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West Virginia's elected officials were able to stall, if not yet
block, key pieces of US President Joe Biden's climate agenda
towards the latter half of 2021 using approaches ranging from
legislative tactics to legal action.
Their goal was to stall Biden's target of
halving the nation's GHGs by 2030, decarbonizing the power
sector by 2035 and wean it away from fossil fuels.
Biden's target, if realized, could prove calamitous for the
Appalachian state, which is flush with coal and natural gas
reserves and reliant on the mining and power generation industries
supporting them for employment and revenues. On the other hand, it
could also protect the state from the climate-driven, extreme
weather conditions that scientists say are exacerbated by fossil
fuel burning.
West Virginia faces threats from inland flooding and extreme
heat between now and 2050 and was given a D+ rating for its
preparedness to deal with inland flooding and C for extreme heat
under the first-ever
national report card prepared by Climate Central, a global
consortium of scientists, and ICF International. The report card
looked at each state's preparedness to deal with major
climate-driven, weather-related threats.
"While the state is addressing its current risks, it has not
assessed how its vulnerabilities could change under future
climates, or has it created a climate change adaptation plan to
address them," the report card said.
West Virginia is not the only state that has taken a stand
against Biden harnessing the executive branch's power to tackle the
threat posed by increasingly frequent and more intense
climate-fueled weather events, according to Baker Botts partner
Alexandra Dunn. But the state's elected officials have been the
most public and vocal about their opposition, especially in recent
months to what they see as federal regulatory overreach.
For starters, the West Virginia's congressional delegation has
refused to support Biden's $1.75-trillion Build Back Better Act
that contained $550 billion in clean energy tax credits and other
incentives to move the country to a decarbonized future. And the
state's attorney general's office is either leading or involved in
coalitions of like-minded states that are taking the Biden
administration to court over its climate and environmental
regulations, notably power plant limits on GHGs that date back to
the Barack Obama administration.
Basically, "West Virginia officials are using all the levers
that are available to them to slow down Biden's climate agenda"
said Thomas Lorenzen, a partner with law firm Crowell & Moring
who co-chairs the law firm's Environment and Natural Resources
Group.
Agreeing with Lorenzen is William Snape, director of the
American University Washington College of Law Program on Energy and
Environment.
"Yes, it appears West Virginia has some leverage right now,"
said Snape, who also serves as the senior counsel for the nonprofit
Center for Biological Diversity.
"The real question might be why elected state officials are not
pursuing cleaner economic policies that would clearly be better for
their residents' future, today and tomorrow," he added, especially
as climate-fueled impacts in the US alone have run into billions of
dollars.
Clear signal from Congress
Right before the US Congress recessed for the holidays in
December, US Senator Joe Manchin, Democrat-West Virginia, pulled
his support from the Build Back Better Act containing billions
in clean energy tax credits. Manchin's decision effectively
jettisoned the bill's current chances of passage in the US Senate,
where Republicans and Democrats are tied 50-50 and no GOP member
supports the legislation.
Prior to Manchin's action, West Virginia Attorney General
Patrick Morrissey
persuaded the US Supreme Court in October to review a lower
federal court ruling that ostensibly gave the US Environmental
Protection Agency (EPA) more power than Congress granted under the
national air pollution law to regulate GHGs beyond the fence lines
of fossil fuel-fired power plants.
US Senator Shelley Moore-Capito, Republican-West Virginia, even
persuaded 46 of her Republican colleagues in the chamber to file a
legal brief in support of West
Virginia's petition in the Supreme Court. She was joined by 44
members of the House of Representatives as well. The lawmakers
agreed with West Virginia's delegation that "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 Supreme Court is scheduled to hear oral arguments on 28
February.
Taking on fossil fuel reliance
Biden has made tackling the climate crisis and protecting
vulnerable communities twin priorities. He has released a flurry of
executive orders from the day he took office that range from
setting renewable energy and electric vehicle targets to assessing impacts of
climate-related financial risks, and ending overseas subsidies for
coal-fired projects.
Biden signed onto the Glasgow Climate Pact following
the UN COP26 climate meeting held in Glasgow, Scotland, in
November. This accord for the first time in UN climate summit
history got 190 countries, including the top five global GHG
emitters—China, US, and India—to
agree to "phase down" use of unabated coal power and fossil
fuel subsidies at some uncertain date.
For West Virginia, this is threat to a key industry. Lorenzen
said West Virginia wants to protect its coal and gas industry that
employs a sizeable number of its population and provides the state
significant revenues. But he said the state and their
representatives are overlooking that market forces and public
sentiment have shifted away from fossil fuels because of their key
role in exacerbating global warming, and related climate impacts
that have run into billions of dollars in the US alone.
