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Stacking the Deck in State Attorneys General Offices

The New York Attorney General’s attack on energy manufacturers should concern businesses and citizens everywhere. Her lawsuit is packaged as a state law enforcement action, but it was actually spurred by a privately-funded program that places outside lawyers into state attorney general offices and pays their salaries for the very purpose of bringing these suits.

As the Wall Street Journal editorialized, “The ethical problems here should be obvious. . . . Private interests are leveraging the police powers of the state to pursue their political agenda, while a government official is letting private interests appear to influence enforcement decisions.”

The program at issue is the State Energy and Environmental Impact Center, which is housed at New York University’s School of Law.  As recent news stories have exposed, this program donates the services of policy-driven attorneys to state attorney general offices to help them advance a “progressive environmental” agenda.

Many other state attorneys general have applied to take part in this program. So far, there are 14 “special assistant attorneys general” working in attorneys general offices in eight states and the District of Columbia. One of them is working in the New York AG’s office and was among the signatories on Underwood’s lawsuit.

The fact that so many state attorneys general are relying on litigators paid by an outside entity with a clear policy agenda should alarm government ethicists across the political spectrum. Outgoing Wisconsin Attorney General Brad Schimel cautioned that the NYU program “would be a conflict of interest under the Code of Ethics for state employees, which prohibits a state employee from using his or her position for financial gain or for the private benefit of an organization with which the employee is associated.”

The good news is that despite attempting to stack the deck, three lawsuits similarly targeting energy manufacturers, though brought by municipalities—New York City, San Francisco, and Oakland—have failed. In these rulings, judges nominated by presidents of both parties have spelled out what, in reality, is a commonsense notion: setting national energy policy is best addressed by the legislative and executive branches, not judges.

The Manufacturers’ Accountability Project will continue defending manufacturers against these attempts to abuse our nation’s legal system—whether it is baseless lawsuits or ethically questionable public-private partnerships—that undermine the hard work of manufacturers across the nation.