Fighting Climate Change with the Law

by Mike Dunphy

VT Attorney General TJ Donovan. Photo by Renee Greenlee

“This is a fight,” says Vermont Attorney General TJ Donovan, as if on the stump, rather than the well-worn sofa in his office on the third floor of the Pavilion Building in Montpelier.

At stake is Vermont’s legacy of placing environmental protection ahead of industrial profit, a value that is under increasing threat given the current political atmosphere in Washington.

In one corner of the ring is a group of attorneys general from primarily “blue states,” such as Donovan;  in the other are the forces of corporations, lobbyists, and politicians backed by the fossil fuel industry and their ancillaries, which now includes the executive branch of the federal government. Indeed, the past two years have seen significant efforts by the Trump administration to dismantle, undercut, and roll back decades of environmental regulations, from easing restrictions on air and water pollution to allowing more energy drilling and mineral extraction on public lands.

And that’s just the tip of the melting iceberg.

Some efforts are successful, some not, but ever more end up in the courts, which have become the front line in the battle over climate change and environmental policy. That attorneys general are part of the process is nothing new, but the significant uptick is perhaps surprising to those who traditionally saw that role as a function of the legislature.

“Why you see the acceleration of actions by attorneys general,” Donovan explains, “is that it’s in response to what’s happening [in Washington],” where Congress, the executive branch, and environmental agencies have largely been abdicating responsibility or not enforcing their own laws. “The powers and tools have always been here, but you are seeing them used in an unprecedented way and, frankly, in a much more public way.”

For Donovan and many of his colleagues, the courts then become the arbiter of justice.

“When you talk about it in the frame of justice,” he points out, “people have a fundamental right to clean air and clean water.”

This concept of justice achieved additional prominance in Vermont in 2007, when environmental protection became a stand-alone division in the attorney general’s office, on equal footing with the five other divisions:  civil, criminal, public protection, human services, and general counseling and administrative law. Prior to that the attorneys who did environmental protection work were part of a unit within the public protection division.

Another reason attorneys general around the country have stepped deeper into the fight is that they actually have the tools and powers to bring to it.

“We have the legal recourse,” Donovan explains. “We can go to court and force the federal government to implement and enforce the Clean Power Plan and stop them from rolling back emissions standards and dismantling the EPA.”

There will be wins and losses, though, Donovan admits. On the win side, Washington Superior Court approved the attorney general’s settlement with Moretown Landfill in May, resulting in  $180,000 in civil penalties and a $20,000 allocation to fund a supplemental environmental project to provide residential compost bins, food scrap collection buckets, and kitchen countertop compost containers to Vermonters at a discount. A month earlier the attorney general announced a settlement with County Waste and Recycling Service, aka, Ace Carting, for violations of Vermont’s waste transportation rules, netting the state $49,500 in civil penalties.

In the loss column is a ruling in July by Washington Superior Court Judge Mary Miles Teachout, who ordered the AG’s office to pay almost $66,000 in legal fees in three cases over access to public records, a ruling Donovan accepts with a hint of humility and defiance.

“I may have a political and a philosophical debate with those folks,” Donovan reflects, “but I will defend their right to access the legal system and hold us accountable when we make a mistake. And we are going to do the same with them.”

Putting aside the legal and moral question of access to public records, it’s important to note that the aim of this litigation was to challenge the attorneys generals’ own investigations of Exxon Mobil’s denials of climate change, and that it was filed on behalf of the Energy & Environment Legal Institute—a coal-funded non-profit that claims to be a “key part of President Trump’s transition team ensuring sound and reasonable energy and environment policy-making returned to Washington after decades of overzealous regulatory action”—and the Free Market Environmental Law Clinic, which “seeks to provide a counter-weight to the litigious environmental movement that fosters an economically destructive regulatory regime in the United States.”

Nationally, Donovan has joined several attorneys general in multiple lawsuits, as in 2017, when Vermont, New York, Maryland, Washington, Massachusetts, and the District of Columbia challenged the EPA’s overturn of a ban on the pesticide chlorpyrifos, despite the EPA’s own studies that show the chemical to have dangerous effects, particularly on children. This effort was successful, thanks to a ruling on August 9 that ordered the EPA to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.

August also saw Donovan joining a coalition of 20 attorneys general to challenge the federal government’s plan to roll back limits on tailpipe emissions from cars and trucks. In a press release, the Vermont Attorney General’s office wrote, “This decision upends decades of cooperative state and federal action to protect our residents. We are prepared to go to court to put the brakes on this reckless and illegal plan.”

Coalitions like this not only give added media coverage and weight to the challenge, but also provide a stronger case, Donovan says.

“It has been a force multiplier in terms of legal resources, tools, and, frankly, the intellectual firepower. We wouldn’t be nearly as successful if we didn’t have the collaboration and partnerships with other states. It’s not just the number,” he said, referring to the combined resources several states together can bring to bear.

Next on Donovan’s environmental to-do list is the PFOA pollution case in Bennington. Perfluorooctanoic acid, used in the production of Teflon and similar materials, was detected in private drinking water wells in the area around the former Chemfab/Saint-Gobain facility in North Bennington. The potential effects on human health are many, including the growth, learning, and behavior of babies and older children, the lowering of a woman’s chance of becoming pregnant, interference with the body’s natural hormones, increased cholesterol levels, harmful effects on the immune system, and increased risk of cancer.

A partial settlement was reached in 2017 that forced Saint-Gobain to fund municipal water line extensions, costing an estimated $20 million, and required it to conduct an expedited investigation in the eastern portion of the Bennington site.

“We’ve made some progress and have gotten access to clean drinking water for half the folks,” Donovan said. “We have a long way to go to finish that job and get clean drinking water to the other half. That’s a big deal and something that I care about.”

Then, of course, there’s the election in November, when Donovan will be running against Republican state representative Janssen Willhoit, who was chosen by the party to run for attorney general in the general election after primary winner H. Brooke Paige withdrew his candidacy to run for secretary of state.

Should Donovan win re-election, Vermonters can expect the same aggressiveness on environmental policy going forward—a trait Donovan intimately links to his Green Mountains upbringing.

“It’s a value of our state that we protect our landscape. We’re not going to stand by and let this happen without a fight.”

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