Louisiana AG hopeful takes aim at Biden energy agenda

By Niina H. Farah | 05/22/2023 07:12 AM EDT

Elizabeth Murrill, the Bayou State’s Republican solicitor general, is vying to become the next heavyweight foe of the president’s climate plans.

Elizabeth Murrill, solicitor general in Louisiana.

Elizabeth Murrill, solicitor general in Louisiana. Office of Louisiana attorney general

Elizabeth Murrill, a rising star in the office of one of the top critics of President Joe Biden’s energy and climate policies, is running to be the first woman to serve as Louisiana’s chief legal officer.

Her name may not be widely known outside of Republican legal circles, but Murrill has played a leading role in recent years in another historic position, as the Bayou State’s first solicitor general, responsible for crafting high-profile GOP court challenges against the Biden administration.

If she is elected as attorney general this fall, Murrill — “Liz” to those close to her — would be even better positioned to shape legal opposition to some of the keystones of Biden’s regulatory agenda that will be finalized in the next two years.


As a champion of the burgeoning legal theory known as the “major questions” doctrine, Murrill is pushing for federal courts to be less deferential to the regulatory powers of agencies like EPA. That strategy, if successful, could prevent the Biden administration — or a future White House — from taking aggressive action on urgent matters like public health emergencies and climate change.

“If she is the next AG, I would expect her to be quite capable and quite active in suing the administration,” said Paul Nolette, a political science professor at Marquette University.

Among the Biden rules Murrill said she would target as Louisiana attorney general is EPA’s latest effort to regulate greenhouse emissions from power plants. The final version of the rule, which is expected in summer 2024, will be a key feature of Biden’s climate agenda.

Jeff Landry — Louisiana’s current attorney general, a Republican who is running for governor — swiftly condemned a draft version of the rule in a Twitter post after its release: “This is yet another proposal that would drive up inflation, raise food costs, and increase electricity prices; and I will fight it.”

As Louisiana’s first solicitor general, Murrill is already a “major player” in multistate litigation against federal regulatory power, said Nolette.

While the attorney general is the top law enforcement official in the state, the solicitor general specializes in developing legal strategies and represents the state in litigation all the way up to the nation’s highest bench.

The solicitor general position has been adopted in most states and reflects how polarization and action on “hot button” issues have become institutionalized, said Nolette.

“If you have an SG now and a team of appellate lawyers who are top-notch, they can handle this in ways that AGs in decades past had no capacity for this type of high-level appellate work,” Nollette said.

Murrill is closely involved in her team’s work, which has included a challenge to the Biden administration’s pause of public lands fossil fuel leasing, pending a climate review. A lower bench sided with Louisiana and blocked the leasing pause, but the 5th U.S. Circuit Court of Appeals reversed the ruling last August.

The Louisiana solicitor general also led another multistate challenge against the social cost of greenhouse gases, a metric used by agencies to assess the benefits of more stringent climate regulations. Murrill’s argument in that case also prevailed in federal district court, but fell flat before the 5th Circuit. Landry’s office said it is still exploring its legal options when asked whether it plans to file an appeal with the Supreme Court.

Biden’s energy policy is a “massive overstep,” Murrill said.

“The government’s approach to the fossil fuel industry, to energy production and sustainable energy are, I think, extremely flawed,” she said.

A “hard charger,” Murrill is not shy about telling people what they don’t want to hear, said Lori Kalani, who through her role as co-chair of the state attorneys general practice at the firm Cozen O’Connor has known the Louisiana solicitor general for close to a decade.

Outside of her work, Murrill also has a deep appreciation for the outdoors. The former avid marathoner said nowadays, she enjoys spending time on the Gulf Coast or out in the woods with her husband and four adult sons. She enjoys fishing and often takes out her kayak to spot redfish and speckled trout.

At times, she sets her sights on even larger prey. Kalani recalled once going on an alligator hunt with Murrill.

“I was mad at her because she shot a bigger alligator than I did,” Kalani said.

Defending the Constitution, fossil fuels

Murrill may not yet be calling the shots in the attorney general’s office, but the solicitor general said she and Landry are closely aligned on key conservative issues, like protecting the economy and preventing federal overreach.

