W.Va. AG Morrisey talks possible run for governor, EPA 'power grab' on Clean Power Plan

Could last month's hearing before the U.S. Court of Appeals for the District of Columbia Circuit on U.S. EPA's Clean Power Plan and weekly congressional hearings on the proposal slow the agency's pace on rolling out a final rule? During today's OnPoint, West Virginia Attorney General Patrick Morrisey (R) discusses his strategy for challenging the agency prior to a final rulemaking and weighs in on recent research citing public health benefits of the Clean Power Plan. He also says he is keeping his "options open" on a possible 2016 gubernatorial bid.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is West Virginia Attorney General Patrick Morrisey. Attorney General Morrisey, thank you for joining me.

Patrick Morrisey: Hey, it's great to be here, Monica. Thank you.

Monica Trauzzi: So you testified this week before a Senate EPW subpanel and last month argued before the D.C. Circuit Court in the first case against EPA's Clean Power Plan. This all comes as new research is released by Syracuse University and Harvard University citing the public health benefits of the Clean Power Plan. What weight do you give public health, West Virginians' health, as you make your calculations on the Clean Power Plan?

Patrick Morrisey: Well, of course, public health is very important to the citizens of West Virginia. We care passionately about clean air and clean water, but my concern has been that this administration has been advancing a radical, illegal proposal, which is going to have a lot of negative effects from a job perspective. It will cause electricity prices to rise, and also put the reliability of the power grid at risk, all under the guise of this very tenuous legal authority. They're trying to do something that's never been done before because they're regulating literally so many different types of energy sources in order to try to advance their goals.

Monica Trauzzi: Do you believe that coal-fired power emissions are contributing to climate change?

Patrick Morrisey: Well, I think that coal-fired power plants and that debate is a very important one. I'm the chief legal officer for the state of West Virginia, so I try to focus on when the administration violates the rule of law. And I think that's an important debate that Congress needs to have, but what's happened here is that the EPA has stepped forward, and they've issued this sweeping rule, I think without specific legislative authority. That's a real problem.

Monica Trauzzi: But they have the authority to regulate emissions if there's a negative public health impact, which is what is happening here.

Patrick Morrisey: So I think what many people point to, they look at Massachusetts v. EPA, the Supreme Court case that talked about the ability to regulate carbon dioxide. So we're not going to quarrel with the specifics of that case. What we actually say is that, even if you have the general authority to regulate in a particular area, you have to cite very specific statutory authority, and what they've done here is that they've tried to bootstrap this little typo, a technical error, in order to move forward with the sweeping regulation. There are ways, legally, that they might be able to regulate in this space. They're just not doing it.

Monica Trauzzi: You have called this an unlawful power grab. EPA is giving a great deal of authority and flexibility to the states by allowing picking and choosing and various building blocks. There are strong indications that in the final rule, the agency will even allow further flexibility for the states. So where's that power grab happening?

Patrick Morrisey: Well, a couple things. First, whenever you issue a proposal has to be done so in a lawful manner, and for the first time ever, the EPA is now trying to not only regulate the specifics of coal-fired power plants, they have these four building blocks and they're trying to move away from coal and move toward oil and natural gas. They're also trying to increase the amount of renewables and put particulars on consumers' energy demand. I think that's not in the Clean Air Act. That's why we think that this proposal is unlawful and it's really sweeping. That's why we've stepped out to oppose it.

Monica Trauzzi: How much of your work as AG is focused on blocking the Clean Power Plan?

Patrick Morrisey: It's a very important issue for the state of West Virginia, and I actually think it's really critical for the country as a whole. When you start to look at what's going to happen under this Clean Power Plan, I don't think it's -- you can really make an argument that ratepayers ultimately won't pay as you're forced to construct broad new power plants across the country. The issue here is that you have a lot of coal plants that will be retiring over the course of the next 20 to 30 years. This is going to dramatically accelerate the retiring of those plants. That has to be absorbed somewhere, so when people talk about the economic benefits of this, I don't think they're clearly focusing on what happens, at least in a lot of the states that are going to get forced to migrate over long before they would have to. And West Virginia has invested a great deal in scrubbers and in coal-fired power plants that are environmentally sensitive.

Monica Trauzzi: But there is this debate happening between states on whether this is economically viable, whether it will have reliability challenges. In terms of emission rate reduction, the proposed rate for West Virginia is just under 20 percent in the draft proposal, and that's lower than the reductions proposed in many states where we hear state leaders say that they can comply and that they don't think that there will be reliability challenges. So how can you -- how do you account for that disconnect?

