Ken Paxton may be impeached, but his anti-environment legacy will live on

It was the winter of 2015 and Ken Paxton, the newly elected lawyer normal of Texas, stood earlier than a lunchtime crowd of conservatives on the Texas Public Coverage Basis’s downtown headquarters in Austin. He was giving a gap keynote on “The Clear Energy Plan, the Warfare on Coal, and Why I Sued the EPA” alongside coal baron Robert Murray.

Paxton was in acquainted firm. The Basis, a right-wing assume tank, had organized an power and local weather coverage summit and stacked it with a who’s who of local weather deniers. Over the following two days, attendees would sit in on discussions that touted carbon dioxide because the “fuel of life” and condemned the federal authorities’s efforts to “shackle power.”

Because the sounds of clinking cutlery stuffed the room, Paxton broadcast what would turn into the defining campaign of his tenure: repeatedly suing the federal authorities — specifically over environmental regulation.

“Governor [Greg] Abbott instructed me as he swore me in, and I put my hand down, he stated, ‘You can be the busiest lawyer normal in Texas historical past,’” Paxton recalled. “We’ve truly sued the Obama administration now six instances,” he added to applause. 

Paxton’s political rise was swift; he went from state consultant to state senator to lawyer normal in simply three years. Brasher and extra brazen than even his arch-conservative predecessor, Abbott, Paxton would turn into a outstanding ally of President Trump.

He shared not solely the previous president’s anti-environmental and anti-immigration views, but in addition his Teflon-like high quality for deflecting his personal authorized troubles. Lower than six months into his first time period as lawyer normal, Paxton was indicted for securities fraud for allegedly persuading buyers to purchase inventory in a tech agency with out disclosing that he was being paid by the corporate to advertise its providers. He managed to flee trial for the following eight years, all of the whereas sustaining the assist of the Texas Republican occasion and the state’s voters, handily successful re-election in 2018 and 2022. 

Paxton shakes Trump's handTexas Legal professional Basic Ken Paxton greets former U.S. President Donald Trump on the ‘Save America’ rally on October 22, 2022, in Robstown, Texas. Brandon Bell/Getty Photographs

Like Trump, nonetheless, Paxton’s brazenness is now catching as much as him. The lawyer normal’s undoing started in 2020, when senior officers in his workplace alleged that he had used his elected submit to serve the pursuits of actual property investor Nate Paul, a pal and marketing campaign donor. Based on the staffers, Paxton directed his workplace to analyze Paul’s rivals; in return, Paul allegedly helped him rework his Austin dwelling and employed a girl with whom Paxton was having an affair. When Paxton fired the staff who spoke out, they filed a whistleblower lawsuit for retaliation. That go well with was settled earlier this yr for $3.3 million. (Paxton has denied all allegations by the whistleblowers.) 

Texas taxpayers had been on the hook for that payout — a undeniable fact that didn’t sit properly even with the lawmakers who had beforehand turned a blind eye to Paxton’s indiscretions. By then the federal Justice Division had additionally begun investigating the whistleblowers’ claims, and his personal occasion lastly turned on him. In Could, legislators within the Texas Home voted to question Paxton by a depend of 121 to 23, a shocking rebuke from the Republican-led chamber. His trial within the Texas Senate begins on Tuesday.

Nonetheless, Paxton fulfilled Abbott’s prediction that he could be “the busiest lawyer normal in state historical past.” Throughout his eight years in workplace, Paxton participated in multistate lawsuits towards the federal authorities 45 instances, a charge thrice that of Abbott. Practically half of these instances involved power or environmental points, they usually fought to cease guidelines that will have lowered carbon dioxide emissions from energy vegetation, elevated protections for rivers and streams, lower air pollution from vehicles and vehicles, and utilized different environmental protections.

A bubble chart showing Ken Paxton's multistate cases by policy area. The largest category is Environment, with 15 cases.

