The Pew Charitable Trusts

Assuming a role that used to be played out at the federal level, state attorneys general are tackling some of the nation's biggest issues environmental enforcement, corporate corruption and prescription drug prices.

On Monday, for example, the top prosecutors in 12 states Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin collectively sued the Environmental Protection Agency (EPA) for changing how it implements the Clean Air Act.

Under the Act, companies rebuilding or upgrading power plants also must install environmentally friendly technologies, a requirement that many industry groups say is too expensive.

The announced change would allow utilities to upgrade old coal-fired power plants and oil refineries without adding new pollution controls. The EPA said in a statement that the new rule will not "result in any significant changes in emissions."

The attorneys general, ten Democrats and two Republicans, disagree. "This new rule is an unjustified assault on citizens' rights to breathe clean air. We are not going to sit by quietly and allow the energy interests in this country to receive special treatment while so many of our children and elderly are needlessly suffering from respiratory problems that are, in essence, brought on by bad environmental policy," Massachusetts Attorney General Tom Reilly said in a prepared statement.

This kind of legal action state attorneys general flexing their muscles beyond state borders, suing the Bush administration, suing big businesses has become a routine part of policymaking in the United States. Business groups and conservative academics say it gums up the country's regulatory process and the economy, while supporters, including environmental and consumer organizations, say the attorneys general are filling a necessary role that has been neglected by the Bush administration and Congress.

"There was illegal behavior on Wall Street and the Securities and Exchange Commission wasn't doing anything. Are you going to rely on Harvey Pitt or Eliot Spitzer?" said Jim Tierney, former attorney general of Maine and an adjunct professor of multi-state litigation at Columbia Law School.

Pitt, a lobbyist for big business selected by President George W. Bush to head the federal Securities and Exchange Commission, was criticized by many political leaders for acting timidly as management and accounting scandals erupted at Enron and other corporate giants. Pitt was ultimately forced to resign.

Spitzer, who serves as New York's attorney general, investigated Merrill Lynch last year for giving misleading advice to investors. Together with federal regulators, Spitzer reached a settlement in December forcing Merrill Lynch and nine other investment firms to change their advising practices and pay $1.4 billion in fines.

In the year since Spitzer's Wall Street settlement, many other state attorneys general have stepped beyond their traditional roles to confront issues of national importance, sometimes alone, sometimes in concert.

In June, for example, the attorneys general of Connecticut, Maine and Massachusetts sued the EPA for failing to regulate carbon dioxide emissions, which they say causes global warming. This follows a December lawsuit that nine state attorneys general initiated against the EPA for crafting rules that would exempt some power plants from environmentally friendly upgrades, a preview to Monday's lawsuit.

More recently, rising prescription drug prices have become targets of state attorneys general investigations.

In October, Massachusetts Attorney General Thomas F. Reilly (D) called on Mark McClellan, the director of the Food and Drug Administration, to allow for the importation of prescription drugs from other countries and issue regulations to make the process safe. Massachusetts is home to Springfield Mayor Michael Albano, who is defying the FDA by importing drugs from Canada for city employees, claiming savings of $9 million a year.

FDA Associate Commissioner William Hubbard told The Boston Globe last week (10/23) that the agency is "not considering legal action against cities or states," but will pursue legal action against "businesses that sell commercial quantities of drugs."

In September, Minnesota Attorney General Mike Hatch (D) launched a broad attack on the pharmaceutical industry, issuing a report that claims high prescription drug prices are protected by the industry's political power and filing a lawsuit against GlaxoSmithKline, the world's No. 2 pharmaceutical company, for refusing to distribute drugs to Canadian pharmacies that sell drugs to Americans.

The attorneys' general activity on national issues is not without its critics.

"These are explicitly attempts to regulate the entire national economy, to impose a particular model of social change on the entire economy, and we have a body that's entrusted to do so it's called the United States Congress," said Michael Greve, director of the federalism project at the American Enterprise Institute, a Washington, D.C.-based think tank that argues for limited government.

Maine's Tierney defends the attorneys general, claiming that the interconnected nature of today's economy necessitates changes in how they perform their basic duties. Tierney, who served as Maine's attorney general from 1980 through 1990 is widely credited with leading the collective charge of today's attorneys general.

"My local pharmacy, which used to be owned by two brothers in town, is now Rite Aid. So what Rite Aid does in Lisbon Falls, Maine, it also does in San Francisco and New York City. The only way to perform traditional consumer protection functions, which have always been the job of the attorneys general, is by looking at national firms," Tierney said.

Attorneys' general forays into the national arena are not an altogether new development. The states' chief law enforcement officers first stepped-out during the deregulatory days of the Reagan administration. This activity was reinvigorated by the landmark 1998 settlement with tobacco companies, which is depositing more than $200 billion in state coffers over 25 years.

To the chagrin of some, state attorneys general show no sign of letting up anytime soon.

"Our perspective is that we have enough agencies in government tormenting us," said Scott Montrey, spokesman for the National Association of Manufacturers (NAM). NAM, an organization that represents American manufacturers, has opposed the attorneys general on many policy-making and legal fronts.