Nessel joined series of multistate efforts during last month of 2020

During the last month of 2020, Michigan Attorney General Dana Nessel joined attorneys general from across the nation in the following multistate actions:

• Amicus Brief Challenging Trump Administration’s Rollback of Clean Water Protections:

On Dec. 17, Nessel joined 14 other attorneys general in filing a brief – in the U.S. District Court for the District of Massachusetts – challenging regulation by the U.S. Environmental Protection Agency and the Army Corps of Engineers (agencies) that illegally strips away critical, longstanding federal water quality protections under the federal Clean Water Act. The regulation excludes a substantial amount of wetlands and streams throughout the country, which were previously protected by the act. 

“The Trump administration continues to show a blatant disregard for science and it is incumbent upon my colleagues and I to take actions like filing this amicus brief to protect states’ waterways and wetlands,” said Nessel. “States share water resources with one another and without protective national standards, these shared resources will be subject to the standards of the lowest common denominator. A regulation that goes against the very purpose of the Clean Water Act doesn’t have a place on the books.” 

The brief argues that the regulation is contrary to the purpose of the Clean Water Act, which is to restore and maintain the nation’s water quality. The brief further argues that the agencies ignored the significant harms that the regulation will inflict on states, and declined to conduct a comprehensive review of the scope of waters that would be left unprotected by the new regulation, ignoring that the regulation’s massive reduction in federal protections will lead to serious degradation of ecological resources.

Michigan is currently a plaintiff, along with a number of other states and cities, in a lawsuit challenging the same regulation in the U.S. District Court for the Northern District of California.

• Work Authorization Limitations for Immigrants Comment Letter: 

On Dec. 21, Nessel joined 15 other attorneys general in opposing a proposed Trump administration rule that would virtually eliminate work authorization for nearly all immigrants who were released under orders of supervision. 

In the comment letter submitted to the U.S. Department of Homeland Security (DHS), the coalition argued that the proposed rule lacks reasoned justifications and would harm immigrant communities, small businesses and states’ economies. Moreover, the proposed rule — which impacts approximately 17,000 individuals and their families nationwide — would also violate federal law, increase the cost of publicly-funded social services, and further burden individuals and businesses that are already suffering from the economic fallout of the COVID-19 pandemic. 

“The Trump administration is once again taking aim at immigrant communities. This proposed change is ill-conceived, unlawful, and will hurt us all,” Nessel said. “Immigrants – like any American – have the right to earn an income to provide for their families. Any effort to put unnecessary roadblocks in place for these individuals who simply want to do the right thing is unconscionable.”  

Immigrants under orders of supervision are already required to meet certain conditions to qualify for temporary release from DHS custody. Upon their release, DHS has the authority to grant employment authorization documents that allow those under orders of supervision to legally work in the United States. The proposed rule seeks to virtually eliminate their work authorization eligibility, with one narrow exception.

In the comment letter, the coalition urges DHS to withdraw this proposed rule because, in addition to the hardship on these individuals and their families, the loss of their employment would also harm employers and the states’ economies and tax bases, which would also cause an increase in expenditures on publicly-funded social services. According to DHS’s own estimates, the financial damage by prohibiting these immigrants to legally work in the U.S. will result in federal tax losses ranging from $900 million to more than $2 billion from fiscal years 2020 to 2029. States will lose tax revenue for the same reason.

The coalition also emphasizes that the proposed rule is contrary to law because Congress never gave DHS authority to categorically deny work authorization to immigrants under the Immigration and Nationality Act. Lastly, the purported acting secretary of Homeland Security, Chad Wolf, was not legally authorized to exercise the functions and duties of the secretary of Homeland Security position based on the Homeland Security Act, as the courts have already found. 

• Lawsuit Challenging Trump Administration Rule Undermining Energy Efficiency Standards for Dishwashers:

On Dec. 29, Nessel, 12 other attorneys general and the City of New York filed a lawsuit challenging the Department of Energy’s (DOE) final rule undermining current energy efficiency standards for residential dishwashers. 

The rule, issued at the request of the anti-regulatory group Competitive Enterprise Institute, unjustifiably exempts a class of dishwashers from energy efficiency standards by creating a new, unnecessary category of dishwashers defined only by shorter cycle times. In the lawsuit, the coalition intends to argue that the final rule violates the Energy Policy Conservation Act, the Administrative Procedure Act, and the National Environmental Policy Act.

