Multistate Attorneys General Update
July 2019
In July 2019, coalitions of AGs:
- Filed two new multistate lawsuits against the federal government;
- Filed twelve multistate amicus briefs either in the U.S. Supreme Court or lower courts;
- Submitted eleven multistate letters or comments to Congress, federal agencies, or other entities concerning policy or regulations;
- Completed six multistate settlements with corporations.
One of the most significant multistate actions in July was the announcement that 50 AGs (48 states plus D.C. & P.R.) had reached agreement on a $600 million settlement with credit reporting company Equifax over data breaches that occurred in 2017. This is by a significant margin the largest data breach-related AG settlement in history. In addition to the monetary settlement, Equifax also agreed to institute a new information security program and other internal procedures. Massachusetts and Indiana were the only states not to join this settlement, as they are continuing their own investigations of the firm.
Even beyond the Equifax settlement, it was an active month for settlements between AGs and corporate entities. Premera Blue Cross also reached an agreement pertaining to consumer data breaches, and American Electric Power supplemented earlier settlements with AGs by agreeing to reduce air pollution from several coal-fired power plants and paying for new clean air projects. Meanwhile, five AGs joined the U.S. DOJ in reaching an antitrust settlement with T-Mobile and Sprint regarding their proposed merger. Despite this agreement, however, 14 state continued their challenge to the merger — illustrating not only how federal and state litigators often conflict on antitrust issues, but that splits occur among the states themselves.
Photo credits: Rich Pedroncelli, Associated Press
Other interesting developments included a multistate amicus filings across a range of issues, including immigration, guns, and rights of transgender individuals. AGs collaborated on several letters and comments to federal agencies, including a bipartisan letter pertaining to consumer protection issues surrounding cannabis-related products. Also notable was Texas AG Ken Paxton’s taking new action against San Antonio’s sick leave ordinance and Minnesota AG Keith Ellison creating a new “Wage Theft Unit” in his office.
The details of these multistate activities and significant single-state developments are noted below and in the respective databases under the “Multistate Activities Data” link above.
[7/17, New Jersey v. Mnuchin, 1:19-cv-06642, S.D.N.Y.] Four Democratic AGs, led by New Jersey’s Gurbir Grewal, brought a lawsuit seeking to strike down a new IRS final rule that requires taxpayers to subtract the value of any state and local tax credits they receive for charitable giving from their federal charitable contribution deduction. According to the AGs, this would prevent residents of the plaintiff states from obtaining a full federal charitable deduction whenever they contribute to local governments and other qualifying institutions and receive tax credits in return. Currently, about 33 states have developed charitable contributions programs that provide a state or local tax benefit in return for a charitable contribution to a qualifying entity. The IRS previously treated charitable contributions made pursuant to these programs as fully deductible under federal tax law.
[7/31, Cloud Peak Energy v. U.S. Department of the Interior, 2:19-cv-00120, D. Wyo.] Two Democratic AGs, California’s Xavier Becerra and New Mexico’s Hector Balderas, filed a motion to intervene in a case seeking to defend the Obama-era Valuation Rule. According to the AGs, the Rule “ensures taxpayers and states receive fair value for oil, gas, and coal extracted from public and tribal lands.” Technically, the AGs are seeking to intervene as respondents on the side of the Department of the Interior. However, the states want to join the case due to concerns that the federal government will not adequately defend the rule in court, given that the Administration is seeking to reverse the rule in administrative proceedings. Both AGs have frequently litigated against these attempts to reverse the rule in separate lawsuits.
Significant Developments in Existing Multistate Lawsuits
[7/1, California v. Trump, 19-16299, 9th Cir.] The United States appealed a district court order enjoining the federal government from building a border wall in California. Several states had filed the original complaint in the case in March to stop wall construction (in 3:19-cv-00872). Meanwhile, on 7/26, the U.S. Supreme Court issued a stay of an injunction also blocking the wall in the related and parallel proceeding in Sierra Club v. Trump (19A60). The merits of the appeals remain pending, though the issuance of the stay means that wall construction may proceed for the time being.
