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State Attorneys General February 20 Update

Litigation

Illinois AG Lisa Madigan has announced a settlement with BNSF Railway Company to “resolve[] environmental concerns that arose in 2015 when a BNSF train derailed, spilling a large amount of crude oil that ignited near Galena, Ill.,” according to an Illinois AG Press Release. The Press Release states that “[f]ollowing the spill, Madigan’s office obtained an agreed court order to require BNSF to clean up the crash site and monitor it for crude oil contamination,” and BNSF spent “more than $10.5 million, including reimbursements to state and local authorities for costs incurred,” to “clean up the site.” BNSF also continued to monitor the site, “spent approximately $50,000 to repair unrelated storm damage” at the request of the city of Galena, and agreed to pay “$50,000 in civil penalties,” according to the Press Release.

Texas AG Ken Paxton has announced that his office, along with the Texas Commission on Environmental Quality, has filed petitions with the US Courts of Appeals for the Fifth and D.C. Circuits “asking the courts to review the Environmental Protection Agency’s (EPA) Final Rule regarding air quality standards for sulfur dioxide,” according to a Texas AG Press Release. The Press Release states that “[i]n making the sulfur dioxide air quality designations for Texas, EPA ignored the State of Texas’ recommended designations for these areas—designations that were made based on actual monitoring results,” and the EPA instead relied on “third-party modeling information.” The EPA’s approach had the effect of “essentially ignoring [Texas’] statutory role in the air quality designation process established by the federal Clean Air Act,” according to the Press Release. AG Paxton issued a statement that: “[t]his Rule requires expensive and excessive restrictions that will damage not only our economy, but the livelihood of citizens across the state with little to no effect on the environment.”

Regulation

On February 15, Maryland’s state legislature enacted a resolution to give “Maryland’s attorney general broad authority to bypass the governor and sue the federal government on a range of issues, an unprecedented expansion of power for the office,” according to an article in the Baltimore Sun. The article states that the bill – the Maryland Defense Act of 2017 – “allows Democratic Attorney General Brian E. Frosh to challenge the administration of Republican President Donald J. Trump without first obtaining approval from Republican Gov. Larry Hogan or the Democrat-led General Assembly” on certain issues. Prior to the resolution, “the governor and [the Maryland] General Assembly reserved the right to decide when to sue the federal government,” according to the article. The resolution “allows [AG] Frosh to initiate a lawsuit against the government for a long list of action or inaction that the attorney general deems an infringement of Marylanders’ rights to health care, civil liberties, economic security, environment, immigration or international travel.” The article notes that “[AG] Frosh had sought [Governor] Hogan’s permission to challenge the constitutionality of Trump’s travel ban,” however, “[t]he governor did not respond to the request.” Maryland lawmakers are also “weighing whether to give Frosh’s office an additional $1 million a year and five more attorneys to fight the federal government,” a proposal Maryland lawmakers say is “modeled” on Oklahoma AG Scott Pruitt’s “Federalism Unit,” a “five-attorney unit” that Pruitt created in 2010 to “challenge federal regulations, [including] to sue the Environmental Protection Agency repeatedly,” according to the article.

Advocacy

New York AG Eric Schneiderman is leading a coalition of 10 states that have sent a letter to Senators Mitch McConnell and Charles Schumer “strongly urging opposition to the Commercial Vessel Incidental Discharge Act, legislation that would dramatically weaken clean water protections by preventing New York and other states from limiting the discharge of biological pollution by commercial shipping vessels into their waters,” according to a New York AG Press Release. According to the Press Release, the bill would “take the radical step of exempting these discharges from the federal Clean Water Act.” AG Schneiderman issued a statement that: “[t]his legislation would undercut the independence of states in fighting harmful biological pollution from commercial shipping, which causes serious damage to our environment and our economy in New York.”

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Clark Kent Ervin government investigations partner Squire Patton Boggs Lawyer
Partner

As a member of the Government Investigations & White Collar Practice Group, Clark K. Ervin helps clients under investigation, or facing the prospect of investigation, by federal Offices of Inspector General, to craft, coordinate and implement strategic defenses. An integral member of the firm’s Homeland Security, Defense and Technology Transfer team, as well as our International Policy Practice, Clark also provides invaluable counsel to clients, both corporations and foreign sovereigns, on issues of national security and foreign policy.

Having served as Inspector General of...

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Benjamin D. Tarbell, Squire Paton, Government Enforcement Lawyer,
Attorney

Benjamin Tarbell draws on his experience in regulatory policy to assist clients in the technology and communications sectors, specializing in matters before government agencies including the Federal Communications Commission (FCC).

While attending law school, Ben clerked full-time for Commissioner Ajit Pai of the FCC. In that role, he worked alongside the Commissioner’s advisors to draft statements, speeches and agency publications, and advise the Commissioner on FCC issues including the Broadcast Incentive Auction, media ownership, market competition and mergers, AM Radio spectrum allocation and licensing, program access, program carriage, public safety and Next-Generation 911, Connect America funding, Universal Service Fund compliance, the TCPA and Title II forbearance.

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