Colo. AG Defends Authority to Sue Over Clean Power Plan

By Andrew Childers

Nov. 23 — The Colorado attorney general's authority to challenge the Environmental Protection Agency Clean Power Plan over the objections of the governor is well established, Attorney General Cynthia Coffman (R) argued to the state Supreme Court.

Coffman urged the state Supreme Court to dismiss the lawsuit brought by Gov. John Hickenlooper (D) because it would undermine the executive independence of the attorney general's office and its ability to bring lawsuits on the state's behalf.

“It is unsurprising that the governor would seek the right to veto the attorney general's independent legal judgments after courts have held that federal policies he has supported are likely based on unlawful assertions of federal power,” Coffman said in a reply brief filed Nov. 20. “But changes to our plural executive system must be made by the people or the legislature, not through an original proceeding brought by a governor who disagrees with the legal decisions of an attorney general from an opposing political party.”

Hickenlooper brought the lawsuit against Coffman Nov. 4 in an attempt to prevent the attorney general from challenging the Clean Power Plan (RIN 2060-AR33; 80 Fed. Reg. 64,661), which sets carbon dioxide emissions limits for the power sector in each state. The rule has divided governors and attorneys general who disagree over how to respond to the rule (216 ECR 216, 11/9/15).

The attorneys general of more than half the states, including Colorado, have already filed lawsuits seeking to overturn the EPA rule (West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15).

(Michael Bloomberg, founder of Bloomberg L.P., Bloomberg BNA's parent company, has launched an advertising campaign that targets the attorneys general of four states for their opposition to the Clean Power Plan.)

Coffman Cites Precedent

Coffman argues the Colorado Supreme Court has already resolved the issues at the core of Hickenlooper's lawsuit in favor of the independence of the attorney general.

In a 2003 lawsuit over legislative redistricting, the state Supreme Court ruled unanimously that the attorney general has the power and the duty to sue the state to protect and promote the public interest (Colorado, ex rel. Salazar, Colo., No. 03-SA-133, 03-SA-147, 12/1/03).

“Because the relevant legal questions presented by the Petition were resolved in Salazar, this Court should not invoke its ‘extraordinary' original jurisdiction to re-litigate the same dispute,” Coffman said.

To contact the reporter on this story: Andrew Childers in Washington at

To contact the editor responsible for this story: Larry Pearl at