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Which state official has the most authority to decide whether to challenge the federal government in court?
Colorado has a recent history of divisiveness between its Democratic chief executives and its Republican attorneys general. Nothing new there. But the latest rift over the U.S. Environmental Protection Agency has become particularly heated, with Gov. John Hickenlooper seeking help from the state’s Supreme Court.
Hickenlooper’s chief legal counsel last week filed a petition with the state’s high court seeking a ruling that the governor, not the state’s attorney general, has the ultimate authority to decide when to sue the federal government.
“The attorney general has filed an unprecedented number of lawsuits without support of or collaboration with her clients,” Jacki Cooper Melmed, the governor’s chief legal counsel, said in a prepared statement. “This raises serious questions about the use of state dollars and the attorney-client relationship between the governor, state agencies and the attorney general.”
Roger Hudson, a spokesman for Attorney General Cynthia Coffman, quickly shot back that his boss fully expects to prevail in the dispute, which stems from Coffman’s decision in August to join other states suing the EPA over its Clean Power Plan.
“General Coffman remains confident the court will continue to affirm her independent authority as an elected constitutional officer,” Hudson said last week. “She looks forward to an expedient resolution so both the attorney general and governor can continue the people's work.”
In his petition last week, Hickenlooper said his challenge isn’t about the legal merits of Coffman’s federal lawsuits but instead is “about the direction of Colorado [executive department] policy, which [the governor] is empowered to direct under our constitution and laws.”
However, in a statement late last month when Coffman officially joined the 24-state lawsuit seeking to block the Clean Power Plan, Hickenlooper made it clear he objected to the AG’s actions because they ran counter to state policy already in place and compliance measures already underway.
“This lawsuit will create uncertainty for the state and undermine stakeholders’ ability to plan for and invest in cost-effective compliance strategies, something that the attorney general has been advising the state on,” Hickenlooper said on Oct. 23. “Colorado has already made great progress in clean air and clean jobs and worked extensively with the EPA to ensure we have the time and flexibility we need.”
The EPA’s Clean Power Plan would require power plants around the nation to cut carbon emissions by 32 percent from 2005 levels by 2030, converting coal plants to natural gas, nuclear energy and renewable sources. With coal industry hub West Virginia taking the lead, 23 other states and coal giant Murray Energy filed suit in the U.S. Court of Appeals in Washington, D.C.
In an interview with Route Fifty on Oct. 23, Coffman said it’s her independent obligation to maintain Colorado’s authority over its own power grid and try to prevent federal overreach that could drive up energy costs for Colorado consumers.
“At least at this juncture, the renewables—solar and wind—are more expensive,” Coffman said.
“That may not always be the case, but they are also less dependable than a fossil fuel that is always there, and sometimes the weather conditions change and the ability to generate wind and solar energy varies. So there is a reliability factor that is also important.”
Hickenlooper and members of the Colorado conservation community point out that the state’s investor-owned utilities are well on their way to obtaining 30 percent of their power from renewable energy sources by 2020—a standard first approved by voters in 2004 and later incrementally increased by the Colorado’s legislature.
Still, Coffman wants Coloradans to determine what fuel sources make up their power grid, not the EPA, which she is also considering suing over the Gold King Mine disaster in August despite opposition from Hickenlooper and local elected officials.
“The most important thing here is to hold up a hand and say, ‘Stop, wait a minute’ to the federal government and what I believe is an attempt to use the [Clean Power Plan] regulations to do something that the EPA was not able to achieve in Congress,” Coffman said, referring to the Waxman-Markey climate bill that passed in the House but never got out of the Senate in 2009.
Coffman said state staff can continue to work on Clean Power Plan compliance even while her office works to block the policy, and she added that a difference of opinion between governors and attorneys general is not all that uncommon.
“Some of the other states that have joined [the EPA suit] are in the same situation as us with a split between the governor and the attorney general, and my understanding is they are doing the same as I’m advising the governor, which is that he and his cabinet can go ahead and work on the implementation of the power plan,” Coffman said.
Professor Mark Squillace, who specializes in environmental, natural resources and water law at the University of Colorado Law School, agreed in a September interview that governor-attorney general rifts occur with some regularity.
“It’s certainly not unusual, but it is problematic that the attorney general is an elected official and happens to be from a different party than the governor and this creates this sort of internal conflict within the state, where the governor seems to be inclined to support what’s happening at the federal level with regulating greenhouse gases and the attorney general does not,” Squillace said, adding there is a cost associated with such lawsuits.
“This litigation is not being done for free, and if Colorado is joining, they’re going to be part of the lawyer’s fees that are going to be involved in handling this case,” Squillace said. “It shows the political nature of the debate though. It’s hard not to think that there wouldn’t be a kind of political outcome in the Supreme Court.”
Last year the U.S. Supreme Court ruled 7-2 that the EPA can regulate greenhouse gas emissions from sources such as power plants, and in 2007 the high court ruled 5-4 that the EPA should have regulated new car emissions to curtail greenhouse gas emissions.
In Colorado, former state attorney general Ken Salazar, who later served in the U.S. Senate and as the secretary of Interior in the Obama administration, argued that the AG must first and foremost serve as the lawyer for the executive branch.
“The only exception for the attorney general to take a position adverse to the governor is where the governor has taken a clearly unlawful position, and then only when certain traditional protocols are followed,” Salazar said in statement late last month. “Here no such argument can be made against the Gov. Hickenlooper’s position concerning the Clean Power Rule. Hence, in my view Attorney General Coffman’s actions exceed her authority as attorney general.”
However, some political observers note that Salazar, a Democrat, went against the wishes of Gov. Bill Owens, a Republican, in challenging a redistricting case in 2003, and that another Colorado attorney general, Republican Ken Suthers, went against both Democratic former Gov. Bill Ritter and Hickenlooper over various issues, although they never tried to block his actions.
David O. Williams is a journalist based in Avon, Colorado.
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