Grist / Clayton Aldern

On the identical time, Paxton centralized state authority over environmental litigation within the lawyer normal. His workplace backed laws requiring neighborhood teams and counties to offer the lawyer normal first dibs on environmental lawsuits. The ensuing regulation has hamstrung environmental teams and county attorneys in Houston and Port Arthur from suing main polluters. Native officers and environmental advocates say that Paxton’s workplace has in flip let firms off with only a slap on the wrist.

Consequently, Paxton’s tenure has been “a catastrophe for Texas’ air, water, and local weather,” stated Luke Metzger, government director of the nonprofit Setting Texas. (Paxton’s workplace didn’t reply to a request for remark.)

State attorneys normal suing the federal authorities is just not a brand new phenomenon, however Paxton has been one of the crucial adept at utilizing lawsuits to affect federal coverage. After Democratic attorneys normal first discovered success suing the Bush administration in makes an attempt to pressure it to handle climate change, Republicans elevated the recognition of the tactic by batting again federal guidelines by lawsuits towards the following Obama administration. Texas was on the forefront of this sort of litigation. 

As a state with vital fossil gasoline sources, the nation’s largest petrochemical hub, and a focus of conservative judges who could also be sympathetic to fossil gasoline and enterprise considerations, Texas grew to become a super venue to file instances difficult environmental regulation. Throughout Abbott’s time as lawyer normal, Texas joined in 15 multistate lawsuits and filed 28 different impartial lawsuits towards the federal authorities. Abbott famously described his job as such: “I am going into the workplace, I sue the federal authorities, after which I am going dwelling.”

Although Abbott misplaced greater than half of the multistate instances, Paxton has had far more success: Texas has received greater than 40 % of the 45 multistate instances it has filed since Paxton took workplace in 2015. 

“Paxton has been very aggressive, far more so than Abbott, in going to the courts which can be essentially the most favorable,” stated Paul Nolette, a political science professor who research attorneys normal at Marquette College. Nolette calls this “platform buying” — cherry-picking venues with sympathetic judges. “The truth that platform buying has gotten a lot extra outstanding is a giant cause why they’ve seen extra success — undoubtedly at the very least on the district court docket stage, if not on enchantment,” Nolette added.

A table showing Ken Paxton and Greg Abbott's multistate case counts, by status. Paxton has brought 17 successful multistate cases (with 15 more pending), while Abbott brought 2 successful cases.Grist / Clayton Aldern

In multistate instances, states can file go well with in any federal court docket in any one of many states concerned within the litigation. Consequently, states have large latitude in selecting the venue the place their authorized arguments will likely be heard. More and more, Paxton’s workplace has chosen to file in a single Texas court docket: the Amarillo division in North Texas. 

Based on a current Justice Division temporary, Paxton has sued the Biden administration 28 instances in numerous Texas courts. Of these, 18 had been filed in Amarillo, a division with a single choose. The problem got here to a head in a current lawsuit filed by Texas and different states over new Labor Division guidelines that give retirement plan sponsors extra leeway to think about environmental, social, and governance components when contemplating funding choices. Paxton and different attorneys normal filed go well with towards the federal authorities within the Amarillo division, and the case landed earlier than Choose Matthew J. Kacsmaryk, a Trump appointee. 

In February, the Justice Division filed a movement to have the case reassigned to a different choose. “Plaintiffs’ and different litigants’ ongoing tactic of submitting lots of their lawsuits towards the federal authorities in single-judge divisions, or divisions the place they’re in any other case nearly all the time assured to obtain a selected choose, undermines public confidence within the administration of justice,” attorneys for the Justice Division famous in a quick. 

