This article was originally published in Talking Points Memo. Read on the original site here.
More than 8 million people die from air pollution and fine particulate matter globally every year, according to the BMJ, a peer reviewed medical journal. Of that number, over 5.13 million people die from ambient air pollution resulting from fossil fuels use. Experts say that deaths from air pollution are also on the rise, and are currently expected to double by 2050. In the U.S. alone “350,000 may die annually from pollution produced by the burning of fossil fuels.” According to the American Lung Association (ALA) more than one-fourth of Americans live with “air pollution that can hurt their health and shorten their lives.” Of course, risk and exposure are themselves not borne equally; cities in the western U.S., along with communities of color, disproportionately bear the brunt of air pollution’s public health harms.
These numbers would likely be much higher if not for the Clean Air Act (CAA), which has proven both enormously popular and successful in saving hundreds of thousands of lives since its passage in 1970. In 2020 alone, the CAA was projected to prevent 230,000 premature deaths in the US, according to the EPA.
Republican Attorneys General, and their industry backers, want to gut it.
A slate of CAA cases were argued before the D.C. Circuit last September, all challenging new Biden administration emissions and pollution control standards. Each suit, though differing on individual details, ultimately seeks to challenge long-standing air pollution regulation authorities that undergird the bedrock environmental law. These cases, brought forth by both Republican AGs and polluting industry actors, could severely threaten regulators’ ability to keep our air clean.
Why would AGs pursue such cases? Their hyper-polluting donors, and co-litigants in all, stand to benefit (immensely) from it.
NRDC v. NHTSA
In NRDC v. NHTSA, the issue at hand is National Highway Traffic Safety Administration’s (NHTSA) attempt to update the Corporate Average Fuel Economy (CAFE), a tailpipe emissions standard for future vehicle fleets.
The update came, in part, in response to the Trump administration’s attempted massive rollback of CAFE standards. Despite Biden’s restorative proposals engendering criticism from some environmentalists for not being aggressive enough, Republicans, Big Auto, and others rallied quickly against the rule. And given right wing judicial dominance, these groups naturally sued to combat the adoption of any climate policy that might actually meaningfully reduce emissions.
State AGs, led by Ken Paxton of Texas — and including Leslie Rutledge, current Lieutenant Governor of Arkansas, Daniel Cameron, former AG of Kentucky, Lynn Fitch of Mississippi, Doug Peterson, former AG of Nebraska, Alan Wilson of South Carolina, Sean Reyes of Utah, Dave Yost of Ohio, Austin Knudsen of Montana, Thomas Rokita of Indiana, and now-Governor Jeff Landry of Louisiana — as well as counsel for the American Fuel and Petrochemical Manufacturers (AFPM) sued NHTSA over the rule.
The partnership is baffling given that AFPM members include some of the largest polluters in the country — organizations with ongoing histories of poisoning community members in some of these AGs’ own states.
Formosa Plastics Corp., a sitting member on AFPM’s 2023 Board, is actively fighting to emit hundreds of tons of air pollution (including known carcinogens) in St. James Parish, Louisiana. One of its Baton Rouge manufacturing plants has been identified as allowing “‘high priority’ Clean Air Act violations for multiple years in a row.” In 2021, Formosa had to pay a $2.85 million in federal fines “for injuring its workers and endangering public health during a series of explosions, fires and toxic chemical releases from its Point Comfort, Texas, petrochemical plant,” according to a statement from the Center For Biological Diversity. This paired with a $50 million civil settlement with Texas residents in 2019, over “[Formosa’s] discharge of billions of plastic pellets into Texas waterways from the same plant.” At the time, the presiding judge “called [Formosa] a ‘serial offender’ for Clean Water Act violations spanning decades.”
Chevron U.S.A, another corporation with a representative on AFPM’s board, agreed to a $2.35 million settlement in 2024 related to environmental violations at an Ohio refinery. The agreement related to the company’s “historic industrial discharges of oil or hazardous substances – including polycyclic aromatic hydrocarbons (PAHs), arsenic and lead – at the Duck & Otter Creeks NRDA site near Toledo, Ohio.” Another company represented on AFPM’s Board, Energy Transfer, is also implicated in the settlement and the pollution which preceded it.
Marathon Petroleum, a company with two representatives on AFPM’s board, spilled more than 40,000 gallons of diesel in Southwest Indiana in 2018. A Marathon refinery plant in Texas saw its benzene emissions more than double from 2018-2021, and were then more than twice the EPA’s “action level” for the gas. In 2015, Marathon also settled with the EPA over Clean Air Act violations from facilities in Ohio, Kentucky, and Indiana.
That’s Not All
NRDC is unfortunately far from novel. AFPM also filed suit against California’s long-standing EPA waiver that allows it to also regulate emissions, so long as said standards meet the minimum federal standard established by the EPA. Seventeen states, this time led by Ohio, also filed suit against the regulation.