[7/5, 7/9, Texas v. United States, 19-10011, 5th Cir.] 21 Democratic AGs, led by California’s Xavier Becerra, provided supplemental briefing on July 5th in this existing case pertaining to the legality of the Affordable Care Act. The briefing had been requested by the Fifth Circuit on June 26. In the filing, the AGs argue that they have standing in the case by outlining the direct negative impacts that the dismantling of the ACA would have on their states. They further argue that regardless of the federal government’s abrupt decision to abandon their defense of the ACA, active legal issues remain before the Court, including the continued conflict between the positions taken by Texas’ plaintiff state coalition and the federal government. The Fifth Circuit held oral argument in the case on July 9th, and a decision is pending.
[7/10, D.C. v. Trump, 18-02486, 4th Cir.] A three-judge panel of the Fourth Circuit unanimously dismissed a lawsuit brought by the Maryland and D.C. AGs alleging that the operation of the Trump International Hotel is a violation of the Constitution’s Emoluments Clause. This was an appeal from a district court decision that had allowed discovery in this case, which the AGs filed in June 2017. The panel relied upon a finding that the states lacked standing to sue. AGs Karl Racine and Brian Frosh issued a joint statement following the decision, stating “the idea that the District of Columbia and Maryland are not harmed by the President’s violation of the Constitution is plain error. We will continue to pursue our legal options to hold him accountable.”
[7/11, Oregon v. Azar, 9th Cir., 19-35386] Sitting en banc, the Ninth Circuit rejected the plaintiff states’ emergency motion for stay of the challenged rules, which involve Title X family planning funds. The appeal will continue as the rules go into effect.
[7/7; 7/15, New York v. U.S. Department of Labor, 19-5125, D.C. Cir.] 12 Democratic AGs filed a brief in the United States Court of Appeals for the District of Columbia Circuit in this existing case. The district court had previously struck down the challenged U.S. Department of Labor’s Association Health Plan (AHP) Rule.
[7/30, Texas v. United States, 7:15-cv-00151, N.D. Tex.] The state plaintiffs and federal defendants reached agreement on the handling of Affordable Care Act payments that the states had claimed were unconstitutional. In October 2015, the states sued over a regulation that they alleged forced states to effectively pay an unconstitutional tax to Washington in order to fund Obamacare. According to the states, the law “coercively threatens to choke off Medicaid funds for the health needs of millions of citizens.” The district court had granted partial summary judgment for the states in March 2018, but the judgment had been stayed pending negotiations between the parties.
[7/2, Settlement, LexisNexis] Five AGs and the City Solicitor of Baltimore, led by ****, agreed to a $5.8 million settlement with LexisNexis Risk Solutions and several of its affiliates over claims that the company knowingly failed to pay contractually agreed fees for the resale of vehicle accident reports it obtained from law enforcement agencies in several states. Under the terms of the settlement agreement, LexisNexis also agreed to discontinue its resale practice with law enforcement agencies in the states.
[7/2, Settlement Discussions, Insys Therapeutics] Five AGs agreed to facilitate settlement talks with an opioid manufacturer by dropping objections to a bid by Insys Therapeutics in bankruptcy court to put on hold their lawsuits alleging the drugmaker helped fuel the opioid epidemic.
[7/11, Settlement, Premera Blue Cross] A bipartisan coalition of 29 AGs, led by Washington’s Bob Ferguson, entered a settlement with Premera Blue Cross, the largest health insurance company in the Pacific Northwest. The agreement requires the company to pay $10 million total over its failure to secure sensitive consumer data. According to the AGs, Premera’s insufficient data security exposed the protected health information and personal information of more than 10.4 million consumers nationwide to a hacker. Among other things, the settlement requires Premera to:
- Ensure its data security program protects personal health information as required by law;
- Regularly assess and update its security measures;
- Provide data security reports, completed by a third-party security expert approved by the multistate coalition, to the Washington State Attorney General’s Office;
- Hire a chief information security officer, a separate position from the chief information officer. The information security officer must be experienced in data security and HIPAA compliance and will be responsible for implementing, maintaining and monitoring the company’s security program;
- Hold regular meetings between the chief information security officer and Premera’s executive management. The information security officer must meet with Premera’s CEO every two months and inform the CEO of any unauthorized intrusion into the Premera network within 48 hours of discovery.
