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Attorney General Nessel Joins Multistate Efforts

LANSING - Michigan Attorney General Dana Nessel has joined attorneys general from around the nation in a number of multistate efforts in the last several weeks, including the following:

Supreme Court Brief Supporting CDC Eviction Ban

PLEASE NOTE: On June 29, 2021, the Supreme Court denied the plaintiffs' motion to vacate the stay, allowing the CDC's eviction moratorium to remain in place through July 31, 2021, at which point the CDC plans to lift it.

On June 11, Nessel joined a coalition of 23 attorneys general in filing a brief with the U.S. Supreme Court supporting the order by the Centers for Disease Control and Prevention (CDC) that prohibits evictions during the COVID-19 pandemic to help stop the spread of the disease.

In an amicus brief filed in Alabama Assoc. of Realtors v. HHS, which is an emergency application to the Supreme Court, the attorneys general argue that the CDC's eviction moratorium should remain in place and states would face potentially catastrophic harm if it is suddenly vacated. Specifically, the coalition argues that without the moratorium in place, millions of vulnerable individuals would be unsafely forced from their homes and into streets, crowded shelters, and others' homes across state lines, risking spreading COVID-19. With only about half of Americans fully vaccinated, such action could jeopardize the United States' fragile health and economic recovery. Numerous jurisdictions passed their own local moratorium on evictions, but the CDC's Order is critical to prevent the spread of COVID-19 across state lines.

"As Michigan continues to vaccinate residents against this deadly virus, it remains imperative to keep in place programs that provide financial support to those most affected by the pandemic," Nessel said. "We signed this brief because I remain committed to protecting this state's residents.  And ensuring that our most vulnerable Michiganders maintain a roof over their heads as the economic recovery gets underway is an important piece of that commitment."

In 2020, Congress passed COVID-19 relief legislation, which included a 120-day eviction moratorium for certain rental properties. When that legislation expired in July 2020, the CDC issued its own eviction moratorium order under its authority to protect public health. The CDC order protects certain tenants who aren't able to pay full rent because of a loss of income or medical expenses from being evicted at residential properties nationwide. The order was originally set to expire on December 31, 2020, but was extended by Congress through January 31, 2021, and has been further extended by the CDC. It is currently set to run through June 30, 2021 and could be extended again.

The eviction ban was challenged by property owners, managers, and trade associations that want to resume evictions. The lower court in this case ruled that the CDC does not have the authority to order a nation-wide eviction ban, but granted the government's request to stay the court's decision pending appeal. After the court of appeals denied plaintiffs' motion to vacate the stay, the plaintiffs appealed to the Supreme Court, asking for the stay to be vacated.

Letter Urging NHTSA to Repeal Trump-era Attack on California Authority to Set Clean Car Standards

On June 11, Nessel joined a coalition of 22 states and four cities in urging the National Highway Transportation Safety Administration (NHTSA) to repeal a Trump-era rule, known as the "Preemption Rule," that purported to preempt California's greenhouse gas and zero-emission-vehicles (ZEV) standards. California's standards have been adopted by states representing more than one-third of the U.S. automobile market and have resulted in emissions reductions of hundreds of thousands of tons annually.

In their letter, the coalition argues that NHTSA lacked authority under the Energy Policy and Conservation Act to promulgate the Preemption Rule and that the rule must be repealed.

"In the face of a worsening climate crisis, these standards are important now more than ever and a necessary tool in limiting greenhouse gas emissions," said Nessel. "I join this coalition in urging the NHTSA to repeal this damaging rule so that states can enact policies to combat climate change and protect the public health."

California's greenhouse gas and ZEV standards are critical to the fight against climate change, for improving air quality and protecting public health, and for driving technological innovation. Fifty years of experience has shown that the adoption of vehicle emissions standards not only reduces vehicular pollution in the present but drives the development and deployment of technologies that enable further cost-effective emission reductions in the future.

In the comment letter, the coalition argues that NHTSA must repeal the Preemption Rule because NHTSA lacked authority to promulgate it in the first place and should do so for the additional reason that the rule was an unprecedented and unwarranted attack on longstanding state laws central to states' efforts to protect their residents from the harmful effects of air pollution and climate change.

