Lawmaker calls for special session to ‘fight Biden’s war on Wyoming’

FROM WYOFILE:

Rep. Mark Jennings is asking lawmakers to join him in urging the governor to convene the Legislature to dispute the BLM’s proposal to halt new coal leasing in the Powder River Basin.

A special legislative session is once again on the lips of Wyoming lawmakers.

Less than three months after the Legislature voted against a special session to override gubernatorial vetoes, Rep. Mark Jennings (R-Sheridan) is circulating a letter amongst lawmakers that calls for a special session for a different reason.

Jennings, who’s affiliated with the hard-line Wyoming Freedom Caucus, is asking his peers to sign a letter asking Gov. Mark Gordon to convene the Legislature to address the federal government’s proposed plans to stop issuing new federal coal leases in the Powder River Basin.

“Members, I’m going to send this letter to Governor Gordon this week,” Jennings wrote in a June 10 all-lawmaker email obtained by WyoFile. “If you would like to sign on to the letter, please get back to me by Wednesday June 12th. I think we should express our support to assist the Governor in this critical matter.”

In May, the U.S. Bureau of Land Management proposed ending federal coal leasing in the Powder River Basin — the nation’s largest coal supplier and a longtime pillar of Wyoming’s economy.

Gordon accused the Biden administration of attacking “Wyoming’s coal country and all who depend upon it,” and promised to “fully utilize the opportunities available to kill or modify this Record of Decision before it is signed and final.”

Sixteen members of the Wyoming Freedom Caucus, meanwhile, also went on the offensive, but set their sights on Gordon, imploring him in an error-riddled op-ed to mount an immediate court challenge, instead of waiting to have legal standing. The group also faulted Gordon for a Trump administration decision and a gubernatorial veto from before he was governor.

Jennings, who did not sign onto the op-ed, is now taking a different approach and tone, but making a similar ask.

“By being proactive we can perhaps fend off this egregious federal overreach that will have devastating effects on our cities, counties, and the entire state,” Jennings wrote in the letter.

A spokesperson for the governor’s office told WyoFile Gordon would not comment on a letter he had not yet received.

Background

The BLM’s proposal is currently in a legally required 30-day “protest” period, which ends on Monday. A final order is due later this year.

That timing is one reason why Gordon said he has held off on filing a legal challenge.

“Since the legal experts among the Sixteen Honorable Legislators have become so focused on the timing of case filings, perhaps they might comprehend that no legal action can be taken until a final Record of Decision is signed and the decision is finalized by the federal government,” Gordon wrote in his May 23 response to the previous Freedom Caucus op-ed.

Filing a suit “prematurely,” Gordon wrote, would risk “an easy legal challenge on timeliness that would likely get it dismissed with prejudice,” thus killing the challenge before it had truly begun.

In the meantime, the governor directed $300,000 of the state’s coal litigation fund — which currently sits at approximately $1.2 million — to the Wyoming Energy Authority to contract with entities who can assist Wyoming “in anticipation of litigation,” Gordon wrote in a letter.

“These funds are to be used to support litigation efforts concerning the EPA rules that could result in early retirement of Wyoming based coal-fired electric generation, or the decreased use of Wyoming coal or the closure of coal-fired generation facilities in Wyoming,” Gordon added.

The Wyoming Energy Authority has since issued a request for proposals.

In March, the Legislature also added approximately $1.8 million to the federal natural resource policy account, which can be used for litigation related to “federal land, water, air, mineral and other natural resource policies that may affect the state or counties,” according to the budget bill. Jennings and other Freedom Caucus members were among the 21 Representatives to vote against the budget.

Yet, the governor’s efforts and the recent appropriation still fall short, according to Freedom Caucus Chairman Rep. John Bear (R-Gillette), who co-signed a response to Gordon’s letter.

“If you genuinely believe that a $300,000 remittance to your Energy Authority is enough to fight a battle of this magnitude, you either completely misunderstand the severity of the situation we find ourselves in (which is bad), or you are attempting to convince the public that you are fighting when you really aren’t (which is worse).”

Bear and Rep. Christopher Knapp (R-Gillette) also penned a letter to the BLM objecting to its plans and discussed the issues during a Campbell County Commission hearing on the issues earlier this month.

