Gazette photo by Kenny Kemp
If you missed the news Friday afternoon, West Virginia Attorney General Patrick Morrisey announced that he and Gov. Earl Ray Tomblin had filed a “friend of the court” brief asking the U.S. Supreme Court to take in a case that challenges the federal Environmental Protection Agency’s latest rulemaking on greenhouse gas emissions. AG Morrisey’s prepared statement said:
The amicus brief asking for a writ of certiorari was filed Thursday, May 23, and follows a ruling by the U.S. Court of Appeals for the District of Columbia in favor of the EPA in four consolidated cases. If allowed to stand, the D.C. Circuit’s ruling will fundamentally alter the Constitution’s separation of powers and grant unprecedented authority to the EPA and other federal agencies.
Significantly, the states contend the EPA’s “tailoring rule” contradicts explicit provisions of the Clean Air Act and establishes new compliance levels for greenhouse gas emissions that are significantly higher than the levels specified in the statute.
Now, make no mistake, what this case is really about it an all-out effort by conservative groups and some states to overturn the Supreme Court’s 2007 ruling in Massachusetts v. EPA that the federal agency has a duty to regulate greenhouse gas emissions. As a Reuters analysis explained:
The petitions give the court various options for cutting back on, or even overturning the 2007 ruling, according to John Dernbach, a law professor at Widener University in Pennsylvania, who represented climate scientists in the 2007 case.
If the court decides to hear any of the petitions, it “would be opening a really big can of worms,” he said.
In a Saturday Gazette-Mail print story, I got into one of the aspects of this whole issue that I find interesting:
Texas officials argue in their petition that the EPA was wrong when it issued a “tailoring rule” aimed at limiting its greenhouse gas rules for stationary pollution sources to only the largest industrial emitters. The petition says the move violated Clean Air Act thresholds that would have applied the rules to a far larger class of emitters.
The Texas petition argues that Massachusetts v. EPA should be overturned “in light of the absurd permitting burdens that follow from treating carbon dioxide as an air pollutant” and complying with the statute’s emissions thresholds.
When it upheld the EPA rules last year, the D.C. Circuit Court of Appeals commented that throwing out the agency’s effort to limit the scope of its rules would not really lessen the burden on industry.
“Far from it,” the court said. “If anything, vacature of the tailoring rule would significantly exacerbate petitioners’ injuries.”
Another thing to keep in mind, of course, is what AG Morrisey refuses to talk about. While holding himself out as a major statewide leader — someone focused on the future of the state and concerned about a wide variety of issues from job creation to drug abuse — our new attorney general won’t say if he accepts the broad and deep scientific consensus about climate change.
When I asked AG Morrisey about this via his Twitter feed on Friday, the attorney general responded:
They got the regs wrong – whether you agree or disagree with science, Congress, not the EPA, dictates law. An AG reviews the law.
I followed up:
What can the AG’s office do to help WV curb global warming? Or do you think it’s not a problem?
AG Morrisey didn’t answer (Though by at least acknowledging my first question via Twitter, AG Morrisey did more than most public officials, who see social media as a one-way discussion). It’s also interesting that he was tweeting about this issue — and promoting his office’s action — not through the official AG Office Twitter account, “WestVirginiaAG“, but through his campaign account, “MorriseyForAG“. Of course, you have to admit that AG Morrisey is doing exactly what he said he would do when he ran for office: Take on the EPA on behalf of West Virginia’s coal industry.
But now that AG Morrisey is trying to stop a federal agency from taking action to step the climate crisis, don’t West Virginians deserve to know where he stands on that crisis? Apparently not. He told Hoppy Kercheval this morning:
I’m not here today to talk about the back and forth or the science.
Maybe the fact that AG Morrisey thinks the question of whether climate change is occurring, is caused primarily by the burning of fossil fuels, and is something that urgently demands action is a “back and forth” gives us a little bit of an idea of where he’s coming from.
But speaking of Hoppy Kercheval, it’s certainly interesting to see how he’s twisted himself around in today’s commentary to try to have something to say about the attorney general’s action. Under the headline WV jumps in coal fight, Hoppy opines that this new legal action has little chance of success. Those justices just won’t see this one Hoppy’s way:
Then there is simply the larger issue of whether Congress, which wrote the Clean Air Act, ever envisioned it to deal with climate change. It did not, but so far the U.S. Supreme Court has seen it otherwise, and without a substantial change in the make-up of the court, it’s hard to imagine a different outcome.
Then, though, Hoppy makes a great point:
Meanwhile, the legal wrangling adds to the uncertainty of the coal industry and West Virginia’s economy. Coal companies and electric utilities have to make decisions based on what they believe the market will be like years from now, and it’s apparent that coal is in for a long, tough slog.
The continued legal efforts to block any EPA regulations to limit greenhouse gas emissions certainly adds to the uncertainty already faced by West Virginia’s coal industry. The more that the coal industry and its political supporters stall and delay, the further behind efforts fall at trying to find a way to make coal’s only chance to survive climate change regulations — carbon capture and storage, or CCS — actually work in a way that is safe, affordable, and able to be expanded industry-wide.
Remember that a broad spectrum of coal supporters in West Virginia, including American Electric Power and the United Mine Workers, thought that federal legislation to try to curb global warming was a good idea, especially if the bill contained a lot of incentives for CCS. Most of the coal industry and certainly its local political supporters opposed such a bill, though, and after it died AEP dropped its major CCS test project in Mason County — largely because such projects don’t make economic sense without rules that will eventually require reduced greenhouse emissions.
In its recently updated report on the coal production forecasts for Central Appalachia, Downstream Strategies explained again clearly the many challenges the industry faces in this region. The only response West Virginia leaders seem to have is to continue to blame it all on President Obama and EPA, and to add more uncertainty with more legal attacks on the federal government.