The business of suing the federal government

Recent headlines about the Environmental Protection Agency’s “endangerment finding” and the challenges it faces could be confusing to many a reader because of all the parties involved.

Attorneys general of 25 states filed suit, requesting intervenor status, to uphold the current EPA’s move to scrap what is called the “endangerment finding” by former President Barack Obama’s EPA. In short order, 24 states and a handful of cities filed suit on the other side in March. This came in addition to a lawsuit already filed by environmental groups to challenge the current EPA’s move and to reinstate the original 2009 finding.

The agency’s findings had been that carbon dioxide and other greenhouse gases pose a danger to public health and general welfare under the Clean Air Act. If that finding goes away, then a “key part of the federal government’s legal authority to regulate emissions from vehicles, power plants, and other sources could soon disappear,” explained Stanford University’s Woods Institute for the Environment, in a news release.

Moreover, it might not be easy to rebottle that genie. A few Supreme Court rulings have likely made it more difficult to issue a similar finding again, absent specific instructions from Congress. And Congress seems pretty gridlocked on many environmental issues.

State attorneys general on the national stage

As important as this issue may be on its own, it is not an isolated example. These days, state attorneys general seem to do this all the time: They line up to sue the federal government, either en masse or along roughly partisan lines, to try to push America’s federal bureaucracy to act or not act.

This is the job that used to be Congress’s primary role through legislation and oversight.

The attorneys general also engage in similar litigation against companies. America saw this in recent memory when the attorneys general went after many drug companies and pharmacies connected to the “opioid” (but really the fentanyl) epidemic.

The education of Russell Coleman

The Washington Examiner was interested in how this dynamic arose and thus sought out one of the attorneys general deeply involved in the current endangerment finding dispute: Russell Coleman, a Republican who was elected attorney general of Kentucky in November 2023.

(Washington Examiner illustration; Getty Images)

Coleman, 50, was previously U.S. Attorney for the Western District of the state, and an FBI agent before that. Coleman was elected in 2023 with 58% of the vote, winning 117 of the state’s 120 counties. He assumed office at the beginning of 2024.

“My background before taking this job was not in environmental law, was not in environmental science,” he admitted to the Washington Examiner in a phone interview in early April. Rather, he was “coming at this from the perspective of law enforcement.” That might have made him feel awkward at first, but it also provided useful ideas for how to tackle the problem.

Coleman explained the basic law enforcement perspective as “you go to where the threats are.” And as attorney general, he found those threats to Kentucky residents coming from some unexpected quarters.

“I came to this job to go after those that were drug trafficking here, child predators, that was all my background,” he said. “But what I
found was the threat that we were seeing in this commonwealth, particularly during the latter year of the Biden administration, was the commonwealth versus the Environmental Protection Agency.”

Another thing about the job that did not align with his expectations was his vital role in the state’s utility regulation.

“I have the statutory duty to advocate on behalf of ratepayers … before our Public Service Commission.… And I did not fully appreciate — showing a bit of leg — the import of that role” while running for office, Coleman said.

There are two parts to his advocacy mandate on utilities. The Kentucky state attorney general is supposed to push for reliable, affordable utilities for all of the state’s ratepayers, not just for individuals. That includes Kentucky’s manufacturing sector, which is a little bit personal for Coleman.

“My father worked in manufacturing,” he told the Washington Examiner. “His plant existed in the western part of this state because of our utility rates, because we were so competitive. Because in the waterway system, we could get access to Appalachian coal and west Kentucky coal, that drove so much of our manufacturing base here.”

What Coleman saw coming from the EPA, particularly under former President Joe Biden, was an existential threat to Kentucky’s coal-fired economy.

“We were looking at losing our competitive advantage,” he said, and the threats were pretty thick.

In what he swears was “not an embellishment,” Coleman used to “carry around a spreadsheet in my suit coat pocket of the number of matters Kentucky was adverse to the United States.” And after a while, it dawned on him that they were going about it all wrong.

“The tactical fight was one at a time,” tackling regulatory moves by the EPA on an issue-by-issue basis, whereas the “strategic fight, working with [Republican West Virginia Attorney General John McCuskey], was to go after the foundation of all this bad policy,” i.e., the EPA’s endangerment finding with its “foundational sophistry,” Coleman said.

How state attorneys general have changed

Coleman took the lead on this issue, but he did not act alone. West Virginia’s legal apparatus worked with his office in Kentucky to develop the legal strategy, and there were, all told, “24 other states that joined us when we stepped in with our filing,” he pointed out.

“We collaborate a great deal in the AG world,” he explained. “I can’t speak to what they do in Congress. They talk a lot. But I know that attorneys general act.”

Coming into the job, Coleman did not “fully appreciate the level of collaboration between attorneys general.… It is a daily degree of engagement. There is not a day that goes by that I’m not on the phone, texting. Our staffs are talking, every day. Particularly with those in a similarly situated space like now-AG McCuskey over in West Virginia: We have been together on so many of these environmental fights because we are in the same spot.”

Many of these colleagues become friends, he said. “I would analogize it to my time as a United States attorney. You spend time in the trenches, you are similarly situated, in what is a unique job.”

This close collaboration did not always used to be the case. In previous generations, being an attorney general was a fairly parochial job. You oversaw most of the legal actions and some related regulatory matters in your state and left matters in other states alone, mostly.

Now, state attorneys general weigh in on all manner of issues. Coleman thought that the Master Settlement Agreement with the tobacco companies in 1998 had a lot to do with redefining their roles.

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In that case, Congress declined to regulate tobacco companies further, and so 46 states brought suit, eventually exacting major concessions and over $100 billion for state coffers. The number was initially projected to be over $200 billion, but the incidence of Americans smoking has declined.

Sometimes the attorneys general act in concert; other times, their interventions break down along roughly partisan lines. That’s what happened in the endangerment finding case, with 25 states working to scrap it and 24 states working to keep it in place.

Jeremy Lott (@jeremylottdiary) is the author of several books, most recently The Three Feral Pigs and the Vegan Wolf.

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