UPDATE: Attorney General Didn’t Advise Bullock in Challenge to EPA Rules

By Beacon Staff

HELENA — The governor’s office said Tuesday that it wasn’t told that Republican state Attorney General Tim Fox would make Montana one of the states opposed to federal greenhouse gas emission rules.

Fox entered the legal challenge last week to the Environmental Protection Agency rules with little fanfare. Montana, West Virginia and Kansas filed a joint “friend-of-the-court” brief asking the U.S. Supreme Court to hear a legal challenge that would reject rules regulating the emissions blamed for climate change.

The filing was made in a lawsuit brought by Texas against the EPA.

The states argue the EPA is overstepping its boundaries by targeting smaller sources of carbon dioxide and other gases in a burdensome program that would require hundreds of thousands of small sources to be part of the greenhouse gas permitting programs.

Fox said the “unprecedented permitting regime” would be costly for industry and consumers. It would also increase costs for Montana state government, which is tasked with administering the rules, he said.

Democratic Gov. Steve Bullock’s office said Tuesday it was not advised of the position Fox was taking for the state, but noted Fox is not required to do so as attorney general.

Spokesman Kevin O’Brien, who worked with Bullock when he was attorney general up until last year, said Bullock did not regularly consult with then-Gov. Brian Schweitzer when joining lawsuits with wider ramifications.

The state did not join the Texas challenge to greenhouse gas rules when Bullock was attorney general.

Earlier this year Fox told The Associated Press he expected to work in a “cooperative and collaborative manner” with Bullock on lawsuits that have the potential for ideological differences. He expected there would be differences of opinion, but said he expected to work through such issues with the governor in an effort to reach the correct conclusion.

“I think when state elected officials work in that manner, we make better decisions and get better outcome,” Fox said during a February interview.

Earlier in the year, Fox did advise Bullock’s staff before joining the lawsuit with 10 other states to challenge a law that Congress passed after the 2008 financial meltdown to strengthen regulations over the financial industry. The new governor, and former attorney general, disagreed with the decision.

Fox spokesman John Barnes said Monday that the “amicus” brief, which seeks to advise the court on the correct legal conclusion, filed last week is not as significant as a lawsuit.

“We have had effective communication with the governor’s office, and have made every effort to communicate with the governor’s staff when it appears that Montana might become a party to a lawsuit, and when it may be to Montana’s advantage to obtain the assistance of an agency under the supervision of the governor’s office in that lawsuit,” Barnes said. “There is no legal requirement that the attorney general’s office notify the governor’s office in advance of an intended legal decision or action, though the Department of Justice will continue to determine on a case-by-case basis when it might be helpful to consult with the governor’s office.”

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