Coal Tattoo

Can W.Va. Attorney General really take on EPA?

November 12, 2012 by Ken Ward Jr.
There’s no question that “taking on” the Obama administration’s Environmental Protection Agency was a central campaign promise of Republican Attorney General-elect Patrick Morrisey. Anyone who followed the campaign knows that it’s one of the things Morrisey talked about over and over and over.

But all of a sudden, Morrisey and his handlers don’t much want to discuss whether they can really keep that promise, especially in light of new comments made late last week by Randy Huffman, secretary of the West Virginia Department of Environmental Protection. As we reported in the Saturday Gazette-Mail:

Department of Environmental Protection Secretary Randy Huffman isn’t so sure he wants Attorney General-elect Patrick Morrisey to start a new legal campaign against the U.S. Environmental Protection Agency.

Huffman said Friday that his agency has good lawyers already, and has brought successful litigation against new EPA coal-related initiatives that state officials thought were improper.

“We have very good legal representation, and I feel good about where we are,” Huffman said.

One of the central questions here is whether the state Attorney General has independent authority, absent a request from a client agency like WVDEP, to file any sort of legal action against a federal agency like U.S. EPA. Morrisey says it does, and he repeated that statement the day after the election on Hoppy Kercheval’s show. But when I asked the Morrisey camp for a response to what Randy Huffman said, spokesman Scott Will sent me this statement:

This is not the right time for a debate over the powers of the office, as Patrick has emphasized that he wants to work collaboratively with the Governor and the agencies to speak with one voice to protect the state’s interests.  Patrick is interested in meeting and working with the DEP and knows they have very talented people and are open to all good ideas to help our state.  Today, he spoke with the Governor who also expressed his interest in working together on problems facing our state. Patrick looks forward to meeting with the Governor next week, as believes he has been treated extremely well by the Governor and his Chief of Staff.

West Virginians want their political leaders to work together and Patrick is committed to that approach.  He doesn’t walk into a room starting out with the premise that he won’t reach agreement with someone on a particular matter.

I asked for a citation to language in the state Constitution, W.Va. Code or relevant case law to back up the notion that the Attorney General can independently challenge EPA rules, and this was the only on-the-record comment the Morrisey campaign offered:

Patrick’s reading of the Constitution and the case law is that the authority depends upon the factual circumstances. Once again, though, we will not be drawn into a debate about this when Patrick is seeking to work collaboratively with the Governor and the Legislature and wants West Virginia to speak with one voice when it challenges the federal government.

Attorney General Darrell V. McGraw gets a hug from his wife, state Superintendent of Schools Jorea Marple, after losing his re-election bid last week. Gazette photo by Lawrence Pierce.

What’s also not clear here is exactly what more the state needs to be doing to “take on” the EPA.  With legal representation from the Charleston firm Bailey and Glasser, the WVDEP has already succeeded — at least for now — in having a federal judge throw out EPA’s water quality guidance for mountaintop removal mining. The WVDEP also filed a “friend of the court” brief in support of Arch Coal’s so-far successful legal fight against EPA’s veto of the largest mountaintop removal permit in West Virginia history. And current Attorney General Darrell V. McGraw has already joined with other states (and industry groups) that are challenging EPA’s rule to reduce emissions of mercury and other air toxics from coal-fired power plants.

Now, the state did not join in the legal challenge to EPA’s greenhouse gas endangerment finding and the tailoring rule. But EPA won that case, so perhaps those who challenged it just didn’t have very good legal arguments. The state also did not join in challenging the latest version of an EPA cross-state air pollution rule, but it’s not like there weren’t plenty of other parties fighting EPA on that one.

WVDEP’s Randy Huffman certainly hasn’t been shy about fighting EPA , and Randy for one thinks the state has made good decisions in picking and choosing which cases to bring:

We’ve made conscious decisions as an agency and an administration on where we choose to pick a fight. We made our choices and we feel like they were good choices. We feel like we challenged what needed to be challenged.

Patrick Morrisey may not want to be drawn into a debate on all of this, but it seems unlikely that questions about it are going to go away … stay tuned.