Why are Western attorneys general going rogue?

Attorneys general sue the federal government, despite state governors’ objections.

  • Colorado Attorney General Cynthia Coffman is suing the Environmental Protection Agency over the Clean Power Plan, despite Colorado Gov. John Hickenlooper’s opposing stance on the issue.

    Jon Austria/The Daily Times via AP
 

When Interior Secretary Sally Jewell announced in September that the greater sage grouse would not be listed as endangered, Nevada’s Brian Sandoval, a Republican, was one of four Western governors on the stage, applauding.

States retained management of the bird in what Sandoval described as a “big win” resulting from intense negotiations. “It’s a lot easier to fight than it is to work together,” he said. Just a month later, though, Nevada’s attorney general, Republican Adam Laxalt, defied Sandoval, joining a lawsuit challenging federal plans to protect grouse habitat. A public row ensued, with the governor’s office declaring that Laxalt was acting on his own behalf, not the state’s. Laxalt fired back with a press release calling the governor “wrong.”

Currently, two Western attorneys general are suing the federal government over high-profile environmental issues against their governors’ wishes. Colorado’s Republican attorney general, Cynthia Coffman, is suing to block President Barack Obama’s signature climate change initiative, the Clean Power Plan, despite Democratic Gov. John Hickenlooper’s explicit objections. (Update Dec. 7: The Colorado Supreme Court last week announced it would not weigh in to the dispute because there is an "adequate alternative remedy.")

Both attorneys general were elected a year ago with the support of a lot of outside money, signaling big donors’ appreciation for the importance of these offices, as states push back against the federal government. “There is a perception that the (Obama) administration is  running roughshod over states’ interests,” says Idaho Attorney General Lawrence G. Wasden, especially in Western states, where large portions of the land and resources are owned and managed by the federal government.

The Democrats view things differently: “There are several attorneys general who seem to see themselves as partisan warriors,” says Matt Lee-Ashley, director of public lands at the Center for American Progress, a liberal think tank. “They are so determined to boost their political profile and grab headlines that they’re willing to undercut their own state’s leadership.”

In Nevada and Colorado, the governors are challenging the legitimacy of the lawsuits and the authority of their attorneys general, who act as chief lawyers for governors and state agencies as well as top law enforcement officials. While such public disputes are infrequent, they’re not unheard of, because in most states, governors and attorneys general are elected separately. In purple states like Colorado, New Mexico and Nevada, it’s not uncommon for the two to be from different parties.-

Colorado Gov. Hickenlooper says Coffman is exceeding her authority. “The law makes it clear that except in limited circumstances — which don’t exist here — the attorney general is not permitted to file such lawsuits unless directed to do so by the governor,” Hickenlooper declared. He has said he will petition the state Supreme Court to weigh in. Former Colorado Attorney General Ken Salazar, who served as Obama’s first Interior secretary, says that Colorado law requires the attorney general to support the governor unless the governor’s position is “clearly unlawful.”

Coffman, meanwhile, says she is doing her duty by joining 23 other states in suing the Environmental Protection Agency over the first-ever federal greenhouse gas rules for existing power plants. She claims that the rules will cost jobs and usurp state authority, and that she has the power to decide what is in her state’s interest, regardless of the governor’s stance. “The Colorado attorney general has independent authority to initiate a legal action on behalf of the state and its citizens,” she declared.

In Nevada, Laxalt says he is looking out for the state’s legal interests by backing a suit filed by two counties over a federal plan to set aside habitat for sage grouse and also prohibit new hardrock mining across nearly 3 million acres. “It’s my job as the elected attorney general to decide when it’s right for the state to be in litigation,” Laxalt told KNPR radio.

Sandoval says that his fellow Republican’s action does not represent Nevada, its governor, or state agencies. He also -argues that only by working with the federal government were Western states able to avoid Endangered Species Act listings of the greater and the bi-state sage grouse. He shares his attorney general’s concern about development restrictions on BLM lands, but believes that collaboration, not litigation, is the best way to get more flexible terms for the bird’s conservation.

The back-and-forth between Laxalt and Sandoval has been especially sharp. Lawrence Wasden, Idaho’s attorney general and chair of the Conference of Western Attorneys General, says disputes between attorneys general and governors are often most intense when the two belong to the same party. “There’s an expectation that the attorneys general should get in line. When they don’t do that, that becomes a bitter battle.”

The current divisions in the Republican Party make such internecine battles increasingly likely. For instance, some Western Republicans want to file lawsuits claiming federal lands for their states, while others argue that the states agreed to the current arrangement when they joined the union. As the struggle over the vision for federal lands and the nation’s energy future intensifies, more disputes are sure to come.