Letter Calling on SEC to Require U.S. Companies to Disclose Financial Risk from Climate Change

On June 14, Nessel joined a coalition of attorneys general in urging the Securities and Exchange Commission (SEC) to require U.S. companies to provide detailed and accurate information about the financial risks they face from climate change. The need to mandate such disclosures is urgent and falls squarely within existing SEC authority. In the past five years alone, climate change-related weather events cost U.S. companies more than $600 billion in direct economic damages. Mandatory climate change-related disclosures are essential to insulate U.S. and global financial systems from systemic risk associated with climate change and to protect investors, including the many ordinary Americans whose retirement savings are largely investment-based.

Climate change is a concrete threat, and one that will have significant impact to the U.S. economy and its financial system. Rising temperatures are expected to decrease the United States' annual gross domestic product between 1.9% and 10.5%, and the economy is more likely to experience systemic shocks from climate-related events when financial markets lack sufficient, accurate information to price in climate risk. Demand from institutional and retail investors for U.S. companies to respond to the impacts of climate change have grown significantly, as evidenced by the recent election of three new members to Exxon's board who intend to push the company to address climate change, as well as the overwhelming passage of a shareholder resolution demanding that Chevron reduce its carbon emissions.

Currently, the majority of U.S. companies do not make any climate change-related disclosures, and the disclosures that companies do make are often boilerplate, suggesting that the companies are not thoroughly evaluating or disclosing their exposure to climate change-related risks. In the letter, the attorneys general urge the SEC to mandate that companies, both public and private, assess climate change-related risks affecting their businesses and disclose that information to investors, arguing that the current disclosure requirements the SEC has in place are insufficient.

A copy of the comment letter is available here.

Letter Urging Congress to Provide States with Same Antitrust Venue Rights as Federal Enforcers

On June 18, Nessel joined a coalition of 52 attorneys general in sending a letter urging Congress to pass the State Antitrust Enforcement Venue Act of 2021. The legislation would provide states with the same venue selection rights as federal enforcers by prohibiting the transfer of state antitrust actions into multidistrict litigation.

State attorneys general pursue antitrust enforcement actions on behalf of consumers and the economies in their states and territories. Under current law, these law enforcement actions may be subject to transfer to multidistrict litigation. In many actions, cases are then postponed, transferred to other federal courts, or joined with other lawsuits brought by private plaintiffs.

Enforcement actions filed by the federal government on behalf of the United States, however, cannot be transferred to multidistrict litigation. By providing states with the same venue selection rights as the federal government, states would be entitled to select and remain in their preferred venue without the inefficiencies that typically occur with multidistrict litigation.

Letter Calling for Passage of the Federal Equality Act

On June 24, Nessel joined a coalition of 25 attorneys general to call on the U.S. Senate to pass legislation that protects individuals from discrimination on the basis of sexual orientation and gender identity.

The coalition issued a letter to Senate leadership urging the chamber to pass H.R. 5, the Equality Act. The Equality Act would strengthen federal legal protections for LGBTQ Americans by clarifying and modernizing federal civil rights law and would prohibit discrimination against LGBTQ individuals in employment, education, federally-funded programs, housing, public accommodations, credit and jury service. The attorneys general argue that updates to the nation's civil rights laws are long overdue.

In June 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects employees who are fired for being gay or transgender. The court determined that employment discrimination based on sexual orientation or gender identity is discrimination on the basis of sex, which is prohibited by Title VII. In their letter today, the coalition points out that despite the court's decision, the absence of explicit federal prohibitions on discrimination based on sexual orientation and gender identity leave many LGBTQ Americans vulnerable to experiencing discrimination in education, housing, credit, and health care. The coalition also points out that federal law does not currently prohibit sexual orientation and gender identity discrimination in other areas, such as federally-funded programs and the jury system. As a result, individuals who do experience such discrimination are left without legal recourse.