Patrick Morrisey: A couple different things. As many people know who watch your show, West Virginia's the second-largest producer of coal. So we're much more heavily dependent on coal than most other states in the country. And so we're starting at a much higher base. So if you suggest that we have to cut 21 percent, that's going to be exceedingly difficult when you have over 90 percent of your electricity needs derived from coal. So that's one starting point, but the broader point that I'd like to make is that, if you look nationally, 40 percent of the nation's energy is still powered through coal. So to the extent that this proposal would -- were to go forward and you would see dramatic decreases in the production and the use of coal, that could have a very significant effect on reliability because the coal of West Virginia not only powers our state, it helps power the rest of the country as well.

Monica Trauzzi: I want to rewind to last month's D.C. Circuit Court arguments on the power plan. The judges questioned the precedent for halting a rulemaking while the agency is still working on the rule. And the court seemed to indicate that the challenge was premature. So is your goal to attempt to slow the pace of the rollout of the power plan?

Patrick Morrisey: Well, our goal is to stop the plan because we think it's illegal, and we think that if you look at the way this proposal is designed, it's causing harm right now. That's why we took the admittedly unusual step of filing a lawsuit while the proposal was in a proposed stage as opposed to a final rule. We talked to a lot of the states that are part of our coalition. We had experienced environmental regulators say that the harm is happening now. States have to actually prepare their plans now, and we know that the market is moving. If you look at Wall Street and if you look at what's happening to the coal industry, people are very deeply concerned. So that's why we thought it was appropriate for the court to step in in this particular circumstance, even though we know it's unusual. We would also note that the legal gymnastics that the EPA is using are incredibly unusual, and that's yet another reason why we think it's warranted for the court to step in now.

Monica Trauzzi: So if there's a stay rather than the rule being struck down, is that something that would work?

Patrick Morrisey: Well, we're certainly open to a stay as they wrestle with all of these issues because we know that it's a complicated rule. Now, we would like for the rule to get set aside because I think that the energy industry and people crave certainty, and so long as you have this proposed rule as an overhang, even if it's a stay, that's a real problem. But clearly a stay would send a message to people, we're going to take the time, we're going to make sure we do this right, and we're going to do it in a lawful manner.

Monica Trauzzi: We're obviously expecting further legal challenges and from your state. As the final rule comes out, is this the panel of judges you'd like to see in future challenges?

Patrick Morrisey: Well, we have great respect for the panel that we went before just a few weeks ago, so we don't always get to pick who we argue before, but we have a lot of respect for those judges, and obviously we'll have respect for any of the jurists that we appear before because I think this is going to be a very long process. I can't predict at any given time who we will appear before, but we obviously are going to do our best job whenever we're making our arguments.

Monica Trauzzi: What is your state's plan in terms of submitting a compliance mechanism, and what is the legal viability of the Just Say No option?

Patrick Morrisey: Well, a couple things. One, our state Legislature this year decided that it wanted to take a closer look at ultimately what might get submitted to the EPA. So now the Legislature gets to have input before something ultimately gets submitted to EPA. In West Virginia, we're taking a close look at the lawsuits, and obviously we have our lawsuit. We have the 112 suit that's pending now, the MATS rule, and then later this summer, the administration's talking about issuing a federal implementation plan, which really could have a very negative effect on states and could arguably be commandeering on states. There's some potential constitutional vulnerabilities with that approach. We don't want to make a decision premature. We want to evaluate this and see all the developments occur and then we can make a thoughtful approach. Obviously it would be much better if the administration were to withdraw the rule now, but we recognize that that's not likely to happen.

Monica Trauzzi: Right, and so if the FIP is not a viable option, then the state should compare its own compliance mechanism.

Patrick Morrisey: Well, we're certainly going to look at all the options and what's a better pathway, but it's certainly not right if the federal government designs a FIP which commandeers states' traditional police power. That's not legal, and that could cause a host of additional legal challenges, but I think it's premature to talk much about the FIP until we actually see it.

Monica Trauzzi: A politics question for you. Do you have plans to run for governor?

Patrick Morrisey: Well, we're certainly examining all of our options and evaluating whether I can continue serving the people of the state of West Virginia as attorney general or would I be better off serving in a different capacity. I love being the state attorney general. Every day you can do something good. I think a lot of the work we're doing, fighting federal overreach against the EPA, that's really important for our state. It's important for the country as a whole.

Monica Trauzzi: So it's a maybe.

Patrick Morrisey: Well, we're certainly looking at it. We're keeping our options open.

Monica Trauzzi: All right. We'll end it there. Thank you so much for coming on the show.

Patrick Morrisey: Thank you so much.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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