“We tried to include in this letter many of the issues that can be brought forth in a legal challenge,” Bear told commissioners.

“​​I am disappointed that none of us legislators were here in June of 2023 last year, and made comments when we could have so that we could also object individually.”

(Gordon also pointed out this lack of lawmaker participation in the BLM’s planning process in his response to the Freedom Caucus op-ed.)

To have standing in a future lawsuit against the agency, would-be litigants must have participated in the BLM’s Resource Management Plan drafting and commenting process, then submit a protest letter to the agency. But Bear dismissed that requirement. “I think there’s another way, and that is to bring suit,” Bear said.

“The reason I say that is because I don’t believe that this administration really is interested in listening to complaints and objections,” Bear continued. “The one thing I think that will impact this administration is to say, ‘We’ll see you in court,’ and to take it to court and do it in such a serious way that they then quit picking on Wyoming, and Campbell County in particular, to begin their 30-by-30 [initiative] implementation.”

“We’re really at the mercy of who’s in the White House, and that’s problematic,” Bear said. “But this state has got to exert its own sovereignty, and I intend to work very hard in that regard, on behalf of all of our constituents, to exert that sovereignty and try to push the pendulum the other way. We should not be beholden to whoever’s elected nationally as to how this county and how the state is going to operate.”

Bear reiterated criticism of Gov. Gordon.

“The governor himself has stated that we should wait until these [BLM] decisions are final and these rules are enacted. And I’m going to push back on that,” Bear said. “Pre-enforcement of rules and laws have been objected to and taken to court in the past.”

Earlier this year, Gordon vetoed Senate File 13 – Federal land use plans-legal actions authorized, which included $75 million for lawsuits against the federal government brought by the Legislature, not the executive branch “for the purpose of this particular issue with the BLM,” Bear said. “​​It would have allowed both the Legislature and this commission to bring those lawsuits and not wait on the executive branch, which we have many examples of, basically, kind of a lethargic reaction.”

Gordon cited the separation of powers in his decision to veto SF 13. Taking on the federal government in court — however necessary — is not the job of lawmakers, Gordon wrote in his veto letter.

“This bill represents a clear attempt to cross, blur and trample the line of separation between our equal, but separate, branches of government,” Gordon wrote.

He also opposed the bill’s price tag, which amounted to approximately 67% of the biennial budget of the attorney general’s office.

Nevertheless, Knapp said lawmakers ought to bring back the legislation because it would provide financial resources for counties, as well as the state, to fight the BLM and the Biden administration.

“It is important as a county to have these resources available to you,” Knapp told the Campbell County Commission at the recent hearing. “The county stands as the first line of defense with anything that is enacted by BLM over land use.

“We need to be more proactive than reactive when it comes to fighting for our ability to maintain jobs, to maintain the economy … and to actually dictate what is going to happen with the future of Wyoming.”

Knapp also said it’s time for Wyoming to follow Florida’s lead in proclaiming that, “There’s no such thing as man-made climate change.”

Jennings’ letter

Jennings’ letter signals a continued interest by some Republican lawmakers to involve themselves in Wyoming’s litigation.

“We respectfully request you to convene the Wyoming Legislature pursuant to Article 3, Section 7 of the Wyoming Constitution in order for the Legislature to appropriate funds for a constitutionally focused, proven legal team to fight Biden’s war on Wyoming,” Jennings wrote.

The Sheridan County lawmaker has served in the House since 2015, but is hoping to join the ranks of the upper chamber in a race that is largely reflective of the Republican battle lines in Wyoming’s 2024 legislative elections.

Jennings and Rep. Barry Crago (R-Buffalo) will compete for Senate District 22 — currently represented by Sen. Dave Kinskey (R-Sheridan), who is not running for reelection.

Jennings did not respond to WyoFile’s request by press time.

It remains to be seen how many lawmakers signed the letter. In the meantime, Gordon scheduled a town hall meeting in Gillette on June 25 to discuss a “barrage” of federal rules against Wyoming fossil fuels and strategies for fighting them.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.

This story was posted on June 11, 2024.