrat, over Laxalt’s hand-picked successor, Wes Duncan.
Democrats also picked up a seat in the gas-rich state of Colorado, where Democrat Phil Weiser defeated Republican George Brauchler. Weiser has not made clear how aggressively he intends to pursue climate-related cases and investigations. Weiser’s office did not immediately respond to a request for an interview, but in the past, the University of Colorado Law School professor has expressed skepticism about the suits filed against oil and gas producers. Three Colorado communities, including the City and County of Boulder, have filed liability suits against Exxon and Suncor.
And it remains unclear whether the ever-litigious Becerra, who in the two years since he succeeded Kamala Harris as California’s AG, will join lawsuits against Exxon and other oil producers. He has remained noncommittal on that topic, so it remains to be seen whether that changes now that he has a mandate from the voters.
What is clear is that the new class of attorneys general is taking office at a time when their colleagues have already begun the spade work on some novel approaches to holding fossil fuel producers accountable for the effects of climate change.
In addition to the New York suit, which relies on a 1921 anti-fraud act aimed at curbing Wall Street excesses, and a suit by Rhode Island, which uses its anti-nuisance laws to hold 14 oil and gas companies liable for pollution, Massachusetts is using consumer protection laws to argue that the industry’s failure to alert the public to the long-term risks of its products amounted to false and unfair advertising.
“One thing that’s really interesting in working with Democratic attorneys general across the country is that every office is a little bit different in how it’s structured, what powers they’ve been given, what their budgets are, what sort of authority they have,” Ulmer said. “When it comes to issue-specific questions, it truly is going to depend on the state.
“But I can tell you a number of these candidates have talked about the importance of climate change, protecting the environment, protecting natural resources, making sure that the citizens of their states have clean water and really clean air and protecting the future during their campaigns. We know that’s something they’re going to continue…once they’re fully transitioned into office.”