WV's leaders heading pushback against Biden climate policy

But Hamilton takes heart in how West Virginia’s most powerful state and federal representatives have fought Biden’s climate plans so far.

“We’re just seeing the whole delegation expressing concern, pointing to the percentage of our state that relies on fossil energy and how big of a role fossil energy means in our local and statewide economies,” Hamilton said.

It only took a week after the White House’s commitment on Earth Day to slashing emissions in half from 2005 levels by 2030 for West Virginia Attorney General Patrick Morrisey to file a petition on behalf of 18 states won by Donald Trump in the 2020 presidential election urging the U.S. Supreme Court to limit the U.S. Environmental Protection Agency’s authority.

Morrisey’s office argued in a press release highlighting the petition that the U.S. Court of Appeals for the District of Columbia Circuit’s Jan. 19 ruling throwing out a Trump administration rule that weakened power plant greenhouse gas emissions standards risks giving the EPA “virtually unlimited authority to regulate wide swaths of everyday life ... devastate coal mining, increase energy costs and eliminate countless jobs.”

That decision has left it to the Biden administration to create a new rule from scratch.

Morrisey led a lawsuit on West Virginia’s behalf in 2016 challenging an Obama-era rule that strengthened power plant emissions standards that resulted in the Supreme Court putting the Obama rule on hold for the rest of his administration, which was aiming to reduce greenhouse gas emissions 32% below 2005 levels by 2030.

“We applaud Attorney General Morrisey’s efforts,” Hamilton said. “He’s been a real champion of coal in West Virginia.”

“He is tenacious in his desire to protect the state of West Virginia and to protect those industries in West Virginia that provide energy, coal, oil and natural gas,” Charlie Burd, executive director of the Gas and Oil Association of West Virginia, said of Morrisey.

But Morrisey hasn’t been alone in fighting the Biden administration.

‘What core infrastructure means to you’

U.S. Sen. Shelley Moore Capito, R-W.Va., the top-ranked Republican on the Senate Committee on Environment and Public Works, has led a group of Senate Republicans pushing a $568 billion counterproposal to Biden’s sweeping $2.2 trillion jobs and infrastructure plan that would limit investment priorities to traditional travel infrastructure like roads and bridges plus broadband, water and wastewater improvements.

“We are very different, I think, when you look at what core infrastructure means to you,” Capito said during a Republican press conference on infrastructure last month.

The Biden plan, which the White House has dubbed the American Jobs Plan, would set aside $16 billion for cleaning up abandoned mines and plugging abandoned oil and gas wells. But the Capito-backed GOP proposal would not include funding for abandoned mine and well remediation or other Biden-proposed investments in retrofitting homes and commercial buildings, building a national network of 500,000 electric vehicle chargers by 2030 or deploying technology to transport carbon dioxide from sites of capture to locations where it can be either used in manufacturing or sequestered safely underground.

Carbon capture and storage technology has been viewed as a way to keep coal in the energy mix amid the country’s shift away from coal and toward reducing emissions.

Biden has argued that his plan would create millions of jobs and avoid leaving communities impacted by the nation’s market-based energy transition behind by investing in them.

But Sen. Joe Manchin, D-W.Va., has balked at Biden’s jobs and infrastructure proposal for including a corporate tax hike from 21% to 28%, arguing that such an increase would be too steep and favoring a 25% corporate tax rate instead. Biden has since expressed openness to a 25% corporate tax rate to fund his infrastructure proposal, underscoring the leverage that Manchin has as a swing voter in an evenly divided Senate.

Manchin has helped block the Biden agenda in the administration’s first 100 days by dismissing calls to curb the filibuster and suggested breaking up Biden’s infrastructure proposal into separate, more targeted bills, a move that would jeopardize the proposal’s climate-focused provisions.

New West Virginia state Treasurer Riley Moore criticized John Kerry, Biden’s appointed special presidential envoy for climate, in an emailed statement Thursday, citing a Politico report from March that Kerry was pushing major U.S. banks to commit to clean energy lending commitments and a net-zero emissions banking alliance.

“[This is] part of a misguided strategy to eliminate the fossil fuel industry in our country,” Moore said. “... If [banks or financial institutions] do not wish to do business with our people, then it’s only logical that we do not contract with them for our people’s business.”

Hamilton says that West Virginia’s leaders are doing a better job now defending the coal industry than they did early in the Obama administration.

“They clearly are at this point in time,” Hamilton said. “They know what’s coming. Forewarning is fair warning.”

Early in Obama’s first term, then-Sen. Robert C. Byrd, D-W.Va., declined to cosponsor legislation from fellow West Virginia Democratic Sen. Jay Rockefeller that sought to delay any federal limits on greenhouse gas emissions for two years. Byrd warned in a 2009 op-ed that West Virginia would have to adapt to federal climate legislation, embrace energy innovation and accept a declining demand for coal as power plants planned to reduce emissions.

“[W]hen coal industry representatives stir up public anger toward federal regulatory agencies, it can damage the state’s ability to work with those agencies to West Virginia’s benefit,” Byrd wrote.

‘Consolation prize’

West Virginia’s benefit has been the focus of several Biden administration moves in recent weeks.

A group created by Biden to address climate change released a report last month identifying Southern West Virginia as the area of the country most in need of focused federal investment because of its high dependence on coal and coal power plant jobs.

The Interagency Working Group responsible for Friday’s report, co-chaired by National Economic Council Director Brian Deese, National Climate Adviser Gina McCarthy and administered by U.S. Energy Secretary Jennifer Granholm, highlighted the 25 U.S. Bureau of Labor Statistics areas of the country most affected by coal-related declines.

