New Va. AG pulls out of Supreme Court climate case

By Lesley Clark | 01/20/2022 06:45 AM EST

Virginia has dropped out of a coalition of states urging the Supreme Court to find that EPA has broad authority to regulate power plant emissions.

Glenn Youngkin.

​Virginia Gov. Glenn Youngkin (R) is seen after swearing in his Cabinet on Saturday. His administration abruptly changed the state's position on a climate liability lawsuit yesterday. AP Photo/Steve Helber

Virginia has dropped out of a coalition of states urging the Supreme Court to find that EPA has broad authority to regulate power plant emissions.

Attorney General Jason Miyares (R), who took office over the weekend after Republicans swept the state in November, tweeted last night that he was “proud to announce Virginia is no longer participating in West Virginia v EPA.”

The tweet signaled Miyares’ rejection of his predecessor’s challenge to a lawsuit launched by coal companies and Republican-led states asking the high court to curb EPA’s authority. The Supreme Court last fall made the extraordinary move to take up the case, which focuses on a regulation that does not currently exist.


Arguments in the case are scheduled for Feb. 28.

West Virginia v. EPA, Miyares said in his tweet, “could devastate the coal industry and the thousands of jobs it supports in Southwest Virginia. Virginia is no longer anti-coal.”

State figures show the coal industry employed about 2,000 people in 2020.

Former Virginia Attorney General Mark Herring (D) had added his name in August to a brief filed by fellow Democratic state lawyers who argued in favor of a broad role for EPA in regulating emissions under the Clean Air Act.

But in a letter yesterday to the Supreme Court, Virginia Solicitor General Andrew Ferguson said that after the change of administration, the office has “reconsidered Virginia’s position in this case.”

Republicans have argued that EPA is constrained from carrying out rules like the Obama-era Clean Power Plan — which set sweeping carbon emissions reductions for existing power plants.

And Virginia “is now of the view” that federal law did not grant EPA authority to issue the Clean Power Plan, Ferguson wrote.

He cited last week’s Supreme Court order that blocked the Biden administration’s Covid-19 vaccine-or-test mandate for large employers, writing that the court “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance" — invoking a legal doctrine that is also at play in the EPA climate case (Greenwire, Jan. 14).

Virginia did not appear on the list of participants in a brief filed Tuesday by Democratic-led states and municipalities that argued Congress had clearly tasked EPA with regulating carbon emissions from existing power plants in partnership with states (Energywire, Jan. 19).

"There is also no dispute that EPA has experience and expertise in studying the harms of greenhouse-gas pollution and evaluating the best means of reducing that pollution from stationary sources," the officials wrote.

Miyares’ ‘shift in focus’

The move to take Virginia off the Supreme Court climate case is the first high-profile environmental decision for Miyares, who campaigned primarily on law and order issues, promising to get tough on crime.

Virginia environmental groups had endorsed Herring, who in 2020 filed suit against the Trump EPA over what the former attorney general said was the federal agency’s failure to protect the Chesapeake Bay.

Miyares, a member of Virginia’s General Assembly since 2016, voted against the Virginia Clean Economy Act, a 2020 law that established a mandatory standard for the state’s largest utilities of 100 percent clean electricity by no later than 2050.

“He’s been on the wrong side of basically every important fight at the General Assembly,” Lee Francis, deputy director of the Virginia League of Conservation Voters, told E&E News after the election. “He’s voted against climate change measures even though he represents one of the regions of the state most impacted by climate change.”

At a postelection press conference, Miyares pledged a “shift in focus” in the attorney general’s office, noting that Herring had bragged about turning it into a “progressive powerhouse.”

Miyares pledged to shift the office “back to more public safety and a law enforcement focus.”

This story also appears in Energywire.