Appeals Court: Medicaid Program Must Cover Gender-Affirming Care

The Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, upheld a lower court ruling Monday on a vote of 8 to 6 that the state’s Medicaid exclusion violated federal law.

A federal appeals court has ruled that West Virginia’s Medicaid program must cover gender-affirming surgeries.

The Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, upheld a lower court ruling Monday on a vote of 8 to 6 that the state’s Medicaid exclusion violated federal law.

The Fourth Circuit ruling also applies to North Carolina’s health insurance program for state employees.

The states had argued that cost, rather than bias against transgender beneficiaries, was behind excluding gender-affirming surgeries. West Virginia’s Medicaid program does cover hormone therapy, office visits, counseling and lab work.

The court’s majority found that the states’ exclusion did not apply to the same procedures, such as mastectomies or breast reductions, for patients with cancer or excess breast tissue who are not transgender.

Attorney General Patrick Morrisey, a candidate for governor in the state’s Republican primary, said he’d appeal the case to the U.S. Supreme Court.

“Our state should have the ability to determine how to spend our resources to care for the vital medical needs of our citizens,” Morrisey said in a statement.

The West Virginia lawsuit, filed in 2020 in the U.S. District Court for the Southern District of West Virginia, named the former Department of Health and Human Resources and its former secretary, Bill Crouch, as defendants.

The suit also covered PEIA, the state employees’ health insurance program.

District Judge Robert Chambers ruled against the exclusions in 2022. Morrisey appealed to the Fourth Circuit.

EPA Foes Vow To Block Power Plant Rules. It May Not Matter

Regardless of whether the rule stands or