WOTUS: Enviro-Groups file Motion to Intervene against WV Attorney General

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.

 

In letters to Lewisburg-based attorney William DePaulo, who is representing the environmental groups, neither the governor’s office nor the DEP stated such letters were sent to the Attorney General’s office.

 

"This is about who speaks for West Virginia and for West Virginians," said Janet Keating, executive director of the Ohio Valley Environmental Coalition. "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."

 

On Oct. 27, Gov. Earl Ray Tomblin issued a press statement announcing West Virginia would submit plans to comply with the Clean Power Plan. "While I believe there are significant questions regarding the legality of the Clean Power Plan, these new rules have been put into place by the federal regulatory agency. 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...," the release reads in part.

 

"Gov. Tomblin believes there are significant questions regarding the legality of the Clean Power Plan and supports the lawsuit filed by the Attorney General; however, he also believes it is important that the state do its due diligence to develop a proposal to submit to the EPA. Until a final legal decision has been made, the state cannot afford to ignore the rules put in place by the federal regulatory agency," the Governor’s Press Office said in a statement Monday.

 

Ten days earlier, the DEP put out an announcement seeking comments and information for a feasibility study related to the Clean Power Plan.

 

Morrisey’s October lawsuit is winding its way through the federal court system. In past statements, he predicted the EPA’s proposed rule will have "devastating effects on West Virginia’s jobs and its economy" by forcing some coal-fired plants to close and the federal government overreaching.

 

In reaction, Morrisey’s press secretary Curtis Johnson wrote to The Register-Herald Monday, "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 weaknesses of the EPA’s legal position, which would transform that agency from an environmental regulator into a central energy planning authority."

 

"Lawyers must always prepare for multiple outcomes — while we attack the legality of the rule, we continue to explore all ways to mitigate further damage from this regulation," he added.

 

The Clean Power Plan is designed to reduce carbon dioxide emissions. The plan requires states to develop a plan on how it intends to achieve the emissions reduction.

 

The environmental groups said Morrisey ultimately seeks to invalidate the regulations that carry out the Clean Power Plan. But currently, he seeks to prevent the regulations from going into effect while the case is pending in court.

 

DePaulo said West Virginia law reads 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.

 

In essence, he said, the 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, DePaulo said.

 

But that argument is not, precisely, what DePaulo is making to the U.S. Court of Appeals for the District of Columbia. "What I argue there — assuming the Attorney General can type up and file any brief he wants — is simply that he cannot invoke the jurisdiction of a federal court to vent his ideology."

 

Specifically, explained DePaulo, the jurisdiction of federal courts is limited by Article III of the U.S. Constitution to "cases and controversies." That is, legal matters in which parties involved have a real stake in the outcome.

 

If it wasn’t for "cases and controversies," he said, "filing a law suit in the name of the 'State of West Virginia' challenging extremely important federal regulations with which the specific officials of the state charged with responsibility for the subject matter have decided to comply. How, pray tell, is that in the name of the 'State of West Virginia?'"

 

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.