“The Trump administration is needlessly, and recklessly, rolling back energy efficiency standards that have helped consumers save money and avoid excess pollution to our environment,” Nessel said. “The Department of Energy must be held accountable for continuing to undermine these standards.”

The Energy Policy and Conservation Act directs the DOE to establish energy efficiency standards covering most major household products, including dishwashers. The DOE’s long-standing energy efficiency program has resulted in substantial economic and environmental benefits, with more than $2 trillion in projected consumer savings and 2.6 billion tons of avoided carbon dioxide emissions by 2030. The Energy Policy Conservation Act’s anti-backsliding provision prohibits DOE from “prescrib[ing] any amended standard which increases the maximum allowable energy use . . . of a covered product.”

In October 2020, the DOE – ignoring concerns raised in comments by a California-led coalition – moved to finalize its proposal to create a new category of dishwashers defined only by shorter cycle times. By creating a new product class, the DOE claims that short-cycle dishwashers are not subject to existing energy efficiency standards for residential dishwashers. In the lawsuit, the coalition intends to argue that the final rule:

—Violates Energy Policy Conservation Act’s anti-backsliding provision;

—Fails to comply with National Environmental Policy Act by invoking an inapplicable categorical exclusion to avoid conducting an environmental review; and

—Is arbitrary and capricious under the Administrative Procedure Act.

• Amicus Briefs Opposing Trump Administration “Death to Asylum” Rule:

On, Dec. 30, Nessel and 21 other attorneys general filed two amicus briefs in support of two separate challenges to a Trump administration rule that guts major aspects of the existing asylum system and effectively eliminates the meaningful right to apply for protection in the United States. 

By severely restricting asylum eligibility and abolishing certain procedural protections, the so-called “death to asylum” rule will result in the deportation of bona fide asylum seekers who are certain to face persecution or torture in their home countries. As a result, the rule will inflict direct harm on asylum seekers and the states that welcome them across the country.

“This rule imposes sweeping changes on the asylum system that will significantly raise the qualifications for gaining asylum in this country, codify discretionary factors that will result in the denial of many claims and allow immigration judges to deny cases without a hearing,” Nessel said. “For those seeking reprieve from persecution and torture in their home countries, this rule could be the line between life and death for them, and my colleagues and I cannot ignore this attempt by the federal government to deny those seeking refuge in the United States.”

Set to go into effect on Jan. 11, 2021, the final rule will make it nearly impossible for people to successfully obtain humanitarian relief in the United States. These consequences will fall hardest on survivors of trauma, and victims of gender, gang, and homophobic violence. The rule threatens to do so through a wide range of artificial and arbitrary new barriers. For example, the rule creates a list of adverse discretionary factors that would provide a basis for unilaterally denying even meritorious asylum applications. 

The coalition argues, among other things, that the rule will:

—Undermine our country’s and the states’ commitment to being a safe haven for asylees fleeing persecution by upending the current asylum system and increasing family separation;

—Hinder enforcement of legal protections and criminal laws by pushing those who might otherwise seek asylum into the shadows where they are more vulnerable to exploitation;

—Burden state programs, leading to an increased need for legal representation to navigate the extremely complex asylum process made even more complex by this rule, as well as medical and mental health services; and

—Harm the states’ economies and workforces, robbing them of essential workers and their contributions to local businesses.

• Catholic Legal Immigration Network v. EOIR

On Dec. 31, Nessel joined 19 other attorneys general in filing an amicus brief  in support of a challenge to a Trump administration final rule issued by the U.S. Department of Justice that increases the fees imposed for appeals, motions, and other forms of deportation and removal relief available in proceedings before the Executive Office for Immigration Review. 

As a result, the rule will prevent immigrants from appealing deportation orders or asserting valid bases to remain in the United States, such as family-based cancelation of removal or asylum, simply because they cannot afford to pay the filing fee. Such a result conflicts with Congress’s objectives of keeping families together, promoting economic prosperity, and upholding the United States’ international treaty obligations to protect those fleeing persecution or torture.

The increases for different applications range from 205% to 800%, and would have an adverse effect on immigrants and refugees in Michigan. 

“Michigan is home to a significant number of immigrants and refugees who play a vital role in our economy. They make up just under 10% of the state’s workforce, pay approximately $6.7 billion in state and local taxes, have a spending power of $18.2 billion, and comprise close to 34,000 of the state’s entrepreneurs,” said Nessel. “This final rule has the potential to inflict harm on state and local economies, separate families, and would undermine state programs and laws in place to aid and protect immigrants.”