Despite a long losing streak in judicial suits involving the Clean Power Plan, WV Attorney General Patrick Morrisey and 24 other state attorney generals are trying an even more unlikely-to-win tactic -- going directly to the Supreme Court. As The Hill reported on Wednesday:
The state attorneys general leading the court fight against President Obama’s landmark climate change rule say they are optimistic that their unusual legal strategy will work.
While admitting that asking the Supreme Court to block the rule before a lower court decision is a gamble, the officials for West Virginia and Texas say their argument is sound.
“We acknowledge that an application for a stay at this stage isn’t typical,” West Virginia Attorney General Patrick Morrisey (R) told reporters Wednesday.
“But what the EPA has done here is literally unprecedented, and they’re acting in a manner that’s clearly in violation of the rule of law, and recent Supreme Court cases,” he said.
Here's the reaction from the National Resources Defense Council's blog. (It's admittedly a biased source but it summarizes the situation well):
The polluters and their allies face many obstacles. A stay is extraordinary relief rarely granted even at the appeals court level. The appeals court weighed the arguments and the evidence and said no. It would be extra, extraordinary to get a stay now from the Supreme Court Justices, who view their job as reviewing decisions of the lower courts and correcting major errors, not making those decisions in the first instance.
Justices will be reluctant to jump in on the legal questions (Does the Clean Air Act authorize the Clean Power Plan?) before the appeals court has had its say. And they will be even more reluctant to jump in on the factual questions (Is a regulation coming into effect only in 2022 causing any irreparable harm now? And what about harm to others or to the public interest?) that the D.C. Circuit has already weighed and measured.
Given the financial state of the state, why is our attorney general using increasingly-limited state resources on yet another losing lawsuit? (Note -- this is not a trick question.)