The Obama administration’s Clean Power Plan, which requires carbon emission reductions from power plants, is dividing the nation in two.
More than two dozen states, including Colorado, have sued to stop the plan, while 18 states, the District of Columbia and six communities have jumped into the case in defense of the plan.
That Colorado is right in the middle of this tussle speaks to its own internal divide. Gov. John Hickenlooper, a Democrat, is strongly in favor of the Clean Power Plan. Republican Attorney General Cynthia Coffman added the state’s name to the lawsuit opposing the plan.
Coffman has joined three lawsuits against federal environmental regulations in her first year in office, showing her allegiance to establishment conservative values. The first lawsuit she joined originated in Wyoming and is a challenge to proposed federal fracking laws. The second was a North Dakota suit against a new rule of the federal Clean Water Act.
“The state has the right to determine its own destiny,” Coffman said in an interview, shortly after joining the third lawsuit late last month, the multi-state suit attempt to block the Clean Power Plan.
Coffman said she’s not against the core mission of the plan, but she believes the Environmental Protection Agency is overstepping its authority with the rule.
Hickenlooper does not support any of the lawsuits. The former oil and gas geologist has made a name for himself by leading efforts for strong regulations on the energy industry, often in coordination with the federal government. On the Clean Power Plan, Hickenlooper wrote a letter in May to U.S. Senate Majority Leader Mitch McConnell saying Colorado intends to comply with the rule.
Hickenlooper is frustrated enough with Coffman’s lawsuits that he has now petitioned the state Supreme Court, asking it to weigh in on who is actually in charge of suing the federal government, the governor or the attorney general.
“Generally, a lawyer can’t file a suit without the client saying we want the suit to be filed,” Hickenlooper said. He argues that the governor is legally the voice of the people. In other words, he’s her client and she needs his permission to sue.
Coffman claims she has independent authority to sue, and says it is not that unusual for a governor and attorney general to fall on opposite sides of an issue like this.
“That’s just how governing works sometimes,” she said.
Indeed, attorneys general and governors are split on the Clean Power Plan in at least three other states: Maryland, Michigan, and Iowa.
So, who’s correct about the exercise of legal authority?
“The truth probably lies somewhere in between and is also probably uncertain,” said University of Denver Associate Law Professor Justin Pidot.
On one hand, there is a 2003 case in which the Colorado Supreme Court specifically gave the attorney general authority to file independent legal action in a dispute with the Colorado secretary of state.
That is precedent for Coffman’s side, Pidot said, as far as the attorney general challenging the state government. But this case involves suits against the federal government. On that matter, Pidot said the Colorado constitution gives some weight to the governor’s argument.
Yet, Hickenlooper asking for clarification from the state Supreme Court is surprising to him. In the past, Colorado governors and attorneys general haven’t taken disputes this far.
“Because neither may want a ruling,” he said. “Neither may want a decision that either the governor has all the power or the attorney general has all of the power.”
The upside to the current murkiness in the law, Pidot said, is that it encourages the two sides to negotiate around legal disputes. If the state Supreme Court rules on this issue, Pidot believes citizens would see much less coming together and consultation between the two offices.
Meanwhile, all of this legal back and forth on the Clean Power Plan is leading progressive Boulder to strike out on its own. The city has officially joined the other states and cities fighting in favor of the plan.
Boulder’s regional sustainability coordinator, Jonathan Koehn, said the city didn’t want to wait on the sidelines until the state made up its mind.
“It is municipalities, cities and local jurisdictions that are going to be harmed the most,” he said. “We are the ones that are on the front lines of climate change, we will suffer the impacts most greatly.”
As of yet, the Colorado Supreme Court has not decided whether to take up the governor’s petition against the attorney general.