[7/19, Settlement, American Electric Power] Eight AGs, led by Massachusetts’s Maura Healey, New Jersey’s Gurbir Grewal, and New York’s Tish James, entered into a settlement with American Electric Power. As part of the settlement, the company has agreed to significantly reduce air pollution from its coal-fired power plants, pay for new clean air projects, and retire a major coal-fired unit at the company’s power plant in Rockport, Indiana. The settlement, which was negotiated together with the U.S. Environmental Protection Agency and several environmental groups, revises a previous air pollution settlement with AEP reached in 2007 and modified in 2013. According to original complaints that led to that settlement, which were filed against AEP in 1999 and 2004, AEP violated the Clean Air Act by undertaking plant modifications without obtaining required permits or installing modern pollution controls in violation of the Act’s New Source Review (NSR) program.
[7/22, Settlement, Equifax] A bipartisan coalition of 50 AGs reached a $600 million settlement with Equifax regarding a massive 2017 data breach. This is the largest data breach enforcement action in U.S. history. An investigation by the AGs found that Equifax’s failure to maintain a reasonable security system enabled hackers to penetrate its systems, exposing the data of 56 percent of American adults—the largest-ever breach of consumer data. The settlement with Equifax includes a Consumer Restitution Fund of up to $425 million, a $175 million payment to the states, and extensive injunctive relief that also includes a significant financial commitment from Equifax. Equifax has also agreed to strengthen its security practices going forward, including:
- reorganizing its data security team;
- minimizing its collection of sensitive data and the use of consumers’ Social Security numbers;
- performing regular security monitoring, logging and testing;
- employing improved access control and account management tools;
- reorganizing and segmenting its network;
- and reorganizing its patch management team and employing new policies regarding the identification and deployment of critical security updates and patches.
[7/25, Settlement, Endo Pharmaceuticals] 18 AGs reached an agreement with Endo International plc and Endo Pharmaceuticals Inc. over allegedly anti-competitive, “pay-for-delay” conduct related to Endo’s sale of Lidoderm, a pain-relief drug that treats complications from shingles. The agreement is focused on injunctive relief and preventing future conduct. The injunction prohibits Endo from paying or incentivizing a generic drug maker to delay entry into the drug market or to delay researching, developing, manufacturing, marketing or selling any drug product. Endo will also pay the states a total of $2.3 million, which the states will use to enforce the injunctive terms and to stop other anti-competitive conduct in the pharmaceutical industry.
[7/26, (1) Settlement and (2) Ongoing Lawsuit, T-Mobile/Sprint] (1) Five AGs joined the U.S. Department of Justice in reaching a settlement with T-Mobile and Sprint regarding their proposed merger. The settlement requires a substantial divestiture package in order to enable a viable facilities-based competitor to enter the market. According to the federal and state participants, the settlement will facilitate the expeditious deployment of multiple high-quality 5G networks for the benefit of American consumers and entrepreneurs. The participating state Attorneys General offices represent Nebraska, Kansas, Ohio, Oklahoma, and South Dakota.
(2) At the same time, several AGs that are part of the 14-state coalition challenging the proposed merger between T-Mobile and Sprint expressed concern about the announced settlement supporting the proposed merger. The AGs filed their original complaint seeking to block the merger on June 11 in federal court in the Southern District of New York. Despite the approval of the deal by the federal government and five other AGs, this state antitrust challenge to the deal will continue.
