Vermont AG office wards off Trump
I don’t think anyone could have anticipated the number of rollbacks we’ve seen on the federal level, so we’ve been very active and we’re taking our job very seriously.
— Robert McDougall
VERMONT — As three and a half years of Trump administration rollbacks of various rights and protections accumulated, one group of elected officials — state attorneys general — is receiving national attention for its role in holding the federal government accountable.
The chief law enforcement officers in their states, state attorneys general also challenge the federal government and federal agencies for rules and regulations that the AGs believe violate the Constitution or pre-existing laws.
In that role they serve as “the first and last line of defense” for many protections and civil liberties, in the words of Robert McDougall, who is chief of the Environmental Protection Division of the Vermont Attorney General’s Office (AGO).
State AGs have held particular political muscle in the Trump era. They began flexing those muscles only days after the President was sworn into office in January 2017. A lawsuit signed by 16 state AGs, including Vermont Attorney General T.J. Donovan, successfully struck down Trump’s so-called “Muslim ban” prohibiting foreign nationals from seven countries from traveling to the U.S.
In Vermont, two departments within the Vermont AGO — the Environmental Protection Division and the Civil Rights Unit — have been particularly busy conducting court challenges to federal agencies.
On the environmental side, McDougall and his team are working to fight the more than 100 actions that the federal government has taken to reverse environmental protections since Trump took office. They range in focus from air pollution and emissions to drilling and extraction.
McDougall, who began working in the Vermont AGO in 2002, said Trump’s direction on environmental protection is a change from past administrations.
“I don’t think anyone could have anticipated the number of rollbacks we’ve seen on the federal level, so we’ve been very active and we’re taking our job very seriously,” he said.
He explained that there are multiple ways that the office can work in conjunction with other state AGOs to make itself heard on the national scale, depending on where a certain rule or regulation is in its legislative process.
The first stage at which a state AGO can start building its defense is when a rule is first proposed by Congress or a federal agency. The state AGO can then, if it believes the proposed rule to be unlawful, file a comment or send a letter to Congress or the agency advocating against the rule. Once a rule or regulation becomes finalized, the AGO would file a notice of intention to sue and then file suit.
However, the Vermont AGO rarely files suit against a federal rule on its own. Instead, it partners with like-minded states by signing onto what is known as multistate litigation. These multistate lawsuits are usually led by larger states such as California, New York, Maryland and Massachusetts, which have more resources and personnel, and are signed by other AGOs.
“Pollution knows no borders,” said McDougall. “Regulations and actions that affect power plants and generators of greenhouse gas emissions even outside of Vermont can affect Vermont’s air quality.”
The state AGO can also file what is known as an amicus brief, or friend of the court brief, when a particular state or non-governmental organization is involved in a lawsuit for which the AGO would like to show support.
Since January 2017, the Vermont AGO Environmental Protection Division has filed 90 comments, letters or statements; signed onto 32 multistate lawsuits; and filed 21 amicus briefs — for a total of 143 actions.
McDougall observes that this has been an increase from the previous administration, although he argues that part of this is because of the nature of the relationship between the president and the state AGs.
“The positions change when the administration changes,” he said. “The change of administration has not only raised the number of actions, but also changed some of the posture of the cases we’d been involved in up to that point.”
This was the case with the Clean Power Plan. The Plan was an Obama administration policy requiring states to meet standards for reducing their carbon dioxide emissions, which was challenged by a group of Republican state AGs via a multistate suit. In response, Vermont AG Donovan partnered with 25 states, cities and counties to defend the federal government against the Republican suit. However, in 2017, Trump announced it would repeal the Clean Power Plan, at which point the Vermont AGO “switched sides,” McDougall said, and refocused its efforts toward opposing the reversal.
Other important issues the Vermont Environmental Protection Division has been active in since Trump’s arrival in office have included air pollution and toxic substances. The Division has been involved in multistate litigation against vehicle emissions rollbacks and has challenged the EPA’s decision to exempt categories of mercury products from its requirement that organizations report certain inventories. This challenge is led by Vermont through the U.S. Second Circuit Court of Appeals and has received support from other states through amicus briefs.
“Our division is responsible for enforcing Vermont’s environmental laws and regulations,” McDougall said. “We could not have anticipated that we’d be sitting here three-and-a-half years in with more than 100 federal rollbacks, so I’m glad I have a dedicated team of lawyers that are passionate about their jobs, about being public servants, and about Vermont’s environment.”
Another important focus of states’ AGOs efforts against Trumpian rollbacks has been in the field of civil rights. Through the Civil Rights Unit, the Vermont AGO has joined multistate litigation pertaining to LGBTQ+ (lesbian, gay, bisexual, transgender, queer and allied communities) rights, health care and the Affordable Care Act, immigration, and reproductive rights. And this unit too has seen an increase in action at the federal level since Trump took office.
Emily Adams, assistant attorney general in the Civil Rights Unit, believes her position might be proof of this. Before Adams joined, Julio Thompson, the unit’s director, was the only attorney in the unit.
“I was hired as a direct result, I would say, of the increased need for enforcement in the civil rights realm,” said Adams. “What we were seeing in 2017 was that there was a lot more going on at the national level, which AG Donovan deemed important enough to add another role in the office, based on the greater need and on AG Donovan’s priorities surrounding civil rights.”
Some of the unit’s work since has included multistate action opposing the ban on transgender individuals in the military, an amicus brief supporting recent employment laws prohibiting workplace discrimination based on sexual orientation or gender identity, and 12 major actions pertaining to reproductive rights, such as protecting access to family planning, challenging restrictive abortion laws, and opposing rollbacks to contraception coverage.
On the immigration front, the Civil Rights Unit has completed actions to protect rights for recipients of Deferred Action for Childhood Arrivals (DACA), prevent child separation at the border, and oppose childhood detention. One major success was Vermont’s participation in a multistate suit that effectively blocked the federal government from adding a citizenship question to the federal census.
One difference between the Civil Right Unit and the Environmental Protection Division is in the selection of which multistate processes to join. While it is relatively easy to demonstrate that environmental issues effect the environment as a whole and therefore Vermont, in the case of civil rights litigation, the Civil Rights Division must focus more on proving its standing, or stakes, to the court.
“To join any case, you need to be able to show that it does affect Vermont in some way and is relevant to our population,” said Adams, “so we get many requests from other states and we select which ones to join based on our office’s priorities and based on the cases we think will most adversely affect Vermonters and their civil rights.”
However, in the Civil Rights Unit as well as the Environmental Protection Division, multistate processes are an extremely useful tool for helping Vermont promote its priorities on a national scale.
“Without multistates, there is no way a unit of our size could’ve independently filed the amount of lawsuits we’ve joined,” said Adams. “It wouldn’t be possible financially or with our manpower. So it’s a great mechanism for a small state like Vermont to be able to engage on a national level.”
Echoed McDougall, “There’s obviously a much louder voice for Vermont when we can partner with other bigger states.”
In both areas as well, the actions of the division reflect the values of Attorney General Donovan himself.
“AG Donovan has to sign off on any multistate that we agree to — it’s his signature on the filings,” said Adams. “Like all of us, he’s taken an oath to protect Vermonters, and Vermonters’ rights, so that weighs heavily into any decision any of us make.”
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