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DEP rejects aid from A.G.-elect in EPA battles

CHARLESTON, W.Va. -- Department of Environmental Protection Secretary Randy Huffman isn't so sure he wants Attorney General-elect Patrick Morrisey to start a new legal campaign against the U.S. Environmental Protection Agency.

Huffman said Friday that his agency has good lawyers already, and has brought successful litigation against new EPA coal-related initiatives that state officials thought were improper.

"We have very good legal representation, and I feel good about where we are," Huffman said.

Morrisey, a Republican who narrowly defeated longtime Democratic Attorney General Darrell V. McGraw, has said one of his major efforts will be to "take on" the EPA by filing lawsuits against federal regulations he believes limit coal production.

"Our state has literally been under attack by [the] EPA and some of their overreaching policies that have come out of Washington," Morrisey said the day after the election on the MetroNews show "Talkline." "That must come to an end."

Although most experts believe EPA rules are not the major factor behind recent cutbacks by the mining industry, DEP officials already have taken legal steps to oppose the federal agency.

At the behest of then-Gov. Joe Manchin, the DEP two years ago filed a federal lawsuit that successfully blocked the EPA from conducting tougher reviews of strip-mining permits and imposing new water-quality guidance aimed at reducing mountaintop removal pollution. The EPA is appealing.

The DEP also filed a "friend of the court" brief in support of Arch Coal in the company's appeal of an EPA veto of the permit for its Spruce Mine, the largest mountaintop removal permit in West Virginia history. Arch won the initial case, and the EPA is appealing.

In those two cases, the DEP has been represented by the Charleston firm of Bailey & Glasser, which also worked for the agency more than a decade ago when the state fought a federal court ruling that threatened to limit mountaintop removal.

Lawyer Ben Bailey and other attorneys at the firm were approved by McGraw as "special attorneys general" to handle those cases.

The state, through McGraw's office, also is among the various parties challenging another EPA regulation that aims to force coal-fired power plants to reduce their emissions of mercury and other toxic air pollution. That case is pending.

Neither Gov. Earl Ray Tomblin nor McGraw joined in at least two other cases challenging the EPA's cross-state air pollution rule and the agency's finding that greenhouse gas emissions are a danger to the public.

Huffman said the state has made decisions to target its involvement in such litigation, to focus on lawsuits it felt were most important and where the state's legal theories could add to the case.

"We've made conscious decisions as an agency and an administration on where we choose to pick a fight," Huffman said. "We made our choices and we feel like they were good choices. We feel like we challenged what needed to be challenged."

Huffman said he's not sure Morrisey has independent authority to challenge federal environmental regulations.

"As I understand it," Huffman said, "the attorney general needs a client."

In the 1990s, McGraw feuded with DEP officials over environmental policies, often over his belief that the agency was going too easy on the owners of large garbage dumps that hauled out-of-state trash into West Virginia.

Partly because of those fights, state lawmakers gave the DEP authority to hire its own lawyers and operate an in-house Office of Legal Services.

In his "Talkline" appearance, Morrisey said he would prefer to work with the governor and other state officials on an approach to dealing with EPA issues.

"I'm not one to just run out and file a lawsuit," Morrisey said, "[but] the attorney general does possess independent power to challenge some of these regulations."

Huffman said he sees no need to change the way the DEP's legal work is handled, either now or in the future.

"I'm interested in protecting the arrangement I have now," Huffman said. "I don't need to be in a position to be constantly arguing with a statewide elected official about what environmental policy should be."

Huffman said Morrisey and Tomblin might agree about the need to fight EPA policies, but they might disagree about the specifics of how to do so. And, Huffman said, a future attorney general and governor might not agree about environmental policies.

"I don't think it's best for the attorney general to decide what the state's position should be," Huffman said. "I feel like there can only be one coach."

Scott Will, a spokesman for Morrisey, said Friday, "This is not the right time for a debate over the powers of the office, as Patrick has emphasized that he wants to work collaboratively with the governor and the agencies to speak with one voice to protect the state's interests."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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