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Colorado Supreme Court rebuffs governor in dispute with attorney general over EPA’s Clean Power Plan

Door open for Hickenlooper to independently challenge EPA lawsuit, support plan to reduce carbon emissions

December 5, 2015, 6:46 am

colorado capitolEditor’s note: A version of this story first appeared in The Colorado Statesman:

The Colorado Supreme Court on Thursday denied a petition by Gov. John Hickenlooper questioning the legality of Attorney General Cynthia Coffman joining a multi-state lawsuit to block the EPA’s Clean Power Plan.

In denying Hickenlooper’s petition by a 5-2 margin, the Supreme Court said the governor already has an “adequate alternative remedy” and cited Salazar v. Davidson, a case in which then Attorney General Ken Salazar challenged the legality of redistricting law pass by the state legislature.


Attorney General Cynthia Coffman, left, and Gov. John Hickenlooper.

However, the court wasn’t clear what Hickenlooper’s alternative remedy is if he supports the Clean Power Plan, which seeks to reduce carbon emissions by 32 percent of 2005 levels by 2030, if the attorney general opposes and challenges the legality of the EPA rule.

“The Supreme Court left undecided whether the attorney general can ​legally bring federal lawsuits on behalf of Colorado without the governor’s authority,” Hickenlooper spokeswoman Kathy Green said. “The Court did not deny the importance of this issue nor did it uphold the legality of the attorney general’s actions.

“While two justices would have had the Court decide the issue now, the other five justices declined to do so at this point because they believed the governor has ‘an adequate alternative remedy.’ We will give careful consideration to the Supreme Court’s guidance.”

In a prepared statement, Coffman called Hickenlooper’s petition a bid to “undermine the Attorney General’s independent authority to challenge the federal government in court” and once again asserted her “independent constitutional authority.”

“The roles of the governor and attorney general are separate and distinct,” Coffman said. “The two executive officers must work independently to best serve all the citizens of Colorado. I look forward to a successful working relationship with Gov. Hickenlooper while always remembering my duty to Coloradans as their lawyer.”

Twenty-six states are currently challenging the plan, which will require power plants to switch to cleaner fuel sources other than coal or face shutting down, and attorney generals from 15 other states have said they will intervene in support of the plan.

University of Colorado Law School Professor Mark Squillace, who specializes in environmental, natural resources and water law, said there’s nothing in the opinion about what Hickenlooper adequate alternative remedy is.

“I can’t image what it would be short of the governor actually intervening on his own in the case on the side opposite the attorney general, and that would strike me as highly problematic to have the state of Colorado involved on both side of the case,” Squillace said.

“It doesn’t make any sense, and so that’s why I think the court should have heard the review of this case because then at least the court would have to consider the possibility that the state is speaking out of both sides of its mouth on these issues. Either the attorney general represents the governor as the chief executive or she doesn’t.”

If Hickenlooper does intervene in support of the plan using independent counsel, Squillace added he would expect Coffman to then seek to block the governor.

Conservation Colorado Executive Director Pete Maysmith released a statement encouraging Hickenlooper to pursue all legal options.

“We are glad to see that the Colorado Supreme Court has opened the door for Gov. Hickenlooper to continue to fight for Colorado’s clean air and public health by opposing unfounded legal attacks by Attorney General Cynthia Coffman on the Clean Power Plan,” Maysmith said. “Coloradans have consistently supported acting on climate change and want to cut carbon pollution. We encourage the governor to pursue all available legal options to protect Colorado’s clean air.”

Compass Colorado put out a statement saying the court clearly ruled against Hickenlooper and in favor of Coffman, calling Green’s statement “spin.”

“Someone needs to tell Gov. Hickenlooper that the court’s denial to hear the case is a strong ‘no,’” said Kelly Maher, executive director of Compass Colorado. “The governor needs to realize that the attorney general is an autonomous statewide elected official onto herself. He doesn’t get to be the boss of everybody.”


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David O. Williams

Managing Editor at RealVail
David O. Williams is the editor and co-founder of RealVail.com and has had his awarding-winning work (see About Us) published in more than 75 newspapers and magazines around the world, including 5280 Magazine, American Way Magazine (American Airlines), the Anchorage Daily News (Alaska), the Anchorage Daily Press (Alaska), Aspen Daily News, Aspen Journalism, the Aspen Times, Beaver Creek Magazine, the Boulder Daily Camera, the Casper Star Tribune (Wyoming), the Chicago Tribune, Colorado Central Magazine, the Colorado Independent (formerly Colorado Confidential), Colorado Newsline, Colorado Politics (formerly the Colorado Statesman), Colorado Public News, the Colorado Springs Gazette, the Colorado Springs Independent, the Colorado Statesman (now Colorado Politics), the Colorado Times Recorder, the Cortez Journal, the Craig Daily Press, the Curry Coastal Pilot (Oregon), the Daily Trail (Vail), the Del Norte Triplicate (California), the Denver Daily News, the Denver Gazette, the Denver Post, the Durango Herald, the Eagle Valley Enterprise, the Eastside Journal (Bellevue, Washington), ESPN.com, Explore Big Sky (Mont.), the Fort Morgan Times (Colorado), the Glenwood Springs Post-Independent, the Grand Junction Daily Sentinel, the Greeley Tribune, the Huffington Post, the King County Journal (Seattle, Washington), the Kingman Daily Miner (Arizona), KUNC.org (northern Colorado), LA Weekly, the Las Vegas Sun, the Leadville Herald-Democrat, the London Daily Mirror, the Moab Times Independent (Utah), the Montgomery Journal (Maryland), the Montrose Daily Press, The New York Times, the Parent’s Handbook, Peaks Magazine (now Epic Life), People Magazine, Powder Magazine, the Pueblo Chieftain, PT Magazine, the Rio Blanco Herald Times (Colorado), Rocky Mountain Golf Magazine, the Rocky Mountain News, RouteFifty.com (formerly Government Executive State and Local), the Salt Lake Tribune, SKI Magazine, Ski Area Management, SKIING Magazine, the Sky-Hi News, the Steamboat Pilot & Today, the Sterling Journal Advocate (Colorado), the Summit Daily News, United Hemispheres (United Airlines), Vail/Beaver Creek Magazine, Vail en Español, Vail Health Magazine, Vail Valley Magazine, the Vail Daily, the Vail Trail, Westword (Denver), Writers on the Range and the Wyoming Tribune Eagle. Williams is also the founder, publisher and editor of RealVail.com and RockyMountainPost.com.

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