State Environmental Lawsuits Reveal the Growing Power—and Partisanship—of State Attorneys General

By Sarah J. Morath1Professor of Law, Associate Dean for International Affairs, Wake Forest University School of Law. Thank you to the online editors of the N.Y.U. Journal of Legislation and Public Policy and my research assistant, Landry Moye, for her excellent research assistance. Professor Morath is the author of Our Plastic Problem and How to Solve It (Cambridge University Press 2022).

October 21, 2024

Over the past twenty years, state attorneys general have evolved into significant policymakers; their influence over national policy is now being challenged.

In May 2024, nineteen Republican attorneys general (AGs) petitioned the U.S. Supreme Court to halt litigation against fossil fuel companies in state courts. At the center of this dispute is a lawsuit filed by the city and county of Honolulu against Shell, Sunoco, Exxon, and other oil and gas companies in Hawaii state court. In October 2023, the Hawaii Supreme Court in City and County of Honolulu v. Sunoco LP denied the defendants’ motion to dismiss, holding that because the city and county had sued the fossil fuel companies using state theories of public nuisance and consumer deception, the defendants were subject to jurisdiction in Hawaii. In the May petition to the Supreme Court, the fossil fuel companies and Republican attorneys general argued that state lawsuits like City and County of Honolulu—brought by Democratic attorneys general—are federal law claims disguised as state torts, and therefore should be heard in federal court, where climate change litigation has struggled to gain traction.

The city and county of Honolulu assert that the case is not about regulating greenhouse gases, and therefore does not involve federal law. Their complaint asserts state tort claims; specifically, they allege that the defendants violated state law by engaging in deceptive commercial practices and deliberately misrepresenting the climate change impacts of fossil fuel products to consumers. Prosecuting public nuisance and deceptive trade practices claims falls squarely within a state attorney general’s responsibility.

State AGs in California, Vermont, Connecticut, Massachusetts, and Minnesota have also sued oil and gas companies using their state consumer protection laws. In February 2024, NY AG Letitia James targeted a different industry, suing meat producer giant JBS for misleading consumers with its “Net Zero 2040” campaign.

State AGs as de facto policymakers

State attorneys general have become important drivers of national policy on issues like smoking, opioids, social media, and now climate change. The attorney general, the second most powerful government official after the governor, serves as the chief lawyer for their state. While their specific duties and responsibilities can vary, AGs, most of whom are elected, protect the public interest of the state and its citizens. In short, they act as parens patriae, using state laws such as nuisance and consumer protection to remedy harm to their citizens.

State AGs have broad authority to investigate, subpoena, and sue businesses that have duped, harmed, or injured a state’s residents. Today, state AGs are well-resourced and well-connected. When they work in concert, state AGs are potent adversaries to multinational corporations such as the tobacco industry, pharmaceutical companies, social media giants, fossil fuel companies, and the manufacturers of PFAS, or “forever chemicals.”

Tobacco, opioids, and more

The tobacco litigation of the 1990s has been called a “coming-of-age event” for state attorneys general. Fifty-two state AGs took bipartisan action, suing tobacco companies over advertising that targeted children and hid the addictive nature and harmful health impact of cigarettes. The litigation was settled in 1998 for $206 billion. Two decades later, fourteen states sued opioid manufacturers and distributors for their role in the opioid addiction crisis and settled in 2021 for $26 billion.

More recently, state AGs have taken a bipartisan interest in suing social media giants and PFAS manufacturers.

Scholars note that the litigation by state AGs against industries like tobacco, pharmaceuticals, social media, and chemical manufacturers reflects what can happen when federal action is absent. State AGs step in and effectively act as “gap fillers” to address problems that impact their citizens. Several examples exist in the environmental context, particularly around harms that arise from fossil fuel and petrochemical companies, such as plastic pollution and climate change, where the federal government has been slow to enact legislation at the federal level.

AG action on plastics

Take, for example, plastic pollution, my area of expertise. Plastic pollution is a growing problem with no solution in sight. The Break Free from Plastic Pollution Act, a federal law that would ban certain single-use plastics, enact producer responsibility, and pause new plastic production, has been introduced in Congress, twice, but is unlikely to be signed into law. Litigation using existing federal laws like the Clean Water Act has resulted in one-off wins. Still, these successes have not shifted behavior or slowed plastic production, which is expected to double by 2040. Enter the state AGs and their use of state consumer protection and nuisance laws.

