State AGs Suing Federal Agencies Over Rule Rollbacks

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By Cheryl Bolen

Democratic attorneys general, following the Republican playbook, are banding together to file lawsuits challenging federal agencies as they roll back Obama-era regulations.

“That’s the role we’re going to be playing—very hard on that—and I think that we’re going to have a pretty receptive federal judiciary,” said Karl Racine, attorney general of the District of Columbia and co-chairman of the Democratic Attorneys General Association, a political organization.

To the extent that the Trump administration seeks to change regulations on the environment, water, food safety, financial services and the like, Democratic AGs will make sure it does so in an appropriate and legal way, Racine said.

And in the U.S. justice system, appropriate and legal doesn’t mean immediate, arbitrary, capricious, without any justification or without any assertion of facts, Racine said.

Borrowing From GOP

Racine spoke at an event hosted by the Center for American Progress, a liberal-leaning research and educational institute, about the impacts of President Donald Trump’s deregulatory agenda.

The reason attorneys general are stepping up now is they have a primary obligation to ensure their states’ residents are protected, including making sure there isn’t unnecessary and illegal federal action that could harm residents, Racine said.

This is not new, and during President Barack Obama’s administration, Republican attorneys general were well organized and led a legal assault on just about every action that the former president sought to take, Racine said.

Although Republicans lost the “overwhelming majority” of those cases, they scored a few significant victories and were able to forestall Obama’s legislative and regulatory priorities, especially in the areas of environment and health, he said.

Lawsuits Filed

State attorneys general are in many ways leading the charge and monitoring the actions of this administration with respect to regulation, Racine said.

Massachusetts Attorney General Maura Healey July 6 led a coalition of 19 states in suing the Department of Education for abandoning critical federal protections that were set to go into effect on July 1, according to a statement from her office.

The complaint, filed in the U.S. District Court for the District of Columbia, alleges that the Department of Education violated federal law by abruptly rescinding its borrower defense rule, which was designed to hold abusive higher education institutions accountable for cheating their students.

Another example is the Environmental Protection Agency’s methane rule, Racine said. EPA Administrator Scott Pruitt implemented a 90-day administrative stay of a key requirement of the methane rule, designed to limit pollutants and greenhouse gases, he said.

Confident of Victory

But earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit in a per curiam decision said that the EPA’s decision to impose a stay of the rule was arbitrary, capricious and in excess of its statutory authority, Racine said.

The actions of the EPA and DOE “are not even close calls in the law,” Racine said. The D.C. Circuit’s decision shows the “purpose and gall” with which many in this administration are acting, he said.

In both cases, the rules were final and set to go into effect, which is why they won the case on methane and why “I’m very confident that we will win the borrower defense case,” Racine said.

Rescission Process Key

When looking at rules, it is important that AGs are not just acting in a way that is consistentr with their personal or political beliefs, but that they actually have legal standing and a meritorious claim, Racine said.

The key is for lawyers including AGs to understand the process of rescission, Racine said. The rulemaking process includes specific legal steps such as notice, a public comment period, analysis, review and publication.

“What we’ve seen in the Trump administration and in some of those rules identified is that they have not honored the process for rescission,” Racine said. That, more often than not, requires the same type of notice, analysis and legal justification that rulemaking does, he said.

Where the administration has not followed those steps is where the meritorious legal action lies, and that’s where the state AGs will be, Racine said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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