“It’s why I love the job that I have so much, because I can fight for things that I believe are really important to the continued operation of the republic in a way that was envisioned by the founders,” she said.

She said the major questions doctrine bolsters Louisiana’s arguments that the Biden administration’s energy policies carry “enormous” economic implications for Louisiana.

The legal doctrine — newly articulated in the Supreme Court’s blockbuster 2022 climate ruling, West Virginia v. EPA — holds that a federal agency cannot take action that will have a major economic impact unless that power has been explicitly delegated by Congress.

Environmental lawyers have sharply criticized the doctrine as “right-wing fabrication” and said its proponents are seeking to undo long-standing legal precedent.

In West Virginia v. EPA, the Supreme Court used the major questions doctrine to limit the agency’s options for controlling greenhouse gas emissions from power plants. Louisiana was among the GOP-led states that pressed the high court to overturn a more expansive reading of EPA’s regulatory authority.

Since then, offices of Republican attorneys general — like those run by Landry and Murrill — have repeatedly invoked major questions in challenges to the federal government to further rein in the scope of agency power.

Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law, said it is unclear how major questions doctrine challenges will play out in environmental and climate cases, since there have only been a small number of such cases that have reached the Supreme Court. Litigants, he said, are “raising it everywhere across the board” — even as the justices have yet to clearly define which questions it considers “major.”

“Everything is a major question now, and it cannot be the case that everything is a major question,” Burger said. “That doesn’t fit with the court’s articulation of the doctrine, and it doesn’t fit with common sense.”

As one example, Republican attorneys general are now raising major questions claims against a Securities and Exchange Commission rule to require public companies to report climate risks in their supply chains.

“Not everything that touches on climate change is necessarily a major question,” said Burger, “just because one side of the political divide has made it into a highly politicized issue.”

Murrill said she and other state legal offices would continue to invoke the doctrine in response to attacks on the separation of powers embedded in the Constitution. While supporters of federal regulation say that executive action is needed in the face of legislative gridlock, Murrill said the key issue is whether Congress clearly states that federal agencies have the power to act.

“What they’re basically saying is, ‘Because Congress can’t get it done, we’re going to go violate the Constitution so that we can get it done,'” Murrill said.

“The Constitution doesn’t care that Congress can’t get it done,” she later added. “That’s a political problem that is resolved through the electorate.”

Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center, did not mince words in his critique of efforts by Murrill and others to restrict agency powers. The center has strongly backed the Biden administration’s discretion to halt federal oil and gas leasing.

The major questions doctrine is a “bogus right-wing argument with no basis in the U.S. Constitution,” he said in an email. “Congress is fully within its power to codify laws that leave room for science-based action that accounts for the context of a particular decision.”

He added that lawmakers have recognized the complexity of public lands — with their mountain ranges, forests, deserts and coastlines — and deferred to the Bureau of Land Management’s expertise in protecting varied uses of those acres other than fossil fuel leasing.

Schlenker-Goodrich and other critics also warned of the risks of state politicians not pushing back on the fossil fuel industry.

“It’s absurd that Louisiana and other fossil fuel states are doing the fossil fuel industry’s bidding,” Schlenker-Goodrich said. “It shows who is really in control of those petro-states.”

Murrill, who saw the effects of devastating storms up close when she provided pro bono legal assistance to victims of Hurricane Katrina in 2005, said citing climate change is too often used as a “power grab” in the wake of an emergency.

The energy sector has helped boost people out of poverty around the world, she said.

“I think it’s flatly wrong to attack an entire industry because somebody in Washington, D.C., thinks that’s what ought to happen,” she said.

‘She can show you what she’s already done’

Murrill’s close ties with Landry and the Republican Party, as well as her history in the Louisiana government, could boost her odds of winning the attorney general race, legal observers said.

In addition to arguing before the 5th Circuit and Louisiana’s highest bench, Murrill has appeared five times before the U.S. Supreme Court since becoming state solicitor general. Her resume at the high court includes the defense of a Louisiana law requiring physicians performing abortions to have hospital admitting privileges in June Medical Services LLC v. Russo. In 2020, the justices handed down a 5-4 decision invalidating the Louisiana law, in a loss for Murrill.

