CHARLESTON, W.Va. — Even without late U.S. Supreme Court Justice Antonin Scalia, Patrick Morrisey, West Virginia’s attorney general, remains confident legal challenges against the Environmental Protection Agency’s Clean Power Plan will prevail.
“Timing is everything and, obviously, we’re appreciative that we do have a stay,” Morrisey said of the likelihood that there would have been no 5-4 stay from the U.S. Supreme Court for the Clean Power Plan, temporarily delaying its implementation, if Scalia had died five days earlier.
“Many West Virginians should be proud of the legacy of the Justice Scalia because his decision has given a monumental victory to the state — one of the single most important wins for the state of West Virginia in decades.”
Scalia died Saturday at the age of 79.
Prior to his death, he voted with the majority for the stay that remains in effect until the U.S. Supreme Court rules on the merits of the EPA’s regulations or a new president withdraws them.
In June, the U.S. Court of Appeals in the D.C. Circuit is scheduled to hear arguments on legal challenges from West Virginia, nearly 30 other states and Murray Energy on the EPA’s proposed emissions limits for existing coal-fired power plants.
The new limits in the Clean Power Plan are designed to reduce carbon emissions from existing coal-fired power plants by 30 percent on average, compared with 2005 levels, before 2030.
Within it, states are charged with developing their own pathways to get to established individualized emissions limits or targets.
“I still think our arguments are compelling,” said Morrisey who’s maintained the EPA’s regulations are illegal and violate provisions in the Clean Air Act.
The earliest the Clean Power Plan case could make it to the U.S. Supreme Court would be the 2017 spring term.
If a new Supreme Court justice will be confirmed by then is anyone’s guess right now.
In a statement, U.S. Senator Shelley Moore Capito (R-W.Va.) said the next president should nominate Justice Scalia’s replacement.
U.S. Senator Joe Manchin (D-W.Va.), though, is among those calling for the U.S. Senate to consider a nominee or nominees from President Barack Obama in this election year.
“It has never been a consideration for a president not to be able to recommend,” Manchin said on Tuesday’s MetroNews “Talkline.”
“I’m anxious to see if there’s some good people out there that brings constitutional strength to the law and their past performances, that would be somebody worth considering. If not, we’ll keep voting until we find person or it might go into the next election, but it shouldn’t just be put on hiatus just because it’s a political year.”
Manchin said he’s “not afraid to make a decision.”
Some of those named nationally as possible replacements for Scalia include the following:
– Judge Sri Srinivasan, 48, from the U.S. Court of Appeals for the Washington, D.C. Circuit
– Judge Patricia Millett, 52, who also serves on the U.S. Court of Appeals for the Washington, D.C. Circuit.
– Judge Paul Watford, 48, who sits on the U.S. Court of Appeals for the 9th Circuit
– Judge Jacqueline Nguyen, 50, who sits on the U.S. Court of Appeals for the 9th Circuit
– California Attorney General Kamala Harris, 51, who is currently running for the U.S. Senate
Morrisey said the next Supreme Court justice, whoever that may be, will never be able to fully replace Scalia.
“Everyone, regardless of where you stand on Justice Scalia’s judicial philosophy, recognized that he was a legal powerhouse,” said Morrisey, noting Scalia’s impact on the U.S. Supreme Court.
Of the Clean Power Plan case specifically, “I don’t discount the loss of his strength on the Court going forward. I still think, though, we have really compelling arguments and that’s what we’re going to focus on,” Morrisey said. “I’d rather be in our position than the EPA’s.”