Can Democratic Attorneys General Save the Environment from Trump 2.0? (Part 1)

Overview: The role of state Attorneys General

When the dust of history finally settles on the Trump administration, it will be shown as one of the most litigated administrations in US history. Among the leaders of that litigation will be state attorneys general.

Over the next four years, their efforts will play a critical role in preventing the Trump administration from rolling back US energy and environmental policy to a time before the Nixon administration. In 2026, 30 state AG offices will be up for election. (See Figure 1)

If one were given a single wish in the upcoming 2026 midterm elections, one would be wise to ask for the election of an AG candidate who understands and supports efforts to combat climate change.

Rather than in the halls of Congress, the fate of federal energy and environmental policy will be decided in the halls of justice.

The Trump administration – whether in consort with congressional Republicans or acting alone – will not stop its assault on the Biden and Obama climate legacies – unless ordered to by the courts. And, even then, it's not at all sure that the administration will comply before the damage is done.

It is difficult to give any credence to the notion that the Democrats can take back both the House and Senate next November, given today's political environment. Moreover –

The only way more Democratic senators and representatives can stop the president from doing much of what he has set out to do by executive fiat is to have veto-proof majorities in the House and Senate.

The power(s) of state AGs

No one understands the power of state AGs better than Trump. Why else would the Department of Justice seek to preempt a state's right to sue oil companies for the damages it knowingly causes to the environment through the emission of greenhouse gases on much the same grounds that state AGs – Republican and Democrat – were successful in suing cigarette companies in the 1990s?

Why else, too, would the president attack white shoe law firms that often take on these sorts of challenges to congressional or presidential overreach on a pro bono basis? State attorneys general are much harder to intimidate, given that their bottom line is the health and welfare of their state's citizens, not annual revenues.

The use of litigation by AGs "as a policymaking tool gained prominence in the mid-1990s, when over 40 states—Republican and Democrat—initiated lawsuits against the tobacco industry. It ultimately resulted in a national settlement that included strict federal regulations on tobacco labeling and marketing, as well as financial relief for states." Since that time, AGs have successfully "changed the rules of the game for banks, brokerage firms, and pharmaceutical companies, along with countless other industries."

"If you think a congressman is more important than [an] attorney general, you're wrong. The only hope you have of getting something done [as a member of the Congress] is if you stay four or five terms."

· James Tierney, former Maine AG

State AGs are part of the executive branch and popularly elected in forty-three states, while the governors of Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming appoint their state's attorney general. Maine's legislature selects its state attorney general. In Tennessee, it's up to the state supreme court to choose the AG.

According to the National Association of Attorneys General (NAAG): "The structure of the office and the duties of the attorney general vary ... and are defined in state constitutions, statutes, and court decisions in different degrees of detail and emphasis, although the individual functions and priorities of each AG's office vary by jurisdiction, there are a set of core tasks undertaken by the chief legal advisors in every state.

State AGs act as the public's advocates in child support enforcement, labor relations, consumer protections, antitrust, and utility regulation. They propose legislation and enforce federal and state environmental laws and regulations.

The independence of state AGs

Although part of the executive branch, AGs can be independent actors. In April, Pennsylvania was joined by 22 other states and the District of Columbia in challenging the Trump administration's abrupt cancellation of more than a half billion dollars in public health grants for Pennsylvanians for various services, e.g., immunizations and eldercare. Governor Shapiro appears on the plaintiff's list on behalf of the Commonwealth rather than Pennsylvania's AG, David Sunday, who is a Republican wanting to take a "less aggressive" approach toward President Trump" than his Democratic governor.

"Disputes between governors and attorneys general are fairly common and usually occur along partisan lines." In 2017, then Kentucky Attorney General (D) sued his Republican governor over an executive order on the structure and membership of three existing state educational boards.

The same year, Maine's Republican governor, Paul LePage, sued the state's Democratic Attorney General, Janet Mills. The issue in this case was Mills "allegedly obstructing his ability to participate in a lawsuit supporting President Donald Trump's (R) March 6, 2017 executive order impacting refugee admissions and immigrant and nonimmigrant travel.

"There's an old joke about the National Association of Attorneys General—their registered name should be the National Association of Aspiring Governors."

· Larry J Sabato, The Center for Politics

Often, the AG's office is a stepping stone to bigger things. Jeff Sessions (R) became a US senator from Alabama and was appointed as Trump's first Attorney General. Scott Pruitt went from joining with and leading legal assaults on environmental regulations to becoming Trump's first EPA administrator—responsible for drafting and defending federal environmental policies.

State AGs have become president, vice president, and chief justice of the Supreme Court. With some regularity, state AGs move from the courtroom to the governor's mansion. Supporting AG candidates is an investment that keeps paying off. They take their environmental positions with them as they move up the political line.

The most litigated administration in US history

Even before President Trump took the oath of office for the second time, Democratic state attorneys general were standing at the courthouse door with dozens of petitions "asking judges to overturn executive actions. The dozens have since turned into a deluge on matters ranging from immigration, the environment, tariffs, guns, and the power to re-write the US Constitution.

The rise in AG activism is part and parcel of these profoundly partisan times. As much a consequence as a contributing factor to today's culture wars, their involvement is intended as a foil to presidential policymaking through executive orders.

Following the election of George W. Bush, a partisan pattern of multistate lawsuits challenging the policy actions of opposition presidents in the courts began to emerge. Over his two terms, the Bush administration was sued 76 times. Of those, 38 were led by Democratic AGs. The Obama administration encountered 80 multistate legal challenges -- 58 were Republican-led.

In Trump's first four years, the number of coordinated multistate suits by Democratic AGs burgeoned to160. The upward trend continued through President Biden's term when Republican AGs sought intervention by the courts on 60 occasions. The number of times Trump and his second administration is challenged in court is likely to records—given the depth and breadth of his promised deconstruction of the federal establishment.

State AGs on both sides of the aisle have enviable success rates when suing opposition presidents. The overall win rates were 75.8 percent during the Biden administration, 83 percent in contests between Democratic AGs and the Trump administration, and 63.5 percent during Obama's two terms.

As of May 21, 2025, the Trump administration has been sued nearly 250 times since taking office. The number grows daily, and so do the administration's losses in court. During its first term, many of the administration's losses in court were based on its failure to follow the Administrative Procedures Act, which controls much of how the executive branch goes about its business.

Hundreds of lawsuits – many brought by Democratic AGs – have been filed in the first four months of Trump 2.0. Before it's over, thousands more will be. (There are excellent trackers that follow all the lawsuits and are regularly updated. These include the New York Times,Lawfare, and AP News.)

"Trump has enacted his agenda at breakneck speed as part of an intentional plan to knock his opponents off balance and dilute their response."

In the final analysis, there are no more important elections in 2026 from an environmental perspective than the 30 state AGs running for office.

In Part 2 of the Can Democratic Attorneys General Save the Environment from Trump 2.0?, I’ll be going into greater detail on the “flood the zone” strategy the administration is following and its primary environmental and clean energy policy targets.

A note to readers: For more a more detailed discussion about the role of AGs over the past two decades see my article “AGs Getting Aggressive” published by the Environmental Law Institute’s Environmental Forum. (The above link allows readers to view without the paywall.)

Lead image credit: US Supreme Court photo courtesty of Tim Mossholder on Unsplash