Ky. AG gets funding to fight Biden administration on issues (2024)

When Kentucky Attorney General Russell Coleman told state lawmakers in January about the budget needs of his office, Rep. Patrick Flannery, R-Olive Hill, asked if he needed more resources to address a “regulatory avalanche” regarding a “green agenda” coming from the federal government.

Coleman, a Republican, said his office would welcome them, saying there was a “shotgun of regulation targeting the coal industry, targeting coal-fired power plants” in the near term.

The two men were referring to regulations either finalized or in the process of being finalized by the Biden administration, many of them issued by the Environmental Protection Agency. Broadly, these regulations seek to curb heat-trapping greenhouse gas emissions contributing to climate change, along with cutting related air and water pollution and are aimed at fossil fuel-fired power plants and the transportation industry.

“We’re going to be pushing back and fighting the EPA particularly in a way that is unprecedented,” Coleman said then, adding that he had the benefit of following former Attorney General Daniel Cameron who had built “a team to push back” and work with other attorneys general.

Coleman has done just that through federal courts, leading and joining lawsuits with other Republican state attorneys general suing to block federal rules over a litany of issues, including methane emissions at oil and gas wells, deadly soot pollution from power plants and industry and attacking the EPA for pursuing environmental justice using civil rights laws, a petition calling it a form of “racial engineering.” Coleman recently trumpeted a federal judge ruling in favor of a legal challenge he led against a rule requiring state transportation officials to set goals for reducing heat-trapping carbon dioxide emissions from vehicle tailpipes and other sources.

The GOP-dominated legislature decided earlier this month in the final hours of this year’s legislative session that Coleman needed more financial support. Taking a bill originally about regional drivers licensing offices, Republicans added last-minute language giving $3 million to Coleman’s office from the state’s Budget Reserve Trust Fund or “rainy day” fund to create an “electric reliability defense program.”

That bill became law after Democratic Gov. Andy Beshear line-item vetoed some last-minute appropriations added into that legislation, Senate Bill 91, but left the funding for the $3 million. A Beshear spokesperson didn’t immediately respond to an email asking if he supported the funding.

Coleman told the Lantern the extra $3 million will be used to pay attorneys and find experts. He said the regulations will both impact prices and undermine electricity reliability for Kentuckians at a time when energy demand is rapidly increasing.

Senate President Robert Stivers told reporters during the legislative session the idea behind the allocation was to have the attorney general litigate “overreaching regs” by the EPA and other agencies. He referenced the “Good Neighbor Plan,” Obama-era regulations strengthened under the Biden administration limiting downwind air pollution that creates smog.

Those regulations aren’t in effect in Kentucky and 11 other states after court orders suspending the rules amid legal challenges. The U.S. Supreme Court heard arguments about the regulations earlier this year.

A new legal battle between Republican attorneys general and the EPA could emerge soon as the agency last week finalized a suite of new rules that, among other aspects, targets carbon dioxide emissions at coal-fired power plants and new gas-fired power plants. Existing coal-fired power plants and new gas-fired power plants would have to “control” 90% of their carbon emissions by 2032 if power producers plan to operate the plants past 2039.

Globally, burning coal for electricity plays an outsized role in warming the climate, according to the International Energy Agency. The intergovernmental, autonomous research organization found that burning coal across the world was the single largest source of global temperature increase. Kentucky is also among the minority of states still largely reliant on coal; a 2022 report from the Energy Information Administration, a federal agency collecting and analyzing energy-related data, found that Kentucky was one of four states in 2021 that generated more than 70% of its electricity from burning coal.

Rules designed to protect public health

But for the leader of one Kentucky-based environmental legal group, the funding spent by the legislature to boost Coleman’s efforts is “a waste of taxpayer dollars that can be put to much better use.”

Ashley Wilmes, the executive director for the Kentucky Resources Council, said it was “particularly unfortunate” that Coleman, who’s charged with representing ratepayers’ interests, is obstructing “an inevitable transition to a clean energy future, to a decarbonized energy future.”

“It’s just disconcerting to see these attacks on EPA rules that are designed to protect public health and the environment at a time when we really need to be focusing instead on reducing carbon emissions that cause climate change and reducing air pollution emissions from a public health perspective,” Wilmes said.

Generally, utilities across the country are already transitioning on their own away from coal-fired power because of lower-cost options such as gas-fired power plants and renewable energy. Utilities, including those in Kentucky, are raising strong concerns about the feasibility of the EPA’s new carbon emissions rules for power plants, particularly its reliance on carbon capture technologies that are still being tested at utility scale.

Wilmes said there is even more uncertainty being created for Kentucky utilities seeking a transition away from coal with the passage of laws by the Kentucky legislature that create additional barriers to retiring fossil fuel-fired power plants.

A Stivers-backed bill this year creating a new review board to analyze fossil-fuel power plant retirement decisions became law after the legislature overrode a Beshear veto. Critics, ranging from investor-owned utilities to environmental groups, decried Senate Bill 349 as burdening ratepayers with the costs of keeping aging, uneconomical coal-fired power plants on the power grid.

Stivers, along with lobbying interests for the coal industry, argued SB 349 was needed to ensure the reliability of the state’s electricity supply. Louisville Gas and Electric and Kentucky Utilities President John Crockett, who was among utility representatives who testified against SB 349, had previously rebuffed assertions from Stivers that the state is facing an energy reliability crisis.

Coleman responds to criticism

Coleman, like Stivers, argues that the EPA is going beyond the authority it has been given by Congress and that the legislative funding allows him to enforce the law.

“These folks who take another view, with all due respect, they need to go to Congress, they need to go to the people’s representatives and change the law. If their view should carry the day, they need to constitutionally go to Congress and change the law,” Coleman said.

When asked what he personally thought of the issue of climate change — given the Biden administration cites it as a driving reason for pursuing these regulations — Coleman, without mentioning climate change, said “we have a duty to be good stewards of our land and our water.”

When asked about calls from the leader of the United Nations urging rich countries such as the United States to end the use of coal for electricity by 2030 and have carbon-free electricity by 2035, Coleman said there was a “disconnect” with countries like the United States being asked to “severely restrict its use of carbon fuels” while China is “building coal fired power plants at an unprecedented pace.”

One 2023 report found that China is building six times more coal-fired power plants than other countries, with the report’s authors saying the push for new coal being driven by the need for electricity created by a drought and a historic heat wave in 2022 that increased the demand for air conditioning. Scientists say that the heat wave’s likelihood was increased by climate change.

The International Energy Agency in 2022 affirmed again that no new “unabated” coal-fired power plants can be built if the Paris Agreement’s goal of keeping global temperature increase to 1.5 degrees Celsius below pre-industrial temperature levels is to be met.

Wilmes said she believed the EPA with its new power plant regulations wrote “very defendable rules” but that “you just never know” what will ultimately happen given future litigation.

“We knew we were going to see challenges to these rules,” she said.

While Republican West Virginia Attorney General Patrick Morrisey has already said he’ll challenge the power plant rules, Coleman told the Lantern to “stay tuned” and that any challenge to federal rules wouldn’t be done alone.

“It is always a couple of dozen, the heft of a couple of dozen states pushing back on what we’re seeing coming out of the Biden administration,” Coleman said. “I deeply respect clean water, and clean air. This is a policy disagreement.”

Ky. AG gets funding to fight Biden administration on issues (2024)
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