Hickenlooper to challenge attorney general’s Clean Power Plan lawsuit

Source: By Jesse Paul, The Denver Post • Posted: Monday, November 9, 2015

Gov. John Hickenlooper said he will seek the state Supreme Court’s opinion on the legality of Attorney General Cynthia Coffman’s  lawsuit to stop implementation of the Clean Power Plan.

“This notion of everyone suing all the time every time you disagree with a specific remedy, a specific statute, is part of what makes people so frustrated with government,” Hickenlooper, who supports the plan, said in a meeting with The Denver Post’s editorial board.

The Democrat says he is particularly worried about Coffman’s lawsuit because it could impede the state’s ability to develop and execute strategies to meet the emission  plan’s mandates. He said the Republican’s decision politicizes the issue and amounts to her trying to derail the initiative.

The  Clean Power Plan targets existing coal-burning power plants to cut carbon emissions nationwide by 32 percent before 2030 against 2005 levels. In Colorado, the plan calls for a 28 percent reduction in overall carbon dioxide emissions by 2030 against 2012 levels.

Federal officials contend the plan can help leverage the international adoption of similar rules. Detractors have called the initiative a “war on coal” that could have crippling economic impacts.

“Except in very rare circumstances, generally the governor is supposed to make that decision in concert with the attorney general,” Hickenlooper said of the lawsuit. “But the governor should have that final say.”

Coffman says her office is one of 24 states  filing a lawsuit together against the Environmental Protection Agency’s plan touted by President Barack Obama as an important step against climate change. Her contention is the initiative is illegal because of conflicts with the Clean Air Act and that it represents overreach by the federal government.

Colorado Attorney General Cynthia Coffman talked to The Denver Post from the State Supreme Court Chambers at the Colorado State Judicial Building in Denver

Colorado Attorney General Cynthia Coffman talked to The Denver Post from the State Supreme Court Chambers at the Colorado State Judicial Building in Denver on Thursday, October 22, 2015. (Cyrus McCrimmon, The Denver Post)

“With (former) Attorney General (John) Suthers, we sat down pretty much every time any issue came up, and we worked through it,” Hickenlooper said, adding that Coffman did not consult him before filing the suit.

However, Suthers did  sue to stop Obamacare and defended Colorado’s  same-sex marriage ban in opposition to Hickenlooper’s views.

Hickenlooper’s office says it has not finalized how or when it will appeal to the state Supreme Court for clarification, but that the basis for its question lies in Coffman’s ability to act independently of the governor.

“The statute that we’re looking at speaks of prosecuting and defending on the request of the governor,” said Jacki Cooper Melmed, Hickenlooper’s chief legal counsel, citing Colorado’s revised statutes, title 24, article 31, part 1.

Cooper Melmed said she is worried about conflicts as some Coffman deputies work with Hickenlooper’s administration to implement the plan while others in the attorney general’s office try to quash it.

“This just gets in the way,” Cooper Melmed said of the lawsuit. “There’s no wall really high enough to allow these two things to happen out of the same office.”

Coffman has repeatedly said the lawsuit will not work against the governor’s ability to meet the power plan’s requirements.

“I am disappointed to learn (Hickenlooper) is taking this course,” Coffman said in a statement Tuesday. “This is not in the best interest of Colorado or Coloradans, who elected each of us to serve different roles within our system of checks and balances.”

Coffman said the governor is departing from past examples during his tenure of dealings with the attorney general’s office.

“The governor’s action is an expression of his frustration with the legal challenges I have filed against the federal government,” she added. “I am pursuing those challenges because it is my responsibility as the independently elected attorney general to serve as a check against the abusive, unlawful exercise of federal power over the lives of Colorado’s citizens.”

Gale Norton, a Republican who served as Colorado’s attorney general from 1991 to 1999 under Democratic Gov. Roy Romer, said disagreements between the two government branches are typical. She said Hickenlooper’s response in this case, however, is outside the norm.

“For the governor to try to challenge in this way is unusual,” Norton said.

In almost all cases where a governor challenges an attorney general, Norton said, rulings are in the attorney general’s favor.

“The attorney general represents the state and not the governor,” Norton said. “The attorney general is elected to provide independent representation of the state’s interest.”

The governor of Michigan has also said he will work to comply with the new EPA rules, even as the attorney general from his state has joined the lawsuit, The Associated Press reports.

The disagreement sets up a deep partisan political split and face-off between the attorney general and governor after years of the two offices working closely together.

Tom Cronin, a Colorado College political science professor, said Hickenlooper worked well with former Attorney General Suthers before he left office last year. The matchup between Coffman and Hickenlooper, he says, appears much different.

“She’s a forceful, strong person,” Cronin said.

Eric Sondermann, an independent political analyst in Denver, said that although the contention does not represent an irreparable breach for Hickenlooper and Coffman’s relationship, it could be a sign of things to come. “The two of them will have to figure out if this will be the norm — whether this is, in effect, a raised middle finger,” he said.

The state’s big energy companies say they are well on their way to meeting —  and potentially exceeding — targets set in the plan.

Colorado lawmakers under a Clean Air, Clean Jobs Act in 2010 required regulated utilities to develop plans for reducing air pollution. These plans launched utilities on efforts to replace coal plants with energy generated using renewable sources and natural gas.

Jesse Paul: 303-954-1733, jpaul@denverpost.com or @JesseAPaul

24-31-101. Powers and duties of attorney general

(1) (a) The attorney general of the state shall be the legal counsel and adviser of each department, division, board, bureau, and agency of the state government other than the legislative branch. He shall attend in person at the seat of government during the session of the General Assembly and term of the Supreme Court and shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor, and he shall prosecute and defend for the state all causes in the appellate courts in which the state is a party or interested.

(b) It is the duty of the attorney general, at the request of the governor, the secretary of state, the state treasurer, the executive director of the department of revenue, or the commissioner of education, to prosecute and defend all suits relating to matters connected with their departments. When requested so to do, he shall give his opinion in writing upon all questions of law submitted to him by the General Assembly or either house thereof or by the governor, lieutenant governor, secretary of state, executive director of the department of revenue, state treasurer, state auditor or commissioner of education.