Supreme Court Amicus Briefs
[7/5, Bostock v. Clayton County, 17-1618; Altitude Express v. Zarda, 17-1623; R.G. & G.R. Harris Funeral Homes v. EEOC, 18-107, SCOTUS] 22 Democratic AGs, led by Illinois’s Kwame Raoul and New York’s Tish James, filed an amicus brief in three related cases considered together by the U.S. Supreme Court: Altitude Express v. Zarda; Bostock v. Clayton County, Georgia; and R.G. & G.R. Harris Funeral Homes v. EEOC. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, involve employees who were terminated from their jobs after their employers learned of their sexual orientation. The third case, R.G. & G.R. Harris Funeral Homes v. EEOC, involves a transgender woman who was fired by her Wayne County-based employer – R.G. & G.R. Harris Funeral Homes – after she requested to dress in accordance with her gender identity. In their brief, the coalition argues that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people or based on sexual orientation.
[7/10, Mercer County Board of Education v. Deal, SCOTUS, 18-1487] 9 Republican AGs, led by Texas’s Ken Paxton, filed an amicus briefing urging reversal of a Fourth Circuit decision in favor of a student who brought an Establishment Clause challenge against a public school’s Bible studies program. According to the AGs, the court below’s decision that the student had standing to sue is “plainly wrong and upends bedrock Article III principles.”
[7/15, Guerin v. Fowler, SCOTUS, 18-1545] 7 AGs, led by Alaska’s Kevin Clarkson, filed an amicus brief urging the U.S. Supreme Court to reverse a Ninth Circuit decision holding that employees have a constitutionally-protected right to daily interest on their withdrawn or transferred pension contributions. According to the states, this decision erodes state sovereign immunity and conflicts with Supreme Court precedent.
[7/19, Hawai’i Wildlife Fund v. County of Maui, SCOTUS, 18-260] 14 Democratic AGs, led by Maryland’s Brian Frosh, submitted an amicus brief to the U.S. Supreme Court in Hawai’i Wildlife Fund v. County of Maui. In the brief, the coalition supports the environmental groups’ position that the indirect discharge of wastewater into the Pacific Ocean or any other waters of the United States, through groundwater or another similar conduit, is prohibited by the Clean Water Act. The state coalition urges the Supreme Court to uphold the Court of Appeals’ decision, which requires Clean Water Act permits for indirect discharges of pollutants into waters of the United States from a point source through groundwater or any other conduit.
[7/19, Trump v. Sierra Club, SCOTUS, 19A60] California Attorney General Xavier Becerra, along with New Mexico Attorney General Hector Balderas, filed an amicus brief in the U.S. Supreme Court supporting the Sierra Club and opposing the Trump Administration’s attempt to overturn an injunction issued by the district court pending appeal in Sierra Club v. Trump. The Trump Administration seeks to reverse a previous ruling by the U.S. District Court for the Northern District of California blocking the Administration from spending $2.5 billion of Department of Defense funding towards construction of a border wall. On July 3, 2019, the Ninth Circuit had denied the Trump Administration’s emergency motion for stay of the injunction. The States’ and Sierra Club’s challenges to the border wall are currently consolidated in the Ninth Circuit Court of Appeal. In this Supreme Court brief, the AGs assert that the states would suffer irreparable harm if the Trump Administration were allowed to proceed with the construction of the border wall in California and New Mexico.
[7/29, Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, SCOTUS, 18-1587] 16 Republican AGs, led by West Virginia’s Patrick Morrisey, filed an amicus brief urging the U.S. Supreme Court to overturn a ruling that halted construction of the Atlantic Coast Pipeline. The brief argues that the 4th U.S. Circuit Court of Appeals was inaccurate in ruling the U.S. Forest Service lacked authority to grant the Atlantic Coast Pipeline rights-of-way through forestland beneath the Appalachian National Scenic Trail. The AGs argue that decision could unnecessarily block pipeline construction and impede economic growth nationwide.
