W.Va. will be hit hard by EPA plans, former EPA lawyer says

CHARLESTON – While West Virginia won't have to adjust its energy use as much as most states under proposed rules, a former U.S. Environmental Protection Agency general counsel says the state's economy will be hit dramatically by the plans.

Roger Martella, who spoke Monday at an event hosted by the West Virginia chapter of the Federalist Society, also said he sees a rough legal road ahead for the EPA's proposed "Clean Power Plan," which will require cuts in the emission rates from coal-fired power plants by 30 percent by 2030.

“Yes, this is definitely something that you could say has a high risk legally," he said. “There are a lot of unprecedented legal positions. It seems risky for the EPA to me."

Martella, who is regarded as one of the nation's top environmental attorneys, was the EPA's top attorney from 2006 to 2008 under President George W. Bush. He now works in Washington for large global firm Sidley Austin.

"Looking at the numbers directly impacting West Virginia only tells a smart part of the story for the state," Martella said. "The bigger impact is far beyond your borders. How other states will have to reduce their reliance on coal – that is what will have the bigger impact. That's what the state's economy relies on.

"West Virginia isn't hit too hard by coal generation numbers. But it will be greatly affected by those numbers."

West Virginia will be required to reduce emissions by 20 percent before 2030.

“Because the No. 1 focus of the rule is to decrease other states’ reliance on coal, the impact on West Virginia is going to be felt on exporting coal and on the coal industry,” Martella said.

Most West Virginians – including politicians on both sides of the aisle – see the potential problems for the state.

Gov. Earl Ray Tomblin, a Democrat, has expressed concerns about the impact the EPA proposals could have on the state. Attorney General Patrick Morrisey, a Republican, has led the charge on a lawsuit against President Obama focusing on EPA authority.

Martella says he thinks the lawsuit filed by Morrisey and other state AGs is just the beginning of the legal action regarding the EPA proposals.

"It's just a drop in the bucket, if you ask me," he said Monday. "The biggest lawsuits are yet to come. The ones filed so far are just the first shots across the bow.

"Once the rules are finalized, the courts will be taking a long, hard look at them."

He said he believes such lawsuits will have "an excellent chance of success."