Energy driving West Virginia economy
Energy will continue to remain the economic driver in West
Virginia through 2026, with industrial consumption, according to
the
economic outlook for the state carried out by West Virginia
University (WVU) John Chambers College of Business and Economics
for 2022 through 2026.
The US Energy Information Administration (EIA) said West Virginia remains a significant
consumer of energy and ranks among the top 10 states on a
per-capita basis, but also a net-supplier to the rest of the
country. Energy-intensive industries such as manufacturing
chemicals, mining coal, and extracting oil and natural gas are key
contributors to the state's economy.
In 2020, the year when the COVID-19 pandemic slowed energy
production and usage, the EIA said West Virginia remained the
second-largest coal producer in the nation after Wyoming,
accounting for 67.2 million short tons—or 13% of US total coal
production. But it recorded a drop of about 27.9% compared with
2019 when it produced roughly 93 million st.
"We forecast production will peak in late 2022 at about 75
million tons annualized, well below 2019's total volume of 93
million tons," the outlook said.
According to the EIA, West Virginia also is the source of the
largest share of the nation's exported coal, and the state
accounted for 33% of US coal exports to other countries in
2020.
Overseas demand for coal dropped, falling from $2.3 billion in
revenue in 2019 to $1.4 billion in 2020. Although coal exports
declined in 2020, India and Ukraine remained the top purchasers.
This year, China surpassed all other countries as it beefed up its
purchases of West Virginia coal to $306 million in the first two
quarters of this year.
"If this pace continues through the end of the year, China will
have imported nearly 15 times as much coal from West Virginia as in
2020, when the country purchased $38 million in total value," West
Virginia University outlook said.
Moreover, coal-fired power plants account for almost all of West
Virginia's electricity generation, and were responsible for
supplying 88% of power needs in 2020, EIA said. Although natural
gas generation increased in the state, EIA said eight of the
state's 10 largest power plants, both by capacity and by
generation, continue to use coal. And coal-fired electricity
continues to be the cheapest in the region.
Manchin takes aim
Although Manchin has not directly targeted the clean energy
provisions of the Build Back Better Act legislation, he did take aim at a prior climate
change bill during a 2010 election campaign ad.
Manchin's concern remains inflation, unemployment due to the
shift away from the state's main sources of revenue, and the
increased annual budget deficits created by the additional spending
in Build Back Better.
As a result, Biden is left only with the bipartisan
$1.2-trillion Infrastructure Investment Jobs Act. Manchin described this bill 22 December
as "a once-in-a-generation investment" that "makes the single
largest investment in American history to upgrade our power
infrastructure and facilitate the expansion of clean energy,
allowing our electric grid to remain a marvel of engineering and
the envy of the world."
As the Center for Strategic and International Studies noted in
an August
analysis, the infrastructure bill isn't enough to ensure a
successful US energy transition. "It is unlikely to beget more than
incremental progress in emissions reduction and technological leaps
in some sectors," the center said.
Exercising role as state's chief legal
officer
In contrast to Manchin, Morrissey and Capito have made no bones
about their opposition to Biden's climate plan because they say it
will shift energy generation to renewable energy from baseload
fuels like natural gas, coal, and oil that are the mainstay of West
Virginia's economy, and "skyrocket" energy prices.
"And that's the last thing we need already in an inflationary
period," Morrissey said at a 20 December press briefing.
As West Virginia's chief legal officer, Morrissey has taken it
upon himself to carefully monitor the Biden Administration as it
takes steps to fulfill the climate mandate "and stand[s] ready to
defend West Virginia's and America's interests and the rule of
law."
And it is in this capacity that Morrissey is now leading a
19-state coalition to ask the Supreme Court to determine whether
EPA or any federal agency has the authority to take "an action of
such major financial, political or social consequence" without
congressional approval.
Questioning scope of EPA authority
The action in question is a 2-1 decision by the US Court of
Appeals for the District of Columbia Circuit about EPA's authority
to regulate GHGs across the power sector.
At the start of the year, the appeals court vacated and remanded
the Trump EPA's 2019 Affordable Clean Energy Rule (ACE) for a
rewrite, saying it illegally restricted the measures that could be
imposed to curb power plant GHGs.
