State Attorneys General

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The Basics

Last week, Virginia Governor Glenn Youngkin announced that, effective January 1, 2025, Virginia will exit a California-led electric vehicle (EV) mandate and will instead comply with less stringent federal guidelines. The announcement followed Attorney General (AG) Jason Miyares’ issuance of an official advisory opinion concluding, as a matter of law, that Virginia is not beholden to broad, recently passed mandates adopted by the California Air Resources Board (CARB), which were also set to take effect at the start of the new year.

California Attorney General (AG) Rob Bonta has issued two petitions to enforce an investigative subpoena against the Plastics Industry Association (PLASTICS) and the American Chemistry Council (ACC). PLASTICS lobbies on behalf of entities involved in the plastics supply chain. ACC is a trade association that represents chemical companies who create plastic products. The AG’s petition accuses PLASTICS and ACC of failing to comply with the AG’s prior subpoenas by providing insufficient responses and failing to provide requested documents. In response, PLASTICS and ACC filed lawsuits against the AG in Washington, D.C.

On June 3, the U.S. Treasury Department filed a reply in its 11th Circuit litigation[1] against the National Small Business Association regarding the constitutionality of the Corporate Transparency Act (CTA). Of late, the Treasury Department has faced additional pressure and scrutiny, with 22 states filing a joint amicus brief last month, asserting that the CTA displaces state authority and would economically harm residents.

Tennessee and Mississippi attorney generals (AG), joined by 13 other states, filed a multistate lawsuit in the Southern District of Mississippi. The lawsuit challenges the U.S. Department of Health and Human Services’ (HHS) attempt to expand the breadth of the Affordable Care Act’s (ACA) antidiscrimination provision, known as Section 1557. This section prohibits discrimination on the basis of sex. HHS’ new rule, which is scheduled to take effect on July 5, extends the definition of sex to encompass gender identity. The AGs argue that HHS’ expansion of the ACA provision will have undesirable effects on the medical industry. They claim that the promulgation of this new rule is also unconstitutional and interferes with states’ reserved powers.

On Tuesday, Texas Attorney General (AG) Ken Paxton announced the creation of a team dedicated solely to the prosecution and enforcement of Texas’ privacy laws. The team will focus on handling cases under at least seven different laws, including the state’s relatively new comprehensive consumer privacy law, and will be part of the office’s Consumer Protection Division. In his announcement, the AG touts the team as the largest such unit in the U.S., and one that will aggressively enforce the state’s privacy laws.

California Attorney General (AG) Rob Bonta is leading a coalition of Democratic AGs from 22 states and the District of Columbia to defend the Environmental Protection Agency’s (EPA) rule that sets stringent greenhouse gas emissions standards for heavy-duty vehicles. The coalition filed a motion to intervene in the U.S. Court of Appeals for the D.C. Circuit, where the EPA’s rule is facing a legal challenge from Republican AGs.

Continued focus on antitrust enforcement has led the New Jersey and California attorneys general (AG) offices to go on a hiring spree. New Jersey AG Matthew Platkin recently announced the establishment of a permanent, stand-alone Antitrust Litigation and Competition Enforcement Section to enforce the New Jersey Antitrust Act. Meanwhile, the California AG’s office intends to hire eight new antitrust attorneys in June 2024, with more expected throughout the year. The announcement out of the California AG’s office aligns with the state’s aggressive antitrust enforcement practices, and comes just two months after the California Department of Justice announced its plan to invigorate criminal antitrust prosecutions.

On May 17, 2024, Colorado Governor Jared Polis signed into law Senate Bill 24-205, the Colorado Artificial Intelligence (AI) Act, making Colorado the first U.S. state to enact comprehensive legislation regulating the use and development of AI systems. The act is designed to regulate the private-sector use of AI systems, particularly addressing the risk of algorithmic discrimination arising from the use of so-called “high-risk AI systems.” The law will take effect on February 1, 2026, and the Colorado attorney general (AG) has exclusive enforcement authority.