How Can Colorado Be Both For And Against The Clean Power Plan?
More than two dozen states, including Wyoming and North Dakota have sued to stop the Obama administration's Clean Power Plan. Eighteen states, the District of Columbia and six communities have jumped into the case on the opposite side, in defense of the plan.
Right in the middle, you have Colorado, where this regulatory tug-of-war over the Clean Power Plan is pulling on two of the state's top elected officials, Democratic Gov. John Hickenlooper and Republican Attorney General Cynthia Coffman.
Through joining three lawsuits in her first year in office against federal environmental regulations, Coffman is showing her allegiance to establishment conservative values. The first lawsuit she joined came from Wyoming, a challenge to proposed federal hydraulic fracturing laws while 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, a multistate suit against the Clean Power Plan.
She's not against the core mission of the plan, but Coffman believes the Environmental Protection Agency is overstepping its authority with the rule.
Gov. John 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.
Frustrated with Coffman's lawsuits, Hickenlooper has petitioned the Colorado Supreme Court, asking it to weigh in on who's 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.
"Neither may want a decision that either the governor has all the power or the attorney general has all of the power."
The attorney general represents the people of Colorado, but Hickenlooper argues the governor is legally the voice of the people. In other words, he's her client and she needs his permission to sue.
Coffman said she has independent authority to sue, and it's 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 right?
University of Denver associate law professor Justin Pidot said "the truth probably lies somewhere in between and is also probably uncertain."
On one hand, there is a 2003 case where 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 a precedent for Coffman's side, Pidot said, as far as the attorney general challenging the state government. But this involves federal suits. 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 Pidot. In the past, Colorado governors and attorneys general haven't gone there.
"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."
There is an upside to the current murkiness in the law, with things unclear, the two sides would often negotiate around such legal decisions. Pidot believes citizens would see much less coming together and consultation between the two offices if the state Supreme Court rules on this.
Meanwhile, all of this legal back and forth on the Clean Power Plan is leading progressive Boulder, Colorado to strike out on its own. The city has officially joined the 24 other states and communities 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."
All of this means Colorado is making a pretty confusing statement on the national stage about the Clean Power Plan. As of publication of this story, the Colorado Supreme Court has not decided whether or not to take up the governor's petition against the attorney general.
You can read the petition below:
Inside Energy is a public media collaboration, based in Colorado, Wyoming and North Dakota, focusing on the energy industry and its impacts.