[7/31, Seila Law LLC v. Consumer Financial Protection Bureau, SCOTUS, 19-7] 12 Republican AGs, led by Texas’s Ken Paxton, filed a friend-of-the-court brief with the U.S. Supreme Court supporting a challenge to the constitutionality of the Consumer Financial Protection Bureau (CFPB). Last month, Seila Law requested Supreme Court review of the U.S. Court of Appeals for the 9th Circuit’s ruling that a federal law providing the CFPB’s single director can only be removed for cause is constitutional. The law firm challenged a lower court’s order enforcing a civil investigative demand by the CFPB as order invalid because the CFPB’s structure is unlawful. The AGs side with the law firm, arguing that the “CFPB is a rogue agency and its structure violates the Constitution’s separation of powers.”
Lower Court Amicus Briefs
[7/3, Mayor and City Council of Baltimore v. Azar, 19-1614, 4th Cir.] 14 Republican AGs, led by Ohio’s Dave Yost, filed an amicus brief in a case challenging the Trump Administration’s changes to Title X family planning funds. The brief supports the federal government’s changes, which seek to limit the use of public funds for abortion providers. According to the brief, “Title X… prohibits its funds from being ‘used in programs where abortion is a method of family planning.’ In the past, however, Health and Human Services (“HHS”) has failed to meaningfully enforce this prohibition. The new rules will change that: they will ensure that Title X funds are not used to fund or promote abortion, even indirectly.”
[7/9, Flores v. Barr, 2:85-cv-04544, C.D. Cal.] 20 Democratic AGs, led by California’s Xavier Becerra and Massachusetts’s Maura Healey, filed an amicus brief in a case involving the rights of children in civil immigration detention in the United States. In the brief filed with the U.S. District Court for the Central District of California, the coalition urges the court to grant immediate relief to remedy the imminent threat to the health and welfare of immigrant children detained by U.S. Customs and Border Protection (CBP). The AGs argue that under the Flores Settlement Agreement, children have the right to safe and sanitary conditions of detention and prompt release or placement at a state-licensed facility. However, according to the AGs, immigrant children have been held for weeks in inhumane conditions without access to necessities like soap, clean water, toothbrushes, showers, or a place to sleep.
[7/11, United States v. Safehouse, 2:19-cv-00519, E.D. Pa.] Eight Democratic AGs, led by the District of Columbia’s Karl Racine, filed an amicus brief in a case involving a Trump administration effort to stop Safehouse, a Pennsylvania nonprofit, from operating a “safe injection site” that aims to prevent opioid overdose deaths. The brief argues that the coalition supports the rights of states to enact public health policies that can prevent opioid overdoses, save lives, and treat those suffering from opioid use disorder.
[7/22, Duncan v. Becerra, 19-55376, 9th Cir.] 18 Democratic AGs, led by the District of Columbia’s Karl Racine, filed an amicus brief in a case defending California in a case challenging the state’s ban on large-capacity magazines that hold more than 10 rounds of ammunition. In the brief, the AGs argue that states have the right to enact reasonable firearm restrictions that protect public safety and reduce the prevalence and lethality of gun violence.
[7/22, Whole Women’s Health Alliance v. Hill, 19-2051, 7th Cir.] 16 AGs, led by Texas’s Ken Paxton, filed an amicus brief in a case involving Indiana’s appeal from a U.S. District Court decision requiring the State to allow Whole Woman’s Health, which also operates clinics in other states, to open an abortion clinic in South Bend without adhering to the licensing requirements that Indiana requires of abortion clinics.
[7/1, Letter to the Consumer Financial Protection Bureau] 25 Democratic AGs, led by New York’s Tish James, submitted a comment letter opposing any effort by the Consumer Financial Protection Bureau (CFPB) to roll back or limit its Overdraft Rule. The rule, which went into effect in 2010, permits banks to charge fees to consumers for overdraft services on ATM and one-time debit transactions only after consumers have been provided with important information about those services and fees in a model notice, and only after those consumers have made the affirmative choice to opt in to such services. The AGs argue that there is no basis to believe that the Overdraft Rule would place any additional economic burden or cost on small financial institutions, and that compliance has both been straightforward and used a model form designed for simplicity and cost-savings.
