Thursday, January 17, 2019

West Virginia attorney general wants EPA to honor stay; stop advancing energy regulation

Over the past year, West Virginia Attorney General Patrick Morrisey has taken numerous steps to ensure the Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) does not get enforced.

Last month, Morrisey testified before the U.S. Senate Environment and Public Works Subcommittee that the CPP is illegal and should be re-evaluated. He also expressed concern over the economic impact the plan would have in West Virginia and other energy states.

Morrisey took an additional step to stop compliance efforts by 14 state environmental agency officials seeking additional information and technical assistance related to the CPP, by sending a letter to the EPA urging the agency to stop spending federal tax dollars on the power plan.

Morrisey told Environment & Energy Publishing (E&E) last month that the U.S. Supreme Court’s decision to stay the plan means just that.

“So stay means stay," he said. "It means stop work. It doesn't mean continue and try to advance a regulation that ultimately will be deemed unlawful in the courts. So we don't think it's an efficient use of taxpayer resources. I would also add that whenever the court rules, if we don't succeed, they're going to have to reset all the timelines anyway, so there's really no need to take action right now. I think this is just a backdoor way to try to continue to advance the Clean Power Plan in contravention of the stay.”

In February, 5 conservative Supreme Court justices, including the late Antonin Gregory Scalia, halted the EPA’s plan to combat global warming by enforcing a clean energy plan that would shift the country’s dependence on coal to renewable energy sources, resulting in carbon emission levels 32 percent lower than they were in 2005 by 2030.

The Supreme Court’s ruling came after 27 states sued to stop the EPA’s elaborate plan set to impose strict regulations on local governments, which the CPP has estimated to cost between $28 billion and $39 billion in 2030.  

The case was relegated to the D.C. Circuit Court of Appeals to determine the legality of the CPP. The arguments were originally scheduled to be heard this month but the court pushed the hearing date to Sept. 27.

Morrisey, who is among the dozens of state officials who have argued that EPA’s plan -- pushed by the Obama administration -- is a classic case of government overreach, said he is not worried about the case going before 5 Democratic judges, 3 of whom were appointed by President Obama.

“Well, we think that whoever hears this, we're hopeful will be responsive to our legal arguments that what's happening here is actually unprecedented, literally in our nation's history, and the EPA is going so far outside of its authority that, regardless of the political party that you may have come from, that people should still take our position,” he said.

Morrisey said that although a recent report by North American Electric Reliability Corporation (NERC) indicated that the country is shifting more toward renewable sources of energy, even without enforcement of the CPP, the main issue he has with the plan is that it is attempting to accelerate the change and undermine the importance of the coal industry.

“Yes, the marketplace was moving in a particular direction, but the regulatory directives that were coming down from the Obama administration really hastened a lot of the change, so I'm hopeful that as a result of obtaining a stay and ultimately defeating the power plan in court, that coal might have a little bit of a comeback,” he said. “And I'm not predicting that it's going to return back to its previous lofty heights, but that there's still an opportunity, an important role for coal in our energy system.”

With oral arguments over the CPP pushed back, parties involved in the case are considering what the delay and the surprising decision to have the case heard before the entire panel of judges (instead of a three-judge panel) means strategically.

Morrisey said he doesn’t believe the move will change his legal strategy but that the decision does indicate just how monumental the case is.

“We saw that the Supreme Court issued the unprecedented stay and that having the argument before the entire panel, I think means that everyone is paying close attention to it,” Morrisey said. “We're still going to make the same legal arguments that we've been making and that ultimately prove successful before the U.S. Supreme Court. So I don't know that there's a fundamental shift in terms of strategy, but we are looking forward to getting into court in September.”

Morrisey added that he is hopeful that prevailing in the case will send a message that there still is an important role for coal in our nation's energy future, which would translate to “many thousands of jobs to hardworking West Virginians and their families.”

Organizations in this Story

Senate Environment and Public Works U.S. Environmental Protection Agency (EPA) U.S. Supreme Court Virginia Attorney General's Office

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