‘Ready to Go’: West Virginia AG Morrisey talks EPA lawsuit, vaccine mandates

West Virginia Attorney General Patrick Morrisey, left, looks on as Chris Hamilton, president of the West Virginia Coal Association, expresses his support for a lawsuit filed against the Environmental Protection Agency. (Photo by Steven Allen Adams)

CHARLESTON — West Virginia Attorney General Patrick Morrisey gave further details on a case before the U.S. Supreme Court concerning authority over greenhouse gas emissions, while also commenting on an appeals court lifting an injunction on COVID-19 vaccine mandates for large businesses.

Morrisey held a press conference Monday morning at the State Capitol Building. Last week, the Attorney General’s Office announced they had filed their opening brief in a court case brought against the U.S. Environmental Protection Agency.

The U.S. Supreme Court announced at the end of October it would hear a challenge by West Virginia and 19 other states against the EPA over issues with the Clean Power Plan. Morrisey said oral arguments have been set for Monday, Feb. 28.

“We’re going to be ready to go,” Morrisey said. “This is obviously going to be a big case for our state.”

Morrisey was joined Monday by representatives of the West Virginia Coal Association, the West Virginia Business and Industry Council, and other groups who are filing briefs supporting Morrisey’s case before the U.S. Supreme Court. At least four other states are also considering joining Morrisey’s case.

“We have joined with many people across the state who share our common perspective,” Morrisey said.

“This challenge is vitally important for our state and our state’s workforce and our state’s economy,” Hamilton said. “The focus here is not to stop the EPA … but rather keep them somewhat controlled within the fence and within the strict mandate of Congress in their attempt to regulate coal plant emissions.”

“We feel this has broad-based ramifications for a lot of our industries,” said Mike Clowser, chairman of WVBIC. “What we’re talking about is any regulatory industry that has dealings with any federal agency, whether it’s EPA, (Occupational Safety and Health Administration), Labor, or a wide variety of regulations employers must follow.”

Morrisey said members of Congress, led by U.S. Sen. Shelley Moore Capito, R-W.Va., are also filing briefs supporting Morrisey’s position. Capito and U.S. Rep. Cathy McMorris Rodgers, R-Wash., released their amicus brief Monday afternoon. The brief’s supporters included 46 senators and 45 members of the House of Representatives.

“If Congress had intended to give the EPA such sweeping authority to transform an entire sector of our economy, Congress would have done so explicitly. An administrative agency like the EPA may decide issues of such vast economic and political significance only when the agency can point to ‘clear congressional authorization,” the brief stated.

The states are challenging a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that blocked the Affordable Clean Energy (ACE) rule, a Trump-era rule that replaced the Clean Power Plan with less stringent regulations on coal-fired power plant emissions.

“When a federal agency wants to take an action of such major financial, political, or social consequence, it needs to have a clear statement from Congress,” Morrisey said. “It needs to have authority delegated to it by Congress. That allows our system of government to work.”

The Supreme Court previously blocked the Clean Power Plan rule in 2016, first proposed under former president Barack Obama, preventing the rule from taking effect. The rule would have given expansive powers to the EPA to regulate the carbon dioxide emissions of coal-fired power plants. Morrisey led a 27-state coalition to secure the 2016 stay of the Clean Power Plan.

Former president Donald Trump scrapped the Clean Power Plan and replaced it with the ACE rule. The D.C. Circuit vacated the ACE rule in January, requiring the EPA to start over from scratch on a new rule. According to Morrisey’s brief, the EPA is exceeding its authority over coal-fired power plants when Congress has authority.

“EPA now wields power to decide major questions implicating hundreds of billions of dollars, tens of thousands of potentially regulated parties, and years of congressional wrangling,” the brief stated. “The agency may compel plant owners to pay competitors. It can even force plants to shut down. Yet Congress did not clearly say in any part of the (Clean Air Act) … that EPA can exercise this transformative power. That omission dooms any claim that EPA can.”

President Joe Biden announced a goal in April of cutting U.S. greenhouse gas emissions by between 50 percent and 52 percent of 2005 levels by 2030. Hamilton said Biden’s EPA could use its regulatory authority to end coal-fired power and interfere with free market forces.

Morrisey also addressed a recent decision Friday by a three-judge panel of the 6th U.S. Court of Appeals lifting an injunction blocking enforcement of a rule developed by the U.S. Occupational Safety and Health Administration requiring either COVID-19 vaccinations for businesses with more than 100 employees or weekly testing of unvaccinated employees.

Morrisey said a coalition of states have appealed that ruling to the U.S. Supreme Court, seeking a stay.

“We expect that’s going to move on a very fast pathway,” Morrisey said.

West Virginia is part of several lawsuits blocking Biden vaccine mandates, including mandates for federal contractors and for healthcare workers. Both of those mandates are under federal injunctions blocking their implementation.

Steven Allen Adams can be reached at sadams@newsandsentinel.com


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