Nolette, the political science professor, additionally attributed Paxton’s success to the truth that workers within the lawyer normal’s workplace are more and more concerned in federal guidelines earlier on. Employees attorneys typically file  feedback in the course of the rulemaking course of, which provides them an extended lead time to develop arguments that may ultimately be utilized in lawsuits which can be filed after the principles are finalized. Whereas it beforehand took months for attorneys normal to file go well with after a rule received on the books, now lawsuits are filed inside days of a rule being finalized. Within the final yr, Paxton’s workplace has despatched letters to the EPA opposing proposed new clear air requirements and up to date environmental guidelines for the oil and fuel business. 

Nolette attributes Paxton’s success to aggressive ways like these. “He’s been savvy in that approach, at the very least by way of having the ability to take advantage of out of the alternatives which can be in entrance of him,” he stated.

Paxton’s savviness additionally prolonged to environmental lawsuits on the native stage. The lawyer normal is the highest cop within the state. Paxton used this function of the hierarchy to police the actions of county attorneys, who can deliver civil environmental instances towards polluters. In 2017, Paxton’s workplace pushed for laws that required native entities (together with neighborhood teams submitting citizen fits) to offer a 90-day discover to the lawyer normal’s workplace earlier than submitting go well with. The lawyer normal might then intervene and take over the case. 

The invoice was handed after it was revealed in 2015 that Volkswagen had put in defeat gadgets in 11 million autos offered worldwide to cheat emissions assessments. Attorneys internationally rushed to file go well with towards the German carmaker for defrauding the general public. In Texas, then-Harris County Legal professional Vince Ryan was among the many first to sue Volkswagen. For years, Harris County had been in “non-attainment” of the EPA’s smog requirements. Ryan argued that by putting in defeat gadgets that masked the true stage of nitrogen oxide emitted by its vehicles, Volkswagen had prevented the county, which incorporates town of Houston, from assembly the EPA’s air high quality requirements.

Paxton, nonetheless, wished the matter solely in his arms. He requested that Ryan drop Harris County’s lawsuit and let the state “obtain a complete and simply statewide decision of this matter on behalf of Texas.” When Ryan refused, Paxton turned to state lawmakers, who handed the regulation requiring native entities to offer his workplace 90 days’ discover earlier than submitting environmental lawsuits. Paxton might then decide if he wished to take over the case, thereby barring native teams from bringing the go well with themselves. 

“The invoice will present consistency in interpretation of state regulation and regulation,” Craig Pritzlaff, an lawyer within the environmental safety division of the lawyer normal’s workplace, instructed lawmakers at a legislative listening to in 2017.

However native attorneys’ workplaces and environmental teams noticed the legislative push as one more effort by the state to restrict penalties for polluters. In 2015, the state had handed a regulation that capped the penalties that counties might acquire from environmental violators at about $2.2 million. The regulation was a direct response to Harris County suing three firms for permitting dioxins to leak into the San Jacinto River and Galveston Bay for many years. Two of the businesses ultimately settled for $29.2 million, one of many largest civil penalties for stable waste violations within the state. 

The 2015 and 2017 legal guidelines limiting when native entities might deliver environmental lawsuits and the way a lot they might acquire in penalties typified the battle between native metropolis governments that tended to lean Democratic and state leaders, who had been Republican. These legal guidelines additionally got here on the heels of the state legislature overturning town of Denton’s ban on fracking. 

The 2017 regulation “primarily ended the interval of aggressive civil litigation of the county,” stated Terence O’Rourke, a former particular assistant in Ryan’s workplace. One other 2019 regulation requires county attorneys to hunt permission from the lawyer normal’s workplace when hiring exterior counsel. Since counties have restricted workers and sources and will not have the experience to deliver specialised instances, they typically rent attorneys in personal apply on contingency charge contracts to symbolize their pursuits. After these legal guidelines had been handed, O’Rourke stated the county was solely in a position to deliver instances by backdoor political maneuvering. 

For instance, when Harris County wished to file go well with towards the e-cigarette producer Juul, it retained a bunch of attorneys with Republican connections, O’Rourke stated. One lawyer was a former Texas Supreme Court docket justice; the political connections helped the workplace get the approval to rent exterior counsel and file the case.

