New attorneys general could affect EPA relationships with states

U.S. EPA's legal relationship with some states could change after several new attorneys general were elected last week.

At least one, West Virginia Republican Patrick Morrisey, has pledged to challenge EPA regulations. Another, Montana's Tim Fox (R), has talked about tackling federal government overreach.

In total, there were 10 contested attorney general races. In four states -- Oregon, Missouri, Vermont and North Carolina -- the seat stayed in Democratic hands, while the Republicans retained control in Utah and Indiana. In three, the position switched parties: from Democratic to Republican in West Virginia and Montana, and Republican to Democratic in Washington state.

Although the authority of attorneys general varies from state to state, they, in consultation with state environmental agencies and governors, generally have a big say in big legal decisions, such as whether to join challenges to national EPA regulations, said James Tierney, director of the National State Attorneys General Program at Columbia Law School.

Tierney, the former Democratic attorney general of Maine, noted that conflicts between attorneys general and governors' offices occur "every hour of every day" but can often be resolved through negotiation.

Of the newly elected crop of attorneys general, Morrisey of West Virginia -- a former Washington lawyer with high-profile firms King & Spalding and Sidley Austin -- has been most outspoken about EPA.

On his campaign website, one of his main proposals is to "eliminate trinkets and other wasteful items and use the resources to fund legal challenges that take on the EPA and other federal agencies that impose mandates on our citizens and prevent our children from obtaining gainful employment."

The Charleston Gazette reported that Morrisey, who defeated Democratic incumbent Darrell McGraw, said he wanted to "take on" EPA, especially over regulations that affect coal production, despite some questions about whether he would have the authority to file suit without the support of the governor, Earl Ray Tomblin (D). Morrisey could not be reached for comment.


Tierney noted that in West Virginia, an aggressive stance against EPA is "pretty mainstream" politically, so the election result might not make too much difference. West Virginia already has a history of battling EPA in the courts over certain coal-related issues. Most recently, it has supported Arch Coal Inc.'s fight over EPA's veto of a permit for a mountaintop removal mine in the state (Greenwire, Sept. 20).

Tierney pointed out that, as in most states, West Virginia would likely rely on free or highly discounted legal assistance from private law firms to pay for any legal challenges.

For cost-cutting measures to generate enough cash, there would have to be "an awful lot of trinkets," Tierney said.

Fox, Montana's new attorney general, replaced Democrat Steve Bullock, who successfully ran for governor. He has a lengthy legal resume, including stints with the Montana Board of Oil and Gas Conservation and the Montana Department of Environmental Quality.

As attorney general, Fox will serve on the Montana State Land Board, which has a key role in energy development.

On his campaign website, Fox said that "environmental extremists want to stop energy development here" but that he would work to ensure "responsible energy development."

His criticisms of federal government overreach have, however, tended to focus on the Affordable Care Act -- "Obamacare" -- rather than environmental regulations. Fox could not be reached for comment.

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