July 25, 2021 - “We have some huge challenges in front of us,” said Patrick Morrisey, West Virginia Attorney General, in addressing the joint meeting of the West Virginia Coal Mining Institute and West Virginia Coal Association held at the Marriott Morgantown at Waterfront Place, Morgantown, West Virginia last month. “This is the endgame now and we have a lot of work ahead of us.”

Patrick Morrisey

West Virginia and Georgia are leading the National Legal Coalition to try to block the Biden Administration from renewing WOTUS (Waters of the United States) rules. Morrisey said that he thinks that he is on very strong legal ground but just because the legal ground is strong, doesn't mean that the Biden Administration is going to try to slow down. Regarding WOTUS and the ESG (Environmental, Social and Governance) investor relations rules that are pending at the Securities Exchange Commission, there is a level of aggression coming out of the Biden Administration that makes the Obama administration look like little kids.

These guys are taking positions on policies that go way beyond what Obama could have ever dreamed about and that leaves them really vulnerable in the courts. But it also means that they're going to deploy the same strategy as Obama, which is even if you know that something's not likely to be upheld in court, you push really, really hard, and you try to use the market forces to collapse coal. 

That's their goal and obviously, this time, it's not just coal. It's coal, oil, and natural gas, you name it in terms of a fossil fuel, they're going after it. Morrisey is working with his colleagues on the legal initiatives and the litigation, whether it's the investor markets and the public relations, to let people know that the legal premise behind a lot of the Biden initiatives is not there. This should be a win in court. The question is going to be when. That's going to be the fight, but it's going to require everyone to continue to step up. A large coalition is needed not only involving the fossil fuel industries, but also the manufacturing sector. To date, many of them have been really sitting on the side with respect to some of these Biden initiatives, because they're afraid. They need to engage early and often to have a chance to push back. 

Morrisey intervened on the Mitchell power plant because it's critical to keep Mitchell viable, and extend the date out from 2028 to 2040. We care a lot about the miner jobs, we care about the economic viability, but it goes way beyond that. If you look at the Biden climate plan. It's stunning in terms of its aggressiveness. They are trying to wipe out all coal fired power plants by 2030. They are trying to reduce natural gas capacity in half, by 2030. They are trying to move 100 million people over to electric cars by 2030 and to completely electrify the grid. 

In West Virginia, we're still 90% coal. Imagine the kind of changes that West Virginia would need to make in order to achieve any of these goals. The level of destruction is something that we haven't seen before though the premise behind this is faulty. President Biden does not have the authority to do the things that he'd like to do. He wants to make the EPA into the almighty, all powerful regulator, but it lacks that legal authority. West Virginia has led a nineteen-state coalition, where it filed the petition of the US Supreme Court, and is arguing that the EPA does not have the authority to settle such major questions with respect to emission standards. 

There's a clear and present danger and that's why the petition was filed. Once again, Morrisey thinks that we have a lot of legal support behind us. But just as it was very difficult to obtain the last stay, it's going to be really hard to obtain it this time. He is hopeful that it's going to be in September 30 to October 10 or so that we'll find out whether the petition at the US Supreme Court is granted. If we prevail on that petition, we do a huge amount of hurt on the Biden Administration's ability to move their climate change agenda. 

The help of industry is needed to continue to make some of the economic arguments about why this is a real threat right now. Morrisey needs raw data with respect to what that climate change proposal will mean, not only for West Virginia, Appalachia, but for every state in the nation in terms of the number of jobs that are lost. We have to further build on the economic effects on the power grid. We know that there's going to be less capacity that's needed. We just have to look at what's been going on in Texas, and in California to know of the importance of having adequate supply available. 

Coal serves that function right now. From a President Biden perspective, it need not serve that function in the future. We have to make sure we're educating people about that, and put together the meat and bones of the economic analysis. That analysis will make a difference as to whether we could prevail at the US Supreme Court. 

Morissey asked everyone to work with him. We need to try to come up with an economic study that is going to be very persuasive, not only to win in court, but to win the hearts and minds of Americans over. We still have a lot of work to do in that regard. Every time he meets with his AG colleagues, Morrisey keeps talking about fossil fuels and the importance of it. And there was a good reception. There were 19 states on his Supreme Court petition. Unfortunately, this Administration is going to be very aggressive. Early on, they announced what they wanted to do to the Keystone Pipe Line. Unfortunately, they used the market forces to bring Keystone to a stop, even though there were legal deficiencies in what the Administration was trying to do.

It can't possibly be that the EPA has the authority to rely on a little-known statute in the Clean Air Act to regulate huge swaths of the American economy. It just can't be. That's not how the constitutional system works. If Congress wants to act in this regard, they need to go through the proper channels. They need to pass a bill. The president needs to sign it and that's the appropriate way to handle large legislative questions of the day.

Senator Capito rightly focused on this new Clean Energy Standard. If they're successful in putting this in, that could really cripple us, because they're looking for that new Clean Energy Standard. Once again, we already obtained the stay at the Supreme Court. And now arguably, we have an even stronger majority of the court behind our principles. Once again, we're right on the law. But we have to make sure that they don't engage in this little reconciliation process where they cobble something up. Morrisey has been talking publicly and talked to Senator Capito, and lobbied Senator Manchin on this. We cannot let them slip it through. It’s inexcusable to let that happen. Otherwise, all of our hard work goes down the drain, and it makes some of their plans a little bit more realistic. 

West Virginia recently led a national coalition with respect to the SEC, these ESG guidelines. These are efforts underway to further cripple fossil fuels, and quite frankly, to regulate free speech coming out of the Securities and Exchange Commission. Right now, the early targets are coal, oil and natural gas. Now, usually, when you think of the SEC, their job is to protect investors, and they look at and they’re supposed to make disclosures relating to future financial performance. The SEC wants to go way beyond that, and force new mandatory disclosures that are going to make the left very, very happy. 

Morrisey has submitted comments, talking about the First Amendment concerns of the SEC taking this approach. The Securities and Exchange Commissioner is an enforcer of security laws in the country and shouldn't be another part of the climate change police. So, West Virginia is fighting on that to make sure they don't slip something past us. 

“We're going to need a strong West Virginia Coal Association. We're going to need help nationally, to continue to message this,” said Morrisey. “These are radical ideas and I think that's part of the ‘China first America last energy policy’. We have to be vigilant. Now is not the time to give up. This is the endgame now. We have a lot of work in front of us and I'm going to ask for your help again, because it matters for West Virginia, it matters for our Republic that we prevail”.