[7/9, Comments to the Department of Housing and Urban Development] 23 Democratic AGs, led by New York’s Letitia James and the District of Columbia’s Karl Racine, submitted a comment letter to the U.S. Department of Housing and Urban Development (HUD) opposing a new rule proposal that the AGs argue would deny housing assistance to mixed-status families that include any undocumented immigrants. According to the AGs, the new proposal would result in the eviction of thousands of families, including many children and lawful residents and citizens, who rely on housing assistance for their homes. If enacted, the Proposed Rule would harm the States, their residents, their local economies, and public health.
[7/12, Letter to Congress] 18 Democratic AGs, led by California’s Xavier Becerra and Massachusetts’s Maura Healey, sent a letter urging Congress to enact the Alan Reinstein Ban Asbestos Now Act of 2019” (Reinstein Bill), H.R. 1603. The Reinstein Bill would prohibit the manufacture, importation, processing, and distribution in commerce of asbestos in any of its forms and reinstate an asbestos ban that the U.S. Environmental Protection Agency (EPA) attempted to adopt 30 years ago. The letter calls for stronger protections against exposures to asbestos, and urges Congress to require the EPA to report to Congress on the risks of legacy asbestos currently present in buildings and found on aging tiles, adhesives, and piping. According to the AGs, EPA’s current plan to evaluate the risks posed by asbestos leaves gaping holes, failing to assess the risk presented by legacy asbestos, as well as imported raw asbestos. The letter also blasts the EPA’s Significant New Use Rule for opening the door to new uses of asbestos.
[7/15, Comments to the Federal Trade Commission] 18 Democratic AGs, led by the District of Columbia’s Karl Racine, submitted comments to the Federal Trade Commission (FTC) calling for greater consideration of labor issues in the enforcement of antitrust laws. In the letter, the coalition urges the FTC to use its authority to stop the use of non-compete, non-solicitation, and no-poach agreements, which, among other things, can prevent workers from seeking better pay and benefits by going to work for a competitor. The coalition describes how these kinds of anticompetitive practices allegedly hurt the wages of workers and harm consumers.
[7/15, Comments to the E.P.A.] Two Democratic AGs, New York’s Letitia James and New Jersey’s Grubir Grewal, together with the City of New York, filed comments on the Environmental Protection Agency’s (EPA) proposed denial of New York’s Section 126(b) petition under the Clean Air Act. In the petition, New York argued that emissions from approximately 360 sources in nine states upwind of New York significantly contribute interfered with maintenance of the 2008 and 2015 national ambient air quality standards (NAAQS) for ozone in parts of New York. In these comments, the states oppose EPA’s proposal to deny the Petition, arguing that EPA’s Proposed Denial does not comply with sections 126(b) and (c) and the Good Neighbor Provision for the 2008 and 2015 ozone NAAQS, and should be withdrawn and replaced with an action proposing to make the requested findings and impose the requested emission limits.
[7/16, Letter to the United States Trustee] Kentucky AG Andy Beshear and Virginia AG Mark Herring sent a joint letter to the U.S. Trustee asking for “the immediate payment” of all wages owed to employees of Blackjewel, a mining company that the AGs argue entered into a “haphazard bankruptcy.” The AGs argue that Blackjewel’s actions will have a significant impact on individual workers and their families, as well as the region as a whole, writing that “as a result of the bounced paychecks, many of the Virginia and Kentucky workers mistakenly overdrew their bank accounts. These workers and their families have been left without funds to meet mortgages, pay utility bills and purchase even basic living necessities. The negative impact only begins with the workers and their families. The failure to pay workers’ wages has rippled through the regional economies, shortchanging area merchants, service providers and other laborers.”
