July 19, 2024 - The state of Wyoming has hired a second major law firm to support its legal fight in coal litigation efforts. 

Wyoming Gov. Mark Gordon announced Wednesday that the state’s Wyoming Energy Authority (WEA) retained the Denver-based law firm of Brownstein Hyatt Farber Schreck LLP to help with coal litigation efforts related to the Environmental Protection Agency (EPA).

The WEA has a mission of advancing Wyoming’s energy economy, but the agency has run into strong headwinds with the EPA over anti-coal policies that state officials said could severely impact the viability of coal industries in the state.

David Bernhardt

The newly hired law firm, which includes former U.S. Secretary of the Interior David Bernhardt, will assist Wyoming’s fight against the latest round of rules issued by the EPA concerning coal-fired power plants.

Bernhardt, who served as Secretary of Interior from 2019 to 2021 in former U.S. President Donald Trump’s administration, could not be immediately reached for comment on his firm’s appointment. 

Bernhardt previously held several positions with the Department of the Interior in 2001 and served as the federal agency’s solicitor from 2006 to 2009 during George W. Bush’s presidency. He also served as deputy secretary for the Interior Department from 2017 to 2019.  

He became acting Secretary of the Interior following Ryan Zinke’s resignation in December 2018. 

“Wyoming is marshaling all available resources to fight the Biden administration’s ongoing attack on our coal industry, our workers and ultimately our communities,” Gordon said in a statement. “It is a testament to former legislatures that they saw fit to set aside additional funds to supplement the outstanding work already being done by our Attorney General’s office.”

Gordon allocated $300,000 from the state’s Coal Litigation Funds to the WEA on May 20. The WEA began a search for coal litigation help on June 7. 

Bernhardt and his law firm are expected to assist Wyoming and other plaintiff states in their legal fights to overturn or eliminate regulations and laws that impede the state’s ability to mine coal and sell the valuable commodity to utilities to fuel power plants.

In particular, Wyoming is upset over the administration’s push to limit coal exports and its effort to retire coal-fired electric generation facilities in the state. 

These federal efforts have led to 21% lower coal production in the state’s Powder River Basin in northeastern Wyoming during the first three months of 2024 versus the same period a year ago.  

Lower coal production could translate into lower revenue collected by the state’s general fund from coal sales — impacting everything from school construction to roadbuilding.

On June 25, Gordon disclosed plans to Cowboy State Daily that the state had hired a big-time law firm with extensive experience in “federal administrative law” to confront a “no leasing” option on public lands that would end coal mining in the Powder River Basin or PRB. 

The Arlington, Virginia-based law firm of Consovoy McCarthy was retained by Wyoming Attorney General Bridget Hill to help fight a new Bureau of Land Management rule that would end coal production in Wyoming’s energy-rich PRB by 2041. 

The May 16 order from the Biden administration came out of the BLM’s Buffalo Field Office following a 2022 order from the U.S. District Court for the District of Montana in Billings.

Lawyers at Consovoy McCarthy have argued multiple appeals before the U.S. Supreme Court, including a landmark case last year that ended affirmative action in college admissions.