California has held this waiver from the EPA to more strictly regulate emissions for various pollutants for more than 50 years, and gained specific license from the EPA to regulate GHGs from cars and light duty trucks in 2012. Despite this long – and effective – legacy, 17 Republican AGs then filed suit to seek that the waiver be declared unconstitutional and ultimately be rescinded. This is overtly bad faith, given that California’s waiver merely allows it the right to set more stringent regulations than those set at the federal level, and offers other states the option of joining California’s policy. The DC Circuit ultimately agreed with the waiver’s defenders, and ruled in unanimous favor of California’s waiver just this past week.
However, it remains to be seen whether the Republican AGs and industry actors who elected to pursue this frivolous litigation in the first place will seek to push the issue before the Supreme Court, and if that Court will ultimately take it. Neither possibility seems particularly unlikely, given that AGs and industry have already proven themselves extraordinarily litigious, and this Supreme Court is notoriously partisan, corrupt, and anti-environmental.
Though the win before the DC Circuit is an important one, the dire potentials of the suits remain in question, as AGs seem intent on doing all that they can to service the climate apocalyptic ideals of their industry friends; as they have done again and again.
But Wait, There’s More
Another industry and AG-led attack on clean air emerged in the D.C. Circuit court last year. Texas v. EPA is a suit challenging the EPA’s implementation of its “Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards,” which were finalized by the agency in December 2021.
As per the agency’s authority (as designated under CAA) to establish vehicle emissions standards, the rule established a more stringent regulatory regime for vehicular greenhouse gas emissions than those set previously by the Trump Administration. As a result, fifteen states, led by Texas’ Attorney General, Ken Paxton, again joined by industry actors like AFPM, petitioned the D.C. Circuit for review in 2022.
Petitioners are attempting to argue that EPA both surpassed its designated authorities under CAA and does not have clear authority to set the new, more protective, standards. This is a bizarre approach, given that the EPA’s authorities on this matter are clear under the Clean Air Act’s Section 202(a)1.
Even so, the challenge — if successful — could pose a dire threat to the Clean Air Act, because such a ruling could functionally gut the EPA’s mandate to regulate emissions relating to the transportation sector, and would likely have radiating consequences beyond it. This is dangerous not just because the transportation sector is hugely polluting, and the climate (and public health) costs of such a defanging would be sweeping and immense. But also because the Clean Air Act is a bedrock environmental law that is both extraordinarily popular and effective, and such a precedent would further erode the federal government’s basic ability to regulate against the dangerous pollutants and deadly particulates promulgating our air.
Who Do AGs Work For?
Given the destruction these firms have caused, the question must be asked: why are AGs willing to deploy public resources — by way of frivolous lawsuits — to aid antagonists of the public interest in their own states?
Follow the paper trail and you’ll find that it’s likely because AFPM (and its member organizations) are reliable donors for AGs and for their governing organization, the Republican Attorneys General Association (RAGA).
As tracked by the Center for Media and Democracy, AFPM donated $246,720 from 2014-2016, $60,625 in 2017, $220,725 from 2019-2020, $40,000 in 2021 and another $75,150 in 2023. In sum, over the last ten years, AFPM organizationally has funneled at least $643,220 to RAGA overall. Member groups have also funneled money to RAGA, including Valero ($225,000 in 2023,) Exxon ($100,000 in 2023,) Chevron ($25,000 in 2023), and more.
Such a favorable financial dynamic means that individual AGs benefit hugely from AFPM dollars, even when the people of their states don’t, and — as the numbers make clear — the people of their states don’t.
But beyond simple mutually beneficial financial relationships, these cases highlight just how coordinated right-wing organizations are in attempting to influence policy at the state and national level. For example, Ohio v. EPA has seen significant industry participation in the suit via amici, or friend of the court, briefs. Those briefs reveal even more entrenchment between the offices, interests, and activities of Republican AGs, industry actors, and the dark-money influence peddling organizations which live in between. One specific amici, filed on behalf of the Western States Trucking Association (WSTA), illustrates this point well. WSTA’s brief was filed by Robert Henneke and Theodore Hadzi-Antich, Texas Public Policy Foundation attorneys. TPPF is the Texas branch of the Koch-backed State Policy Network. While it styles itself a network of independent, non-partisan, think-tanks, SPN is actually a hard-right hub of state-level orgs pushing “an extreme right-wing agenda that aims to privatize education, block healthcare reform, restrict workers’ rights, roll back environmental protections, and create a tax system that benefits most those at the very top level of income,” as explored by the Center for Media and Democracy.
TPPF, and Henneke & Hadzi-Antich specifically, are no strangers to supporting (and being supported by) Republican Attorneys General. Indeed, TPPF and Texas’ Attorneys General office (itself a co-litigant in Ohio v. EPA), are well acquainted with each other. Henneke and Hadzi-Antich have even previously served as Texas’ outside counsel in that states’ attack on other issues of environmental law and policy.
Fossil Fuel Front Groups Don’t Care About You
And neither do the AGs who use your tax dollars in ardent defense of their apocalyptic corporate bottom line.
Taken together, these three cases pose a deadly threat to the very basis of the Clean Air Act, and to our collective right to breathe non-poisonous air. With every suit filed and every brief sent in collaboration with or support of these polluters, their front groups, and their homicidal profit projections, Attorneys General are sacrificing that right, and choosing their own personal profit (and that of their corporate backers) over the very people they are charged to defend.