Josh Kurtz: Keeping It Clean

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When Maryland Attorney General Brian Frosh (D) announced last week that he was joining an effort by 17 other states to defend the Environmental Protection Agency’s Clean Power Plan, he became the third attorney general in the country to break with his governor on litigation involving President Obama’s signature climate policy.

Gov. Larry Hogan (R) has signaled his opposition to Frosh’s move – though not, necessarily, to the new federal policy, which assigns each state a specific goal for dramatically reducing power plant emissions. The state is almost certain to comply with the EPA rule – and Maryland’s task should be easier than many other states’, thanks in part to clean energy policies that were enacted before Hogan took office.

The legal disagreement is something else. Frosh is the state’s lawyer – and the AG’s office is the Hogan administration’s law firm, so to speak.

But by tradition and by law, Frosh is given a tremendous amount of leeway in the legal cases his office is able to join. He cannot, however, initiate a lawsuit without the governor’s approval. In this case, he is joining an effort led by New York Attorney General Eric Schneiderman (D) to intervene in defense of the EPA in a lawsuit seeking to kill the power plan rule.

The situation in Maryland is similar to what’s taking place in Iowa, where Attorney General Tom Miller (D) has joined the pro-EPA legal maneuver, even though Gov. Terry Branstad is a Republican who has criticized many Obama administration environmental priorities.

“That’s happened on occasion in the last few years, which is not surprising,” Miller said last week. “We’re in different parties and have different views on issues, particularly on relationships with the federal government.”

Conversely, in Colorado, Attorney General Cynthia Coffman (R) has joined the lawsuit of 27 states seeking to overturn the Clean Power Plan – a move that has been roundly criticized by Gov. John Hickenlooper (D). The situation in Colorado is a little more contentious than it is in Maryland; Hickenlooper has asked the state Supreme Court to affirm that he, rather than Coffman, has the final say on the state’s Clean Power Plan compliance.

A rule governing power plant emissions may sound like a snoozer, full of unfathomable technicalities – and in a way it is. But it is also critically important.

The U.S. is using the goals laid out for reducing carbon emissions in the EPA rule as the basis for negotiating an international climate treaty in early December – more technical stuff, but also critically important. China and India, which along with the U.S. are the world’s biggest emitters, have for the first time also agreed to significant carbon reductions.

Which doesn’t mean that a climate treaty is sure to be signed. Negotiations at the Paris climate talks could fall apart in myriad ways.

And there’s no guarantee the Clean Power Plan is going to remain the law of the land in the U.S. At a time when a generation of Republican politicians has shrugged off the threat of global warming, the GOP is trying to kill the rule, legislatively and in the courts.

The most brazen Republican has been U.S. Senate Majority Leader Mitch McConnell, who has advised states to “just say no” rather than begin the process of complying with the power plant rule. His theory is that the rule will eventually be killed in the courts, so why should states bother? (Even though, under the rule, EPA will develop a plan for a state to meet the requirements of the regulation, if the state won’t do so on its own.)

If a liberal Democratic elected official were advising state governments to defy federal law, it is easy to imagine Republicans and right-wing commentators calling that person a traitor. But instead McConnell is hailed as a hero by the coal industry and many fellow Republicans, even as government bureaucrats – even in states that are suing to kill the Clean Power Plan – are beginning to figure out ways to comply with the carbon rule.

This serves as a reminder that the 2016 national elections hold peril for Hogan as he charts his reelection in 2018. In a Democratic state, Hogan has masterfully built and maintained his own brand, separate and distinct from the conservatives running the GOP in Congress and in many states.

Republicans are almost certain to nominate a climate denier for president next year – and someone whose publicly stated views on a range of issues are considerably farther to the right of Hogan’s. Will Hogan be able to distance himself sufficiently?

Even with his decision when he took office to slow down regulations on air pollution and farm runoff that had been developed under his predecessor, former Gov. Martin O’Malley (D), Hogan has a reasonably good relationship with Maryland environmentalists so far. At the Maryland League of Conservation Voters annual dinner late last month – where EPA Administrator Gina McCarthy was the keynote speaker, rallying the troops in support of the Clean Power Plan and other Obama green initiatives – Ben Grumbles, Hogan’s secretary of the Environment, received a warm ovation.

It is widely and correctly assumed that the fossil fuel industry has unlimited resources to invest in political fights like the one raging over the Clean Power Plan and now has many elected officials in its back pocket.

But there’s plenty of money on the green side as well, including Michael Bloomberg and former investment banker turned climate activist Tom Steyer, who spent more than $50 million on the 2014 elections. Late last week, Bloomberg announced that he would spend $10 million in ads attacking four attorneys general who have joined the lawsuit seeking to derail the Clean Power Plan – a Democrat in Missouri who is running for governor next year, and Republicans in Florida, Michigan and Wisconsin.

So in the scheme of things, a mild disagreement between Frosh and the Hogan administration over the state’s legal posture on the Clean Power Plan may seem like a blip or a technicality. But clearly there's much more at stake.


Josh Kurtz is editor of Environment & Energy Daily, a Capitol Hill publication. He can be reached at . Follow him on Twitter -- @joshkurtznews

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Josh Kurtz has been writing about Maryland politics since late 1995. Louie Goldstein, William Donald Schaefer and Pete Rawlings were alive, but the Intercounty Connector, as far as anyone could tell, was dead.

But some things never change: Mike Miller is still in charge of the Senate. Gerry Evans and Bruce Bereano are among the top-earning lobbyists in Annapolis. Steny Hoyer is still waiting for Nancy Pelosi to disappear. And Maryland Republicans are still struggling to be relevant.

The media landscape in Maryland has changed a lot, and Kurtz is happy to write weekly for Center Maryland. He's been writing a column for the website since it launched in January 2010.

In his "real" job, Kurtz is editor of Environment & Energy Daily down on Capitol Hill. But he'll always find Maryland politics more fascinating.

Kurtz grew up in New York City and attended public schools there. He has a BA in History from the University of Wisconsin and an MS in Journalism from Columbia University. He's married with two daughters and lives in Takoma Park, Md. He hopes you'll drop him a line, or maybe go out for a meal with him, because he's always hungry -- for political gossip.