Minnesota

In June 2023, the Attorney General for Minnesota, Keith Ellison, filed a lawsuit in state court against Reynolds Consumer Products, the manufacturer of Hefty garbage bags, and Walmart, the retailer that sells the bags. The complaint alleges that the defendant’s garbage bags were marketed to mislead consumers into believing they were recyclable in violation of a series of Minnesota consumer protection acts, including the Prevention of Consumer Fraud Act, the Deceptive Trade Practice Act, the False Statement in Advertising Act, and Deceptive Environmental Marketing Claims. Walmart and Reynolds settled with Minnesota in August 2024 for $3 million.

Reynolds is facing a similar lawsuit from the Connecticut AG and class-action lawsuits from private parties.

California

In April 2022, California Attorney General Rob Bonta launched an investigation into fossil fuel and petrochemical companies for what it calls a decades-long “plastics deception campaign.” The investigation focuses on the companies’ role in perpetuating myths around recycling as a solution to plastic pollution. Bonta stated in April 2024 that he expected the investigation to conclude in the summer of 2024, and he would decide whether to sue if there were a violation of California law. Plastic groups, however, are not going down without a fight. In May 2024, the American Chemical Society (ACS) and Plastic Industry Association (PIA) filed a separate lawsuit in federal court in Washington, D.C., challenging some of Bonta’s subpoenas. ACS and PIA withheld documents containing confidential industry data and communications related to public policy and advocacy matters, claiming that California is infringing on their First Amendment rights. On September 11, 2024, the U.S. District Court for the District of Columbia denied the industries’ request to enjoin the California AG from enforcing the investigative subpoenas. And on September 23, AG Bonta sued ExxonMobil in state court for deceiving the public about the ability of recycling to solve the plastic pollution problem.

New York

While the activity in California targets oil and petrochemical industries for deceptive trade practices, a lawsuit in New York also includes a public nuisance claim. In November 2023, New York Attorney General Letitia James sued PepsiCo in New York State. AG James’s complaint focuses on the Buffalo River, where plastic manufactured, sold, and distributed by PepsiCo is the largest contributor to plastic waste. This waste contaminates public drinking water, threatens public health, harms freshwater species, and endangers the ecosystem. While the complaint alleges deceptive trade practices for failure to warn consumers of known risks associated with single-use plastic, it also alleges a novel claim for plastic litigation: public nuisance. AG James alleges that PepsiCo has created a public nuisance through its acts and omissions. The plastic pollution from PepsiCo products has interfered with “the public’s use and enjoyment of the Buffalo River and its environs, and adversely affects the aesthetic value of the river and its shoreline.” Litigation on this matter is ongoing.

The United States Supreme Court Steps In

In early June 2024, the United States Supreme Court asked the Solicitor General, Elizabeth Prelogar, to weigh in on City and County of Honolulu v. Sunoco LP. The first time Solicitor General  Prelogar addressed state-law climate claims in 2023, she convinced the Supreme Court not to take up the matter by arguing that suits brought in state court alleging only state-law claims belong in state court.2Scholars are divided on whether state law claims related to climate change are preempted. Compare https://news.bloomberglaw.com/us-law-week/supreme-court-should-prevent-flood-of-state-climate-change-torts with https://reason.com/volokh/2024/05/03/are-state-law-climate-change-tort-suits-preempted-by-federal-law

While the fossil fuel industry and the nineteen state AGs who petitioned the U.S. Supreme Court argue that state AGs have overstepped their authority by prosecuting cases that have extraterritorial or national effects, AG action is the natural consequence of the federal government’s failure to attend to problems like climate change and plastic pollution.

Sarah J. Morath, Professor of Law, Associate Dean for International Affairs, Wake Forest University School of Law.

Suggested Citation: Sarah J. Morath, State Environmental Lawsuits Reveal the Growing Power—and Partisanship—of State Attorneys General, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).