[7/17, Petition, Department of Transportation] Montana AG Tim Fox and North Dakota AG Wayne Stenehjem petitioned the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration seeking to overturn a new Washington state law that the states claim effectively prohibits crude oil produced in both states. The petition argues that Washington’s new law is preempted by the federal Hazardous Materials Transportation Act (HMTA). The HMTA authorized the U.S. Department of Transportation to establish a uniform set of national regulations for the safe transport of hazardous materials. Congress included specific language in the HMTA to prevent a patchwork of state and local regulations regarding the transportation of hazardous materials.
[7/18, Comments to the FDA] A bipartisan coalition of 37 AGs, led by District of Columbia’s Karl Racine and Oklahoma’s Mike Hunter, filed comments to the FDA urging federal cooperation with the states to protect consumers from false advertising and harms to their health from products containing cannabis or cannabis-derived compounds, including cannabidiol (CBD). In the comments, the AGs highlight the need for research into the risks and potential benefits of cannabinoid products to inform consumers and assist in state-level regulation. They also encourage the FDA to continue partnering with state consumer protection authorities as it considers guidelines for this emerging market.
[7/23, Comments to EPA and NHTSA] 11 Democratic AGs, led by New York’s Letitia James, submitted comments to the U.S. Environmental Protection Agency in response to the agency’s rollback of the Clean Car standards, which the AGs argue will significantly weaken pollution standards for automobiles nationwide. The AGs also claim that the EPA and NHSTA falsely asserted they had complied with state consultation requirements of a longstanding Executive Order requiring federal agencies proposing a rule that will preempt state law to consult with states early in the process of developing the proposal. The comments request that EPA/NHSTA withdraw the rollback rule and comply with the Executive Order’s consultation requirement before issuing another rule and that EPA/NHSTA correct the public record to reflect that they, in fact, did not comply with the Executive Order.
[7/25, Comments to EPA] 14 AGs and the Pennsylvania Department of Environmental Protection, led by California’s Xavier Becerra, filed comments denouncing the U.S. Environmental Protection Agency’s guidance that attempts to roll back state involvement in the permitting of federal projects under Section 401 of the Clean Water Act. According to the AGs, section 401 and other provisions of the Clean Water Act preserve states’ authority to protect the quality of the waters within their borders. In the comments, the multistate coalition argues that EPA’s guidance is improper. Specifically, the coalition objects to EPA’s disregard for the Clean Water Act, which provides states with a reasonable timeframe to complete the Section 401 water quality certification process. Furthermore, the group opposes EPA’s attempt to restrict the scope of states’ review of projects under Section 401 and to impose federal oversight over the states’ Section 401 decisions. The states request that EPA withdraw or revise the guidance to rectify the issues identified in the comment letter.
[7/30, Letter to Congress] 22 Democratic AGs, led by New York’s Letitia James, filed a letter in support of Congress’ efforts to pass legislation addressing the dangers of per- and polyfluoroalkyl substances (PFAS). In the letter, the attorneys general provide recommendations to address PFAS contamination and urge that any new law not impair states’ protection of their own communities. PFAS are a group of thousands of chemicals, including perfluorooctnoic acid (PFOA) and perfluorooctane sulfonate (PFOS), widely used on consumer products including nonstick cookware, water- and wrinkle-resistant clothing, and food packaging, as well as in firefighting foam. According to the letter, PFAS chemicals have been shown to cause adverse health effects including developmental defects, kidney cancer, liver damage, and impacts on the thyroid and immune system.
[7/9, Washington State] AG Bob Ferguson filed a lawsuit against the U.S. Navy over the Navy’s expansion of its Growler airfield operations on Whidbey Island. In March, the Navy authorized an expansion of its Growler program, increasing Growler take-offs and landings to nearly 100,000 per year for the next 30 years. Growlers are aircraft that fly low in order to jam enemy communications. According to the AG, the aircraft’s training regimen involves frequent, loud take-offs and landings. The office asserts that the Navy’s environmental review process for the expansion unlawfully failed to measure the impacts to public health and wildlife in communities on and around Whidbey Island.
