Earlier this week, Gov. Matt Mead announced that Wyoming will sue the U.S. Environmental Protection Agency for its failure to act on a state plan to curb lead pollution.
The case itself is largely procedural. States are required under the Clean Air Act to develop plans to limit pollutants like lead, which the EPA then approves or denies.
The federal agency failed to do that in the 18 months after Wyoming submitted its plan. The state contends this violates the law.
Of more importance was what Mead’s announcement signaled. Wyoming and the EPA are increasingly at war.
None of the other five Western states in the EPA’s Region 8 have brought a so-called deadline case against the agency. The lead lawsuit marks Wyoming’s second.
Wyoming has filed or been involved in 12 cases in which the state has found itself in conflict with the EPA during Mead’s tenure.
In one instance, Wyoming challenged the EPA’s argument that the agency’s right to regulate greenhouse gases from automobiles meant it could also regulate greenhouse gases from power plants.
In another, it joined 22 other states in seeking to overturn EPA’s limits on mercury emissions. Wyoming lost both cases in the U.S. Court of Appeals District of Columbia Circuit.
The first ruling was stayed while the U.S. Supreme Court considers the question of greenhouse gas emissions from power plants nationally. Wyoming and the other states are deciding whether to appeal the second.
Mead, a former U.S. attorney, says he is acting in the state’s interest by defending a coal industry under attack by the federal government.
“Those are things that cause us to lose jobs, to lose revenue at the local level and the state level,” the governor said in an interview with the Star-Tribune. “I just feel very committed that Wyoming has to fight back.”
But some legal experts and environmentalists question whether Mead is trying to defend the state’s interests or merely score political points with his base.
Mead, a Republican, is running for re-election this year and faces a challenge from his right in the GOP primary, most notably from Wyoming Superintendent of Public Instruction Cindy Hill.
The four cases in which Wyoming has filed briefs supporting parties seeking to overturn EPA regulations under Mead are particularly notable for potential political opportunism.
These so-called amicus briefs require fewer resources because Wyoming is not a party in the case but is merely voicing its support for EPA opponents.
Wyoming is supporting Oklahoma in its bid to overturn the EPA’s regional haze plan for the Sooner State. Another concerns the EPA’s rule on the amount of nutrients that can be dumped into Chesapeake Bay. Wyoming is supporting the Farm Bureau’s challenge in that instance.
A third such case was resolved this week by the U.S. Supreme Court, which rejected industry groups' attempt to strike down the EPA’s plan to regulate cross-state pollution from coal-fired power plants. Wyoming submitted a brief in support of industry.
“I’m not sure why they joined the lawsuit,” said Mark Squillace, a professor of natural resource law at the University of Colorado at Boulder.
He added that it seemed as if the state was trying to put a “stick in the eye of EPA.”
The problem of interstate pollution is complex, Squillace said. The EPA rule calls on states to reduce pollution based on the amount of harmful emissions their power plants produce.
Industry had argued that the EPA needed to pinpoint specific sources of pollution instead of requiring across-the-board emission curbs. But that would have been nearly impossible for the agency, Squillace said, noting that the court found that the EPA’s solution was reasonable, given the complexity of the issue.
States would be better served by trying to work through those issues rather than litigate them, he argued.
“I wish the states would be more sensitive to the complexity of the problems EPA has to deal with,” Squillace said. “If they were, they’d be a little more (reluctant) to file these lawsuits.”
Shannon Anderson, a lawyer for the Powder River Basin Resource Council, noted that the EPA is expected to announce new rules on carbon emissions from existing coal-fired power plants, perhaps as early as next month.
Air quality regulations are inherently complex, and different parties can reasonably be expected to draw differing conclusions about whether they adhere to the law or not, she said.
Nonetheless, Wyoming would be better-served if its leaders worked with regulators to shape new rules rather than fight them.
“Let’s be the leader. Let’s not drag our feet and instead say this is how we are going to meet carbon standards,” Anderson said. “We know it’s coming. We are a heavily reliant coal state in terms of domestic population’s employment and where we send our power. Wyoming has the most to gain from being proactive and involved as opposed to fighting.”
An EPA spokeswoman said the agency does try to work with states on their plans to reduce air pollutants and haze. At the same time, the number of lawsuits filed against the EPA has increased in recent years, not only by states but also by environmental and industry interests, said Paula Smith, a Region 8 spokeswoman.
Wyoming is different from many states in that the governor appoints the attorney general. Mead said he consults his attorney general, Peter Michael, on whether a case he wants to bring has legal merit and should be fought.
Among the other lawsuits Wyoming has joined is a case in which WildEarth Guardians, an environmental group, is arguing that the state’s plan to limit sulfur dioxide doesn’t met EPA standards. Wyoming has intervened in the case to defend its plan.
The state is also challenging the EPA’s recent regional haze plan for Wyoming. That plan is intended to reduce smog. The EPA accepted parts of the state plan but rejected others in requiring that more pollution controls be installed at coal-fired power plants in the state.
Mead’s argument: Those controls will cost a lot and do little to reduce haze.
“It is not just a question of resources in terms of the attorney general’s office. To me, it’s also a question of credibility,” the governor said. “Let’s say there are a thousand cases out there, and we’re involved in each of them. It dilutes (our position).
"If everything is a priority, then nothing is a priority. If you look through that list of cases, my belief is that we are involved in those things we need to. If it is ruled the wrong way, it will have an adverse impact on our citizens.”
The governor said the state attempts to first resolve its policy disagreements with the federal government through negotiation. One-on-one meetings between him and former Interior Secretary Ken Salazar produced an agreement on delisting wolves from the endangered species list, he pointed out.
And he noted that while he often has “contentious” policy disputes with members of President Obama's Cabinet, his personal relationships with federal officials are cordial.
“We certainly don’t want to be heading to litigation based on a misunderstanding or a failure to understand each side’s point of view. We do try to do that,” Mead said. “Sometimes we have success, but when we don’t, then we’re left to litigation.”
An earlier version of this story misidentified the Attorney General Peter Michael.