Michigan Attorney General Dana Nessel is expected to file her controversial climate lawsuit “soon” – a timeline environmental activists pointed to in the fall and one her office signaled in early 2024 when issuing an RFP for outside counsel to support the case. In another controversial move by the Democratic AG, her office lobbied the state Supreme Court this month to hand the AG more power, reviving a battle that has long pitted trial lawyers against Michigan’s business community.
The question before the court is whether long-standing limits on the AG’s authority should be scrapped – specifically, two precedents, Smith and Liss, which prevent consumer deception lawsuits against licensed, regulated businesses. Clearing these guardrails would give the AG sweeping new power under the Michigan Consumer Protection Act (MCPA) and lay the legal foundation for the climate case she’s been preparing.
Although the request was framed as protecting Michiganders from everyday scams at places like used car dealerships, the context is hard to ignore. Activist groups and even the U.S. Department of Justice have pointed to Michigan as the next battleground for state-led climate litigation. It’s been nearly a year and a half since Nessel vowed to join the roster of left-wing attorneys general targeting the energy sector – her timing now suggests she may be waiting for the Court to greenlight the expanded authority she needs.
A Page Out of California’s Playbook
Nessel’s office argues that overturning Smith and Liss would help stop deceptive practices in areas like auto sales, home repairs, telecom services, and prescription drugs. But that same script was used in California when AG Rob Bonta was advocating for expanded power under AB136, legislation that has only been leveraged in high-profile litigation against fossil fuel companies. As he put it:
“Car dealers too often fail to honor advertised prices, tack on unnecessary add-on products, or engage in other deceptive practices. As attorneys general, we know these practices harm low-income consumers and we need more tools in the toolbox to address persistent unfair and deceptive practices in the auto sales industry.”
Nessel’s reliance on outside counsel also echoes the controversial path that played out in California, where the AG’s use of external law firms for climate cases prompted scrutiny over who is really driving the litigation. It is the same strategy that has powered cases across the country, forming a coordinated pipeline of lawsuits built around the same legal tactics and players.
Trial Lawyers Smell Opportunity, MI Businesses Raise Alarm
Unsurprisingly, the Michigan Association for Justice (MAJ) – the trial lawyers’ lobbying arm that profits from big-ticket litigation – endorsed Nessel’s power grab. Assistant Attorney General Darrin Fowler even ceded part of his oral arguments to MAJ before the Michigan Supreme Court, where they cited California as the model state for consumer protection lawsuits. Michigan State Senator Singh, author of the stalled, Nessel-backed legislative version of this MCPA expansion (SB 134), quickly cheered from the sidelines. So, if state lawmakers won’t hand over the authority, the AG’s office is now asking the courts to do it.
Michigan businesses, on the other hand, are fiercely defending the decades of precedent. In amicus briefs, leading business groups warned that overturning Smith and Liss would have wide-reaching economic consequences and inject significant legal uncertainty into every regulated industry in the state.
The Michigan Chamber of Commerce put it simply:
“Layering on another level of lawsuits does little to protect consumers and much to burden Michigan businesses – all while lining the pockets of lawyers on both sides of the dispute.”
This legal unpredictability threatens investment, job creation, and the stability of industries central to Michigan’s economy. It’s especially concerning at a moment when the state is poised to become a leader in advanced manufacturing, digital infrastructure, and innovation. These things depend on stable, affordable energy and a predictable regulatory environment, of which litigation threats pose the opposite.
A Familiar Campaign With a Losing Record
Activist groups have been spinning this litigation web in states for over a decade, and in Michigan pretty much since Dana Nessel took the helm as Attorney General in 2019.
From New York to Puerto Rico, the Rockefeller’s network of activists have targeted Democratic attorneys general and left leaning states for these cases due to favorable legal systems. Early architects of the campaign targeted NY AG Eric Schneiderman because of New York state’s Martin Act, one of the broadest consumer-fraud statutes in the country. But that case still failed miserably.
Under Nessel, Michigan risks becoming the next testing ground in this losing campaign. It’s already burned through tons of the state’s time, money, and resources with absolutely zero meaningful outcomes for consumers, Michigan’s economy, or its environment.
Bottom Line: Nessel’s attempt to rewrite the rules (one way or another) should be concerning for all Michiganders. Overturning Smith and Liss would hand her — and other AGs to follow — broad new powers to pursue litigation that has flopped in courts across the country. Given the poor track record of similar cases nationwide, Michigan must consider whether expanding AG power through the courts helps the state or exposes it to unnecessary legal and economic risk.