The Equality Act addresses these gaps by clarifying that existing protections under federal civil rights law include discrimination on the basis of sexual orientation and gender identity. The changes will create and expand protections for LGBTQ Americans facing discrimination in education, employment, housing, credit and public facilities. The legislation will also prohibit discrimination on the basis of sex, including sexual orientation and gender identity, in sections of the Civil Rights Act of 1964 that prohibit discrimination in public accommodations and federal funding. In addition, the legislation expands the definition of public accommodations to expressly prohibit sex discrimination, such as denying services to people because they are pregnant or breastfeeding, or denying transgender individuals access to sex-specific restrooms corresponding to their gender identities. The legislation further clarifies that the U.S. attorney general may intervene in federal court actions alleging denial of equal protection of the laws based on sexual orientation and gender identity.

The coalition states that the Equality Act is needed to create a national standard, expanding civil rights protections beyond the existing patchwork of state laws.

Letter Urging Congress to Provide FTC with Much-Needed Tools to Protect Consumers

On June 28, Nessel joined a coalition of 29 attorneys general in taking action to support the ability of the Federal Trade Commission (FTC) to successfully combat fraudulent and anticompetitive conduct. In a letter to congressional leaders, the coalition expressed their strong support for the Consumer Protection and Recovery Act (H.R. 2668), which would ensure the ability of the FTC to obtain equitable monetary relief, including restitution for consumers and disgorgement of ill-gotten gains, after a U.S. Supreme Court decision changed established practice earlier this year.

For 40 years, the FTC was able to obtain equitable monetary relief by suing wrongdoers in district court. In fact, in the last five years alone, the FTC successfully recovered over $11.2 billion in refunds for consumers through court actions. But this changed with the Supreme Court's April 2021 decision in AMG Capital Management, LLC, et al. v. Federal Trade Commission, which limited the ability of the FTC to recover money for injured consumers.

The FTC is an important partner to states as they police anticompetitive, unfair, and deceptive trade practices. The lack of authority to seek equitable monetary relief - directly in court proceedings - undermines the FTC's efforts to combat unfair and deceptive practices. This, in turn, forces states to divert resources away from other consumer protection efforts and perform duties that were previously fulfilled by the FTC.

Unfair and deceptive trade practices are a serious problem in the United States and the COVID-19 pandemic has led to an uptick in consumer complaints. Likewise, unfair competitive practices have dire and adverse impacts on consumers and businesses. Monopolization, collusion, and other unlawful conduct threaten the proper functioning of the American marketplace and cost consumers and responsible businesses billions of dollars each year. Curtailing the remedies available to the FTC enables bad actors to prey on consumers.

Letter Urging FERC to Curb Needless Incentives for Transmission Developers

On June 28, Nessel joined a coalition of attorneys general and state ratepayer advocates in reiterating a call to the Federal Energy Regulatory Commission (FERC) to reject unnecessary and unjust incentive payments to transmission developers.

On April 15, 2021 FERC issued a draft rule, revisiting a proposal issued during the Trump Administration that provides a series of generous new transmission incentives, including extra payments to transmission developers to join regional transmission organizations -  something developers generally have to do anyway.  In its new April 2021 rulemaking, FERC invited comments on the incentive to join regional transmission organizations. The multistate coalition comments oppose overgenerous incentives for participation by transmission utilities in Regional Transmission Organizations ("RTOs") and Independent System Operators ("ISOs"), particularly if such participation is mandatory. The comments support reforms designed to limit any such incentives to the minimum amount necessary to encourage the desired goal of least cost to ratepayers. The comments reiterate a previous call to FERC made under the previous Administration.

The coalition agrees with FERC Chairman Richard Glick, who stated in his dissent to the current rule: "Incentives must actually incentivize something. A payment that does not incentivize anything is a handout, not an incentive.  Handing out customers' money to transmission owners without a strong belief that that money will induce beneficial conduct is unjust and unreasonable and inconsistent with the Congress."

The savings to ratepayers from ending this incentive will be substantial.  The evidence submitted to FERC shows that this incentive costs consumers up to $400 each year nationally.

A copy of the letter is available here.