[7/18, North Dakota] AG Wayne Stenehjem filed a lawsuit in federal court seeking to hold the federal government accountable for $38 million in costs expended by North Dakota related to allegedly unlawful conduct that occurred during the protests over the construction of the Dakota Access Pipeline (DAPL). North Dakota’s claim is brought under the Federal Tort Claims Act, and asserts that the state incurred $38 million in law enforcement, emergency response, and other costs as a result of the US Army Corps of Engineers’ failure to enforce the law, including its own regulations, and to protect public safety, health and the environment during protests over the DAPL’s construction.
Opioid-Related Developments
[7/31, Arizona, Sackler Family] Attorney General Mark Brnovich also filed an action in Pima County Superior Court seeking to add the Sacklers to his office’s existing lawsuit against Purdue. The ongoing lawsuit filed in September 2018 alleges Purdue, controlled by the Sacklers, engaged in deceptive and misleading marketing to push opioids, in violation of a 2007 judgment against Purdue obtained by the Arizona Attorney General’s Office for violating the state’s Consumer Fraud Act.
Other Lawsuits/Settlements/Investigations
[7/29, California, Four Pharmaceutical Companies] California Attorney General Xavier Becerra today announced four settlement agreements against pharmaceutical companies for entering into collusive “pay-for-delay agreements” that illegally delay affordable prescription drugs from entering the market. Together, the settlements will result in these pharmaceutical companies making a nearly $70 million payment to the state. These settlements include the largest pay-for-delay settlement received by any state and are also the only ones to secure injunctive relief for a state against future pay-for-delay agreements. Pay-for-delay agreements allow a brand name drug company to continue its monopoly of a branded drug and to charge consumers higher prices. The first settlement with Teva addresses anticompetitive pay-for-delay agreements that delayed a generic narcolepsy drug, Provigil, from entering the market for almost six years. The three other settlements with Teva, Endo Pharmaceuticals, and Teikoku address similar practices that prevented a generic version of the drug Lidoderm, a shingles medication, from entering the market for almost two years. Pay-for-delay agreements are costly to consumers and the healthcare market, causing consumers to pay as much as 90% more for drugs shielded from competition.
AG Powers and Duties
[7/15, Minnesota] Minnesota AG Keith Ellison announced that his office has formed a new Wage Theft Unit dedicated to investigating and enforcing cases of wage theft. According to AG Ellison, the unit “will protect and advance the economic rights of all Minnesota residents, especially those from communities and backgrounds that are most vulnerable to theft and abuse, who have traditionally lacked access to the courts and attorneys. The Unit will investigate and litigate cases involving patterns and practices affecting economic rights and other persistent issues that cause Minnesotan workers not to receive the wages they are entitled to. The Unit will also monitor emerging labor and employment issues and dialogue with other government entities, community groups, and the business community to increase awareness of economic rights issues and to identify bad actors violating those rights.”
[7/25, New York] New York AG Tish James applauded Governor Andrew Cuomo for taking action and signing the Stop Hacks and Improve Electronic Data Security (SHIELD) Act — a legislative priority of the Office of the Attorney General during the 2019 session — into law. This consumer privacy policy updates New York’s laws governing notification requirements, consumer data protection obligations, and broadens the Attorney General’s oversight regarding data breaches impacting New Yorkers.
Other Federal/State/Local Conflicts
[7/19, Texas] Texas AG Ken Paxton intervened in a lawsuit filed by a dozen business organizations against the city of San Antonio to strike down the city’s sick leave ordinance. The ordinance was scheduled to take effect August 1. According to AG Paxton, the minimum amount of compensation established for workers – including the minimum amount of paid time off – is a decision entrusted by the Texas Constitution solely to the state Legislature.