The Republican Attorneys General Association in February endorsed Murrill’s bid for her boss’s seat. Alabama Attorney General Steve Marshall, the association’s chair, called her an “important voice in the conservative legal movement,” in a statement at the time of the endorsement.

“Liz Murrill has demonstrated time and again her willingness to fight for conservative values in the courtroom,” Marshall said. “Liz has no need to make empty promises about what she’ll do if elected — she can show you what she’s already done.”

If Murrill secures the attorney general role, she would continue her long history of government service.

Landry first hired her as director of his office’s civil division. Before that, she worked in state government and in the governor’s office, with stints in private practice and teaching. She served as an assistant law professor at her alma mater, Louisiana State University, where she received a bachelor’s degree in journalism and a law degree.

Murill also clerked for the late Judge Frank Polozola, who was appointed during the Carter administration to the U.S. District Court Court for the Middle District of Louisiana, as well as the late Judge Melvin Shortess of the Louisiana 1st Circuit Court of Appeals.

She served as a judicial fellow at the Supreme Court before obtaining a Master of Laws degree from Pepperdine University in 2010.

Louisiana has a nonpartisan primary, which means that the two attorney general candidates with the most votes in the state’s October primary will move on to the general election in November.

But even with her extensive record of government service, Murrill’s gender could make her race a bit tougher. Louisiana has a poor track record of electing women compared with the rest of the country, said Nichole Bauer, author of the book “The Qualifications Gap: Why Women Must Be Better Than Men To Win Political Office.”

Louisiana is in the bottom 10 states in terms of representing women in the state Legislature, said Bauer. Between 2015 and 2021, the state had no women in its congressional delegation, and only three women have ever represented Louisiana in Congress. The state has also only ever elected one woman as governor, Kathleen Blanco, a Democrat, who served nearly 20 years ago.

“Voters in Louisiana, they tend to oftentimes default to selecting men for political office,” said Bauer, an associate professor of political communication at Murrill’s alma mater, Louisiana State University.

If elected, Murrill would make history as the first woman to become Louisiana’s attorney general. Of the nation’s 50 state attorneys general, just 14 are women.

“No matter how experienced a woman is running for office, voters tend to doubt that she has the right experience,” said Bauer. “So women in general just have this extra bar they have to cross in order to show voters that, ‘Hey, I’m qualified.'”

Murrill’s opponents in the race, at least so far, are all men.

State Rep. John Stefanski, and prosecutor Marty Maley, both Republicans, are also seeking the attorney general seat, along with John Belton, a Louisiana district attorney running as an independent.

Political steppingstone

For the politically ambitious, a stint as a state’s top attorney can be a key step toward higher office.

While Murrill did not comment on her future plans, some observers said she could use a win this fall to propel her to a more prominent political office — or even a judgeship.

“It certainly hasn’t been a quiet two years with Republicans suing the Biden administration frequently in the last two years, but I expect these next two years will be even busier as these rules are finalized,” said Nollett. “She’ll be in the thick of that for sure.”

Landry isn’t the only state attorney general running for governor. West Virginia Attorney General Patrick Morrisey, another vocal Republican opponent of Biden administration policy, also recently announced his bid to be his state’s chief executive.

Other former attorneys general have landed in high places, most notably Vice President Kamala Harris, who served as California’s attorney general before she was a U.S. senator.

Scott Pruitt, Oklahoma’s former Republican attorney general, had a scandal-prone stint as EPA administrator under former President Donald Trump. Another former California attorney general, Xavier Becerra, a Democrat, is currently the secretary of Health and Human Services.

It’s unusual to see a solicitor general aiming for the attorney general position, Kalani said.

More often, she said, people in that role have gone on to serve as U.S. attorneys, or they get a judicial appointment.

In the meantime, Murrill said she has plenty of work to do as Louisiana’s solicitor general to stop the Biden administration from pursuing what she described as a transformational change across a variety of sectors.

State action to prevent huge social and economic consequences of federal regulation from agencies like EPA will be even more important in the coming years, Murrill said.

“Every time we think they have overstepped,” she said, “you will see us trying to pull them back.”