Coal-state AG urges halt to work during court battles

By Emily Holden | 05/24/2016 09:01 AM EDT

The West Virginia attorney general leading the charge against U.S. EPA’s Clean Power Plan wants the agency to stop fulfilling requests for information from states and companies while a Supreme Court stay on the rule is in place.

The West Virginia attorney general leading the charge against U.S. EPA’s Clean Power Plan wants the agency to stop fulfilling requests for information from states and companies while a Supreme Court stay on the rule is in place.

But in an exclusive interview with ClimateWire, Patrick Morrisey (R) stopped short of calling EPA’s continued work on the greenhouse gas regulation illegal.

"We’re very concerned about the EPA using this technical assistance in order to advance their agenda," Morrisey said after an event at the National Press Club. "We recognize that there are different views of what the stay means, but traditional law would suggest that you should put your pencils down."


Even if lawsuits from 27 states and numerous industry groups fail, EPA will still have to reset all its deadlines, Morrisey argued.

"I’m hopeful that most people will hold and stop working so that this has a chance to be defeated in the courts," he said.

At least 14 states have directly asked EPA to finalize its model carbon-trading rules, and Morrisey recently sent a letter to EPA disagreeing with that request.

Other groups that include states opposed to the Clean Power Plan have also said those guidelines would be helpful. Utilities against the rule have chimed in with questions, too (Power Plays, May 16).

Morrisey is confident the legal challenge could succeed at the Supreme Court, but he argued that a new president might rescind the power-sector greenhouse gas regulation even before then. That could give coal the "boost" it needs in West Virginia, he said.

A better outlook for challengers?

The U.S. Court of Appeals for the District of Columbia Circuit recently decided to skip the initial three-judge review of the rule and move directly to oral arguments in front of all the circuit’s participating judges (Greenwire, May 17).

Patrick Morrisey
West Virginia Attorney General Patrick Morrisey (R). | Photo courtesy of the Office of the West Virginia Attorney General.

That’s a good development for his side, Morrisey said, noting that "we’ve always said that we think our odds get better as we go further in the process."

"We recognize that there’s a history with a lot of judges," Morrisey said, referring to the makeup of the court. Five of the nine judges likely to consider the case were appointed by Democrats. "But we believe that our arguments are strong, and we’re cautiously optimistic that we can prevail at the D.C. level."

At the crux of the challengers’ legal argument against the Clean Power Plan is whether EPA is overreaching its authority to regulate greenhouse gas emissions from power plants.

EPA would allow states to craft their own plans for reducing emissions, including by ramping up lower-emitting natural-gas-fired power and renewable energy.

"At its core, what it’s doing is unlawful because it’s trying to regulate outside the source, and it’s never done that before," Morrisey said.

He also plans to present arguments that the law prevents EPA from regulating carbon from coal plants under Section 111(d) of the Clean Air Act because it has already restricted pollutants from coal plants under another section of law.

Critics say Congress never gave EPA the power to implement such a wide-reaching system for reducing emissions. They say, if anything, EPA should only be able to demand that coal plants run more efficiently and produce less carbon.

"This is an area that should have been left to Congress," Morrisey said, adding that he thinks EPA is trying to "graft" failed cap-and-trade legislation from 2010 onto the current regulation.

"I think it would be much better if Congress were to have a debate and there could be some resolution of that from a policy perspective," he said, noting that may or may not happen depending on who is the new president and which party controls the Senate and House.

Pointing the finger for coal’s demise

During the event at the National Press Club, Morrisey argued that the coal industry could rebound some in West Virginia if the Clean Power Plan were reversed.

"I think it would lead to more coal jobs," he said. "It’s difficult to predict what the number will be."

He acknowledged that the "cause of coal’s decline is multifaceted" but said environmental regulations have played an important role.

But during the panel discussion, Christine Tezak, a managing director of research at consulting firm ClearView Energy Partners LLC, noted that the power industry is moving toward cleaner fuels regardless of the regulation.

"We see this not so much as a matter of direction as much as a matter of pace," Tezak said.

She added that "a lot of investments in the energy sector … could be shaped by the outcome of the election as much, if not more, than the outcome of this particular case."

While many states oppose the regulation, many are also enthusiastic about reducing carbon dioxide emissions, Tezak said. And coal-heavy power companies have said they see carbon reduction as an inevitability, too.

During the event, Morrisey twice avoided saying whether he believes humans are causing climate change.

"I have been very clear throughout these legal proceedings that my focus is to serve as the chief legal officer of the state of West Virginia," he said. "I’m not going to get into the middle of a policy debate that’s best left for Congress."

He added that he is passionate about advancing clean air and clean water but did not want to distract from the issue at hand — whether the Clean Power Plan is legal.

Morrisey has said he ran for attorney general in 2012 to combat overregulation. He has been involved in lawsuits against the New Source Performance Standards for coal plants, water regulations and the Obama administration’s executive order on immigration.

Critics have said Morrisey, originally from New York, is an outsider in the state and is using the position to further his career goals (Greenwire, May 4).

But he said the Clean Power Plan challenge is not about his broader feelings about regulation or politics but about the "rule of law."

"We only take action when we think the administration has stepped over the line," Morrisey said.

‘Bullying’ fossil fuel companies

Morrisey sees protecting the companies that will be affected by federal regulations as a key part of his position.

"It’s my job as the attorney general to assure that job producers are not bullied," he said, in response to questions about state attorneys general who are investigating allegations that oil and gas company Exxon Mobil Corp. misled the public and shareholders about the risks of climate change.

He called the effort a "broadside against the fossil fuel industry" but did not say whether he would join attorneys general siding with Exxon.

"In West Virginia, we’re heavily dependent on coal and oil and natural gas," he said. "We certainly don’t want to have any chilling affect on an individual’s speech."

Asked whether he must balance the legal interests of companies versus the interests of West Virginians, Morrisey said the Clean Power Plan lawsuit is "entirely consistent" with the interests of people in the state.

He said job creators in the state are being "unfairly targeted" because they produce fossil fuels.

"It’s up to an attorney general to step up and to defend the citizens of our state from those kinds of attacks," Morrisey said.

This story also appears in EnergyWire.