Patrick Morrisey, West Virginia’s Republican attorney general, thinks he has a pretty good track record so far in knocking down greenhouse gas mandates in court.
The last time Democrats held the White House, Morrisey led more than two dozen states challenging President Barack Obama’s centerpiece climate regulation, the Clean Power Plan, that set first-time carbon controls for power plants. The rule would devastate West Virginia’s coal industry, the lifeblood of his state, Morrisey argued.
Morrisey and his allies scored a major victory. In a rare, out-of-turn move in early 2016, the Supreme Court put the Clean Power Plan on hold, before lower courts had even considered its legality.
The courts never did issue a judgment on the regulation. Later that year, Donald Trump was elected, and soon after he took office, the Environmental Protection Agency began to unwind the Clean Power Plan and replace it with much narrower carbon controls.
Now, Morrisey is preparing for a whole new set of courtroom battles against President Biden.
Morrisey expects he’ll be up against even stricter emissions mandates. He’s already looking, along with other Republican attorneys general, at options to challenge sweeping climate change executive actions Biden has taken in his first few weeks, including cancellation of the Keystone XL pipeline.
“The Biden administration is taking some of the ideas from President Obama and growing them on steroids,” Morrisey said in a recent interview with the Washington Examiner. “You see a very aggressive federal government that is focused on a particular ideology.”
Biden’s team is not shy about touting its climate agenda as the most aggressive of any presidential administration.
In a day-one executive order, Biden targeted more than 100 of the Trump administration’s environmental deregulatory moves for reversal. He also directed the EPA to set strict greenhouse gas controls for power plants, vehicle tailpipes, and oil and gas operations.
The Biden administration got a leg up from the D.C. Circuit Court of Appeals just before Inauguration Day, when judges struck down the Trump EPA’s weaker replacement carbon controls for power plants, essentially giving Biden’s team a clean slate.
Morrisey disagrees with that ruling, and he said he’s exploring legal options to address it, suggesting he and other GOP attorneys general could seek to appeal the decision.
“The stakes now couldn’t be higher because we know that Biden feels the need to use executive actions since the margins are so slim in the Senate,” Morrisey said. “That’s not an excuse for him to act, and we’re ready to stop him as needed.”
In fact, Morrisey and his GOP attorney general colleagues are trying to get out ahead of any strict climate mandates the Biden administration issues, in part to assure energy companies there isn’t a guarantee the regulations will stick.
Morrisey accused Obama administration officials of banking on their policies being enough of a threat to business that companies would spend money to install emissions controls, even if the policies were ultimately struck down in court.
Some of those same officials, including former EPA Administrator Gina McCarthy, are leading implementation of Biden’s climate agenda.
“That’s one of the reasons we’re speaking out early,” the West Virginia attorney general said. “We’re going to send a message to everyone in terms of the investment community, to the markets, that we ultimately are well-positioned to prevail on the law and that there shouldn’t be an expectation that this administration is going to win in court on many of the largest environmental challenges.”
On the day Biden signed his climate executive order, Morrisey led a letter with five other Republican attorneys general saying they will sue over “unauthorized and unlawful executive actions,” including “directing a wide swath of federal agencies to exceed their limited statutory mandates to implement the extreme ‘Green New Deal.’” Also signing the letter were the attorneys general of Arkansas, Indiana, Mississippi, Montana, and Texas.
Morrisey said he and other Republican attorneys general are already exploring legal options to challenge Biden’s cancellation of the Keystone pipeline, a 2,000-mile oil pipeline that would have run from Alberta in western Canada through to Texas. West Virginia would likely support states more directly affected by the pipeline shutdown, he said.
One development since the Obama administration that Morrisey sees in his favor is the more conservative makeup of the Supreme Court, where he expects the fights over the EPA’s authority to regulate greenhouse gases from power plants to end up.
It’s likely that Trump-appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will take a narrower view of how much authority the EPA has to control greenhouse gas emissions.
Morrisey said he’s already seeing signs from the court that have him “cautiously optimistic.”
He pointed to a ruling from a federal district court over the summer that revoked the use of a fast-track permit for all new oil and gas pipelines. Morrisey led a group of states in a friend of the court brief to the Supreme Court objecting to the move and asking for its quick reversal. The Supreme Court obliged, acting swiftly to allow pipeline developers to use the fast-track permit, he said.
“That’s part of the reason why we are cautiously optimistic that this court’s going to be fair and reasonable in how they use the statutes of the Constitution in some of these environmental challenges,” Morrisey added.
Overall, Morrisey said his courtroom battles are aimed to protect West Virginia’s jobs. He accused Biden officials, especially climate envoy John Kerry, of “arrogance” in suggesting coal miners could switch to jobs in the renewable energy industry.
“These jobs never materialize, and it’s a little bit like Marie Antoinette. ‘Let them eat cake,’” Morrisey said. “I think West Virginia has bristled from that.”