Five of them are in West Virginia: Southern West Virginia nonmetropolitan (No. 1); Wheeling (No. 3); Northern West Virginia nonmetropolitan (No. 11); Beckley (No. 23); and Charleston (No. 24). Eastern Kentucky nonmetropolitan and Southwest Virginia are No. 2 and No. 4, respectively.

The group recommended prioritizing these areas in the near term for investment using existing federal agency programs and funding from the fiscal year 2021 budget and federal COVID-19 stimulus package that Biden signed into law last month.

U.S. coal mining employment plummeted from more than 175,000 in 1985 to roughly 40,000 in 2020, according to the report — a 77% drop.

The U.S. Department of Energy last month announced $15 million for geothermal energy research projects at West Virginia University and Sandia National Laboratories.

Also last month, the EPA selected West Virginia University Research Corporation, a nonprofit that supports research at the university, to receive $1 million total over a five-year period to provide technical assistance mainly to underserved and economically disadvantaged neighborhoods in the EPA’s Mid-Atlantic Region (West Virginia, Delaware, Maryland, Pennsylvania, Virginia, the District of Columbia and tribal lands) where environmental cleanup and new jobs are deemed lacking.

“With respect to some of the activity and efforts to revitalize former coal towns, [it’s like] a consolation prize,” Hamilton said.

But clean energy advocates see moves like Morrisey’s to block federal efforts to fight the climate crisis as doubling down on a losing hand — and a defeat that would reverberate for generations to come.

“It’s stupid,” said Allan Tweddle, a Charleston-based industrial engineer and former Manchin appointee to the long-dormant state Public Energy Authority board. “... Climate change is very, very real, and if we don’t reverse it, all our children aren’t going to have an environment they can live in.”

James Van Nostrand, director at the West Virginia University College of Law Center for Sustainable Development, doesn’t expect the Supreme Court to review the Morrisey-led petition.

Neither does Patrick A. Parenteau, a law professor in the Environmental Advocacy Clinic at Vermont Law School, saying that the court wouldn’t rule on the scope of the EPA’s authority with no new emissions rule formally proposed by the Biden administration.

“The Court doesn’t issue that kind of advisory opinion,” Parenteau said in an email. “Of course, this is a new more conservative court so anything is possible. But there is no reason for the Court to spend time on a petition that isn’t ripe.”

But the Trump administration’s Affordable Clean Energy rule on emissions that Morrisey led a multistate coalition in support of before it was thrown out in January would have done little for coal production in Appalachia, according to the EPA’s own 2018 analysis of the rule’s proposed emission guidelines.

The analysis suggested that coal production in Appalachia would actually be lower in 2035 under the Affordable Clean Energy rule (41 to 43 million short tons) than it would have been under the Obama administration’s Clean Power Plan emissions rule (around 47 million).

Litigation before the Supreme Court won’t change the market trends indicating that coal’s continued decline is inevitable.

U.S. renewable energy production surpassed U.S. coal production for the first time in 2019 since before 1885, according to the U.S. Energy Information Administration, citing the rise of wind and solar in the electric power sector as they get cheaper to use and natural gas displacing much of the electricity generation from retired coal plants.

There have been 10 conventional steam coal plants retired in West Virginia since 2005, and there are only nine left in the state, according to Energy Information Administration data.

Readying for renewables

In jeopardy of an early retirement is American Electric Power’s Mitchell coal-fired generating facility in Marshall County. American Electric Power subsidiaries Appalachian Power and Wheeling Power said in a pending case they filed with the state Public Service Commission in December that they are considering shuttering the facility in 2028, 12 years ahead of schedule, as they weigh whether to make an additional investment to ensure the plant complies with federal guidelines limiting wastewater to continue operating beyond that year.

The West Virginia Coal Association, the state Attorney General’s Office, the Marshall County Commission and local unions and residents have filed petitions in support of keeping the facility open, fearing the adverse economic impact of shutting it down.

There were 214 people employed at the Mitchell plant that were compensated a combined $26.8 million in wages in 2020, according to a filing by the utilities.

But in a first-quarter earnings call the same day as the White House announced its greenhouse gas emissions goal, AEP chairman, president and CEO Nick Akins touted the company’s goal of an 80% reduction in carbon emissions by 2030.

“[T]he work really starts now regarding the execution of our plan to transform this company from what was the largest coal-fired utility to one of the largest regulated renewable companies in the U.S.,” Akins said.

Coal-fired electric power plants accounted for 91% of West Virginia’s electricity net generation in 2019. But coal accounted for just 23% of the nation’s net electricity generation overall last year, according to the U.S. Energy Information Administration.

Underscoring the key role Capito is playing in negotiations with Biden, White House Press Secretary Jen Psaki said in a press briefing Wednesday that Biden invited the senator to bring a group of her choosing to the White House next week.

“And we think there is opportunity for agreement to deliver on relief to the American people,” Psaki said.

West Virginia Rivers Coalition Executive Director Angie Rosser is hopeful that large-scale federal investment that addresses the state’s energy future and the climate crisis is closer on the horizon than the current political moment suggests.

Rosser cites the passage of a Capito-cosponsored, Manchin-supported drinking water and wastewater infrastructure bill last month that authorizes more than $35 billion for water resource development projects nationwide with a focus on upgrading aging infrastructure.

“That’s a new type of governing and understanding the value of bipartisanship that we’re hearing from both of our senators,” Rosser said. “... I’m hoping we’re entering into a new era.”