Energy & Environment

Coal Country’s top lawyer takes on Obama’s EPA

Devin Henry
Patrick Morrisey led something of a victory rally the day after the Supreme Court shocked Washington and the energy industry by pausing President Obama’s landmark climate rule for power plants.

Morrisey, West Virginia’s attorney general, has led a coalition of 27 states and a host of industry groups in their fight against new limits on carbon emissions, arguing that defeating the rule was the only way to stop the hemorrhaging of coal jobs in his adopted state.

{mosads}“We know that the devastation has already occurred in West Virginia. Things are not going to change overnight,” said Morrisey, a Republican, flanked by miners and representatives of the coal industry in a book-lined conference room at the state Capitol.

“But we have an opportunity to have a comeback now. This is the decision we’ve been waiting for, and now we get to move forward and try to put people back to work.”

Morrisey, a 48-year-old New Jersey native who speaks with an easy, lawyerly confidence, filed a string of lawsuits that have made him a thorn in the side of Obama’s Environmental Protection Agency.

With the president able to veto their legislative efforts, Republican lawmakers are powerless to stop the rules, Rep. David McKinley (R-W.Va.) said. That means the fight must happen in the courts, where Morrisey is making his name.

“For Patrick to pick it up and take some initiative — that’s what we needed from the state level,” he said. “We understand. It’s going to rely on the court system to be able to block it.”

The legal maneuvering has won compliments from supporters, and even a few opponents, though some still doubt whether Morrisey’s laserlike focus on disrupting the Environmental Protection Agency’s regulatory agenda can do anything to reverse the decline of coal as a top U.S. energy source.

“The level of discourse in this state is ‘blame it all on the EPA,’ and Morrisey feeds into that,” said West Virginia University environmental law professor James Van Nostrand, who supports the carbon emissions rule and has lectured about it around the state.

“But I don’t dispute there are valid legal arguments to be made, and he’s doing a good job of making them and doing a good job of organizing the coal-dependent states.”

Morrisey’s path to West Virginia began in 2000 after an unsuccessful campaign for Congress in New Jersey, where he lost a GOP primary.

He landed in Washington, serving as the top healthcare counsel for the House Energy and Commerce Committee and helping craft Medicare Part D before joining a private practice.

After moving to Harper’s Ferry, W.Va., he managed to upset five-term Attorney General Darrell McGraw in the 2012 election. He is the first Republican to hold the seat since 1933.

Morrisey rode Obama’s unpopularity in the Mountain State into office, saying West Virginians were looking for an attorney general more willing to combat the president in court. Right away, he turned his attention to the EPA.

“Focusing on environmental regulation is very critical for the office because the stakes are very high for West Virginia” he said in an interview in his Charleston office.

“We’re an energy-rich state, the second-biggest producer of coal in the country; we’re one of the largest producers of natural gas. There’s a reason why we’re zeroing on these issues. It’s because there’s tremendous impact on West Virginia families with these regulations.”

Morrisey’s political opponents say he’s ambitious, with eyes on an office higher than the attorney general’s. He considered running for governor this year but passed it up for state Senate President Bill Cole to make a bid. Chris Regan, vice chairman of the state Democratic Party, said he thinks Morrisey could challenge Sen. Joe Manchin (D) in 2018. 

“One thing I would never question about Patrick Morrisey is his ambition and also his desire to get back to Washington,” he said.

For now, Morrisey is sidestepping questions about his political future. He said his sights are firmly set on battling the EPA, and he’s optimistic he’ll prevail when he gets his day in court.

“If you have just a little bit of smarts, some good judgment and you outwork your opponent, you can accomplish an enormous amount,” he said.

Morrisey’s top target today is the Clean Power Plan, a rule designed to slash emissions of carbon dioxide by the power sector by 32 percent from 2005 levels by 2030. The rule is the centerpiece of Obama’s climate change agenda, and opponents say it is likely to result in less coal use — and fewer coal-related jobs — in the United States.

“We have always believed that what the EPA is trying to do here is radical and unprecedented, and they’re trying to transform the agency from serving as an environmental regulator and becoming a central energy planning authority,” Morissey said. “It’s the job of the attorney general of West Virginia to fight that type of federal overreach.”

Morrisey’s coalition of states aggressively sued to halt the Clean Power Plan, even asking federal courts to delay the rule before it was finalized or published in the Federal Register.

They argue the EPA is overstepping its authority under the Clean Air Act by issuing regulations that broadly affect state economies and imposing new rules on power plants that are already regulated.

Those charges helped secure a surprising order to delay the rule by the Supreme Court in February. Never before had the high court stepped in to block regulations when a lower court had denied a similar request, or before any court had heard arguments against the rule on its merits.

“He was very aggressive in bringing the early rounds of the litigation and trying to get a court order to stop EPA from even finalizing the rule,” said Jeff Holmstead, a former EPA air regulator who is representing a coal industry group in the lawsuit. “He really has taken very much a leading role in the Clean Power Plan litigation.”

Green groups and environmentalists have largely dismissed Morrisey’s legal arguments. More broadly, they say his fight to save coal is misguided, arguing that coal’s decline is more closely tied to market forces like cheaper natural gas than federal regulations.

“Even if we win, I don’t think we win,” said Democrat Jeff Kessler, the minority leader in the state Senate and a gubernatorial candidate. “That’s the problem. If we win, gas is still going to be cheaper than coal.”

William DePaulo, a longtime West Virginia environmental lawyer, said Morrisey is looking out for coal companies’ bottom lines more than he is advocating for the state or mine workers. Gov. Earl Ray Tomblin (D) has said his state should comply with the Clean Power Plan and that stopping the rule in court won’t be a magic bullet for West Virginia.

“Are regulations important? Yes,” DePaulo said. But “the idea that the regulations are what’s breaking the back of the coal industry is simply a fantasy.” 

Morrisey said he knows winning his legal fight won’t solve all of coal country’s problems.

“The patient has lost a lot of blood,” he said. “And if we can patch things up so we can begin to see a comeback — and if coal can come back to some degree, maybe not reaching its previous lofty heights, but still coming back in a way that creates thousands of jobs for West Virginia — how can that not be a really good thing?”

Tags David McKinley Future of Energy Joe Manchin
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