By Peggy Mackenzie
West Virginia Attorney General Patrick Morrisey has been accused of overstepping his authority when he sued the Environmental Protection Agency over its Clean Power Plan earlier this year, according to legal papers filed on behalf of several environmental groups.
The Motion to Intervene states the attorney general has no role in the state’s decision-making process concerning the Clean Power Plan. The groups claim Morrisey ultimately seeks to invalidate the regulations that carry out the Clean Power Plan. Currently, he is seeking to prevent the regulations from going into effect while the case is pending in court.
The group’s legal challenge states, under West Virginia law, the governor is required to prepare a proposed State Implementation Plan with the help of the state’s Department of Environmental Protection, which is then submitted to the Legislature for review and finally sent to the EPA.
The Clean Power Plan, designed to reduce carbon dioxide emissions, requires states to develop a plan on how they intend to achieve the emissions reduction.
State law, according to the Motion to Intervene, states the governor or the DEP may request, in writing, legal representation in order to commence litigation, but neither the governor’s office nor the DEP stated such letters were sent to the attorney general’s office.
In Governor Earl Ray Tomblin’s press statement, issued on Oct. 27, he said there are significant questions regarding the legality of the Clean Power Plan, but,”until a final legal decision has been made, we cannot afford to ignore them. If we do not submit a plan, our state may be required to implement a plan designed by the EPA.”
Lewisburg attorney William DePaulo, who is representing the environmental groups, stated, “The attorney general considers this a blank check. The alternative argument is that, absent a specific grant of authority, the attorney general can’t just run off and sue when he feels like it.”
DePaulo’s argument is that under the explicit terms of the Clean Power Plan, the governor has the sole responsibility to file a State Implementation Plan. Neither federal law nor state law accords the attorney general any authority over that subject matter.
In response, Morrisey’s press secretary Curtis Johnson gave a statement to the press, stating, “The attorney general’s authority to speak on behalf of the state’s legal interests is well-established by the state’s constitution, statutes and case law, specifically McGraw v. Burton. This motion is simply trying to distract attention away from the weakness of the EPA’s legal position, which would transform that agency from an environmental regulator into a central energy planning authority.”
DePaulo said West Virginia law reads that the attorney general shall appear as state counsel in all causes pending in the supreme court of appeals, or in any federal court, in which the state is interested, but provides no express authority for the AG to make a determination – in a case not already pending – to commence litigation.
“The attorney general considers this a blank check. The alternative argument is that, absent a specific grant of authority, the attorney general can’t just run off and sue when he feels like it,” said DePaulo.
Janet Keating, executive director of the Ohio Valley Environmental Coalition, clarifies the issue with the statement: “This is about who speaks for West Virginia and for West Virginians. Mr. Morrisey presumes to speak for the state and for all of us. His opinion may be that there is a war on coal and that all West Virginians should resist. This is not true. Climate change is a serious problem and we all have to do our part in addressing it.”
The West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, Coal River Mountain Watch, Kanawha Forest Coalition, the Mon Valley Clean Air Coalition and Keepers of the Mountains Foundation filed the Motion to Intervene.
