Inside the West Virginia attorney general’s plan to permanently end climate regulation

Patrick Morrisey doesn't just want to repeal the Clean Power Plan -- he wants to make sure it never comes back.

(CREDIT: AP Photo/John Raby)
(CREDIT: AP Photo/John Raby)

CHARLESTON, WEST VIRGINIA — On Tuesday afternoon outside of the West Virginia Capitol, state Attorney General Patrick Morrisey joined state lawmakers, coal miners, and energy industry representatives to celebrate. Wandering around the sun-drenched plaza, Morrisey — who has said he will run for Senate in 2018 — took time to work the crowd of about 50 people, shaking hands and introducing himself as the man who “put a stop to this whole thing.”

The thing Morrisey was talking about is the Clean Power Plan, the Obama administration’s signature piece of domestic climate regulation and the first-ever attempt to place limits on greenhouse gas emissions from coal-fired power plants. In 2015, Morrisey lead a coalition of 27 states to block the regulation from being put in place; the rule was later stayed by the Supreme Court pending litigation in lower courts. When Donald Trump was elected in 2016, that stay turned into a significant policy change, with the administration now working to officially repeal the rule altogether.

But Morrisey isn’t satisfied with just repealing the regulation. Now, he wants to make sure that, no matter which party takes Congress in 2018 or the White House in 2020, no similar regulation will ever see the light of day again.

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“There’s more work that needs to be done,” Morrisey said during a press conference on Tuesday. “We are going to put an end to this.”

In an interview with ThinkProgress, Morrisey outlined his steps for completely ending the Clean Power Plan, which will require victories on a number of fronts: through regulatory agencies, through the courts, and in Congress.

From a regulatory standpoint, the difficulty in preventing a Clean Power Plan alternative comes from the fact that the Environmental Protection Agency is required, by the Clean Air Act and a 2007 Supreme Court decision, to regulate carbon dioxide as a pollutant. So while repealing the Clean Power Plan is a step towards undoing previous regulation, some legal experts argue that for the agency to not replace the repealed rule with something else would open the agency up to legal challenges.

Morrisey wants to deal with this issue in two ways: first, he wants the EPA to issue a replacement rule that is much narrower in focus than the original rule. Such a rule would likely direct power plants to only make whatever modifications they could make to their particular plant, without requiring any changes to a regional or national energy portfolio. That rule could satisfy the EPA’s duty to regulate emissions, but would likely do little to cut down on carbon dioxide and slow global warming.

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We want to work to keep that breadth as narrow as possible, consistent with the law, and the Clean Air Act’s charge to have a cooperative system of federalism in our country,” Morrisey told ThinkProgress.

Second, Morrisey wants the EPA to take on its 2009 endangerment finding, which relied on extensive scientific review to label carbon dioxide as a threat to public health, and therefore something the agency could regulate under the Clean Air Act. The finding was created in response to the Supreme Court’s 2007 decision in Massachusetts vs. EPA, which found that the EPA could regulate carbon dioxide from mobile sources as long as the emissions were a threat to public health; it was from both that decision and the endangerment finding that the EPA began creating rules to limit emissions from stationary sources, like power plants, in 2010.

Ideally, Morrisey said he wants the endangerment finding completely reversed — a priority for numerous conservative climate science deniers in the wake of Trump’s election, but a move legal experts warn would be exceedingly difficult to justify in court. If the agency won’t completely reverse the endangerment finding, however, Morrisey thinks there is still a way to undermine its power: simply limit the finding to mobile sources and argue that the agency lacks authority to apply it more broadly.

“At a minimum I’d like to see the finding narrowed,” Morrisey said. “The scientific questions are going to be addressed, but there are also legal questions relating to the legal breadth of the endangerment finding — whether it applies only to mobile sources or if it can apply to stationary sources.”

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Morrisey also hopes Congress will work to pass legislation that would prevent the EPA, or another agency, from creating similar regulations in the future. That could mean passing a law that would prohibit the EPA from tackling greenhouse gas emissions, or something potentially more narrow in scope. If the EPA were legally prohibited from regulating greenhouse gas emissions, however, that could open fossil fuel companies up to litigation under federal common law, which is currently displaced by the EPA’s authority under the Clean Air Act.

When it comes to legal challenges, Morrisey also expects to spend some time fighting for repeal and narrow replacement of the Clean Power Plan in the courts, as the regulatory process moves forward and environmental and public health groups — as well as Democratic attorneys general — fight the Trump administration’s efforts to undermine greenhouse gas regulations.

Whatever method Morrisey pursues — and he claims that he will be working through all three paths — he’ll likely have a strong ally in EPA Administrator Scott Pruitt, who like Morrisey, started his relationship with the Clean Power Plan as a Republican attorney general challenging the regulation. Both Pruitt and Morrisey have worked with the Republican Attorneys General Association; a 2014 New York Times investigation revealed RAGA’s extremely close ties with the fossil fuel industry, with some attorneys general going so far as to submit pro-fossil fuel legislation drafted by the association.

Like Pruitt, Morrisey also casts doubt on the science behind human-caused climate change and the role of fossil fuels in hastening global warming. In an interview with CNBC, Pruitt said he does not believe carbon dioxide is the primary contributor to climate change. He has also repeatedly cast doubt on the scientific consensus that human activity is the primary cause of climate change.

Morrisey takes a similar approach, while arguing that the Obama administration’s climate regulations would have done little to help the problem regardless of its cause. It’s a similar argument to one made by Pruitt when the Trump administration announced its intention to withdraw from the Paris climate agreement — one that downplays the notion that many climate policies are devised to work in tandem to bring down emissions. While a particular regulation might individually do little to stop emissions, a slew of regulations, like the Clean Power Plan together with the EPA’s methane rule or the Paris climate agreement, could ostensibly move the trajectory of U.S. emissions downward.

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I think there are many factors involved in the evolution of the Earth’s temperature,” Morrisey said. “I will say this, the Obama administration’s power plan would have effectively done nothing to change the temperature of the planet, yet it wreaked absolute havoc on our country and our coal miners and their families. That is the kind of trade-off we can’t allow in our country.”