Taking the EPA to Court
West Virginia is in a battle for its life. For several years, the ability of the Mountain State and other Appalachian states to mine and use coal has been steadily eroded by the Obama administration and its Environmental Protection Agency.
This is a critical moment for all West Virginians. Time and again, the executive branch has stepped well beyond its bounds. We all learned in school that Congress passes bills, which are then signed into law by the president. But this president and his EPA are bypassing Congress with rules that attempt to change or simply ignore the laws. That is why our office has focused like a laser beam on everything EPA-related coming out of Washington, D.C.
As soon as we entered office, we reviewed all pending litigation filed by state attorneys general throughout the U.S. against the EPA to identify where we needed to be involved. And do we ever. Our office has engaged the EPA on many fronts to stand up for the rule of law and protect West Virginia jobs.
Fortunately, we are not alone. We are cooperating with attorneys general across the country and, together with the governor and West Virginia state agencies, are ensuring that the state speaks with one voice.
When this office joins with the governor or builds a coalition of five, 10 or even 15 states, we greatly amplify the effect of our efforts.
We are committed to fighting federal overreach and will use every tool at our disposal, whether in a court of law or public opinion. By year end, West Virginia will likely be a party or an amicus (a “friend of the court”) in at least six cases challenging EPA regulations. But that is not all. Over the past few months, this office has collaborated with the West Virginia Department of Environmental Protection on several regulatory matters, authored or joined numerous letters to the EPA, and worked on two white papers addressing the EPA’s statutory authority over power plants.
Unfortunately, there has been no shortage of issues when it comes to the EPA. One of the biggest cases in the state related to EPA is National Mining Association v. McCarthy, a case initially filed in 2010 and currently in the federal appeals court in Washington, D.C. Last month, our office and the DEP joined with the Commonwealth of Kentucky and the city of Pikeville, Ky., in defending a federal district court’s rejection of several efforts by the EPA to expand its authority over mining operations in Appalachia. We support the lower court’s conclusion that the EPA has attempted to take for itself responsibilities reserved to the states and even to other federal agencies.
And thankfully, we have been supported by many others, including Alabama and 10 other states, as well as the U.S. Chamber of Commerce and a number of industry groups, who all filed amicus briefs.
Another critical case to West Virginia is Mingo Logan Coal Co. v. EPA. This case involves the EPA’s widely reported attempt to revoke a federal water permit for the Spruce No. 1 Mine years after the permit was issued The coal company challenged the EPA’s late-coming “veto,” and it won. The EPA appealed the ruling, and the appellate court sided with the agency.
Now it is up to Mingo Logan Coal Company to decide whether to seek review in the U.S. Supreme Court. If they do, we will be right beside them.
One more case that is more national in scope concerns the EPA’s effort to regulate carbon dioxide as a pollutant. We have joined an amicus brief urging the U.S. Supreme Court to review the EPA’s so-called Tailoring Rule, which we believe flatly contradicts clear language in the Clean Air Act. If the lower court’s ruling is allowed to stand, it will grant unprecedented authority to the EPA and other federal agencies.
The EPA has been running roughshod over West Virginia since the beginning of President Obama’s tenure. That agency won’t always be easy to defeat since it carries the president’s support. But we are committed to the rule of law and preserving West Virginia’s future.
With a lot of hard work, a unified West Virginia voice, and cooperation with other states, we may at least be able to gum up the EPA’s plans for a while and live to fight another day. And rest assured, we will always do our part to stop the EPA from hurting our state – protecting West Virginia jobs and ensuring federal government agencies do not exceed their mission.
Patrick Morrisey is the attorney general of West Virginia.