The court stopped short of reinstating the 2015 Clean Power Plan
(CP), which ACE rule replaced—but it affirmed EPA's authority
to enact broad climate regulations, leading to the current appeal
before the highest court in the land. The ACE rule restricted power
plant GHG regulation to using technologies and approaches for
improving the performance and operation of coal-fired units. The
court disagreed with the reading and said the EPA's authority is
broader and can be used to impose standards based on technology and
approaches that were allowed in the CPP rule.
Morrissey and other state attorneys general claim in their brief that Congress did not
explicitly give EPA the authority to go beyond the fence lines to
regulate GHGs.
For West Virginia, Morrissey said the Supreme Court review of
this ruling is significant because EPA is attempting to dictate how
electricity is generated, which is the domain of the states. He and
other plaintiffs also claimed that the Supreme Court needs to
restrict the Biden administration's authority because it wants "to
unilaterally decarbonize our nation, and they want to do it without
authority to accomplish their goals."
Seeking preemptive strike
However, Vermont Law School Professor Patrick Parenteau said
Morrissey and other state attorneys general should be careful about
pursuing what he called an "anticipatory ruling, a preemptory
strike, if you will," from the Supreme Court.
Parenteau said EPA has yet to propose a replacement for the ACE
rule struck down by the DC Circuit. And EPA Administrator Michael
Regan has stated publicly that the court
ruling has allowed the agency to take a fresh look at the
regulation that would build on the lessons learned from writing the
CPP and ACE rules.
Moreover, the Supreme Court's 2007 Massachusetts v. EPA
ruling made it clear that EPA has a mandatory obligation to impose
meaningful controls on coal-fired power plants to reduce their
sizeable GHG emissions. "If the Court rules that EPA's only option
is to impose controls 'within the fence line,' then it will have to
seriously consider carbon capture and sequestration technology at
each plant, and that could prove ruinously expensive for many
perhaps all existing facilities," Parenteau added.
Emblematic of partisan divide
West Virginia's stance is emblematic of the partisan divide not
just in the US Congress, where no Republican is supporting Build
Back Better Act, but also the rest of the country.
The same groupings of states that were supporting President
Donald Trump's environmental rules in court are now challenging
Biden's efforts.
North Dakota, for instance, asked the Supreme Court to review
the same court ruling in a separate petition, but their petition
was folded in with the one West Virginia filed. Kentucky didn't
join the original complaint that West Virginia filed but filed its
own legal brief in support.
Louisiana Attorney General Jeff Landry led a 13-state coalition
that included West Virginia in successfully challenging the pause
on new oil and natural gas leases on federally managed lands and
waters that Biden imposed via an executive order in January.
Ultimately, US Interior Department resumed the leasing program on
public lands and waters in lieu of taking time to assess the GHG
impacts of those leases.
Morrissey joined Landry in yet another case challenging the
reinstatement of Obama-era social cost of carbon (SCC) of
$51 per metric ton (mt) that the Biden administration imposed as an
interim measure while it works on updating the estimate, which is
due in January. Under Trump, the EPA and other federal agencies
used a $1-7/mt range to account for just US impacts from climate
change, while ignoring the global effects.
Biden ordered the federal government to use the higher value for
SCC, which is the metric for assessing the calculate the economic
impacts on farm productivity, human health, natural disasters,
migration and more when GHGs are added, ton for ton, to the
atmosphere and climate change worsens. Earlier this month, Landry
tried to persuade the federal district court judge to place a
temporary pause on the use of this metric while the case is
heard.
In March, Morrissey warned the US Securities and Exchange
Commission (SEC) of legal action if the federal agency moves
forward with mandating climate-related financial disk disclosures
from publicly traded companies.
The SEC is working on a proposal, which is
due out in early 2022, but earlier in the year it had sought
comment on how it should go about crafting the disclosure rule.
Morrissey said the SEC was engaging in "mission creep" and going
beyond its statute that calls for disclosing risk only if it is
"material" to protecting investors against fraudulent
practices.
In June, Morrissey reminded the SEC that it has "a difficult
mandate with respect to safeguarding public trading, but it is hard
to see how it can legally, constitutionally, and reasonably assume
a leading role when it comes to climate change."
Mandy Gunasakera, a principal with Section VII Strategies, a
Washington DC-based boutique energy and environmental consulting
firm, described Morrisey's office as a "legal powerhouse," which
has developed a reputation for pushing back against
over-regulation.
"It's not a surprise that [West Virginia] has re-emerged given
the Biden Administrations dismissive approach to the rule of law
and desire to use the Clean Air Act to push an otherwise unpopular
and unauthorized regulatory agenda," Gunasakera, who served as the
EPA Chief of Staff under President Donald Trump's administration,
told Net-Zero Business Daily 28 December.
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