“We received within the door on that one,” O’Rourke recalled. “That’s actuality. How do you make it by and never have them taken over earlier than they even start?”

Grist obtained an inventory of 90-day notices despatched to the lawyer normal by a public data request. For the reason that regulation handed in 2017, Paxton’s workplace has obtained 100 such notices; 62 had been filed by Harris County. Of the 62 instances, the lawyer normal’s workplace has intervened in at the very least 9. Whereas the variety of instances the workplace has intervened stays low, Paxton’s workplace seems to take over instances after they contain bigger company polluters. The overwhelming majority of instances wherein Harris County has been allowed to take the lead contain small mom-and-pop operations, mid-size chemical firms, and waste disposal firms. 

“Each time we get a large-scale emissions occasion, they take the case,” stated Harris County lawyer Christian Menefee. “That’s simply type of a daily incidence, and these instances typically find yourself getting settled for pennies on the greenback.”

As an illustration, when a waste processing facility had a hearth in 2021, the state took over the case from Harris County and settled for a $11,250 administrative penalty — 3.75 % of the $300,000 statutory most. In one other case involving a hearth at a bulk liquid storage facility the identical yr, the state environmental company settled for about 1 % of the greater than $1 million most statutory penalty. 

“It’s very clear that there’s a concerted effort within the [attorney general’s] workplace with the [state environmental agency] to take these instances from native governments after which to accept 3 or 4 or 5 % of the statutory most,” stated Menefee, “as an alternative of actually in search of the quantity that’s going to be consultant of the hurt that was executed to those communities, and that’s going to disincentivize firms from permitting these items to proceed to occur.”

Not less than three instances have additionally stalled within the courts. After receiving a lot publicity for suing polluters accountable for huge fires and air air pollution in 2019 and early 2020, lawsuits towards Intercontinental Terminals Firm, Valero, and TPC Group have languished within the courts. Grist’s overview of the filings reveals that few preliminary authorized paperwork have been submitted to the courts over the past three years. The lawsuit towards Valero was initially deliberate by environmental teams together with the Sierra Membership, Setting Texas, and the Port Arthur Group Motion Community. The Sierra Membership has had success submitting comparable lawsuits towards polluters. In 2017, the group’s lawsuit towards one other Exxon facility resulted in a $20 million penalty.

“4 years is a very long time to go on with litigation like this with little to point out for it,” stated Setting Texas’ Metzger. “We’re very involved that the lawyer normal’s workplace isn’t aggressively litigating these instances.” If the environmental teams had been allowed to proceed with the instances, he argued, the lawsuits would’ve gone to trial and obtained verdicts by now.

Menefee stated that his workplace has used artistic authorized methods to get across the lawyer normal’s workplace, together with citing federal environmental legal guidelines and suing in federal court docket. When the Texas Division of Transportation deliberate an enlargement of a serious freeway that will hurt communities of shade, Menefee stated his workplace selected to file a lawsuit towards the company underneath the Nationwide Environmental Coverage Act in federal district court docket.

Equally, when a most cancers cluster was found in Houston’s Fifth Ward, Menefee stated the company notified the corporate accountable that it will sue underneath the Useful resource Conservation and Restoration Act, a federal hazardous waste regulation. However suing underneath federal legal guidelines in federal court docket comes with vital downsides. Bringing a case earlier than a federal court docket is time-consuming, pricey, and cumbersome. 

However, convincing the lawyer normal’s workplace to permit the county to deliver its personal case requires the expenditure of serious political capital, Menefee stated. “Every time that I’ve to go up and ask them for his or her permission, there’s a value,” he stated. In the end, it signifies that the county can’t pursue polluters as vigorously as it’d in any other case. 

“It’s demoralizing, and it’s dangerous to Harris County communities as a result of now they don’t get to have their day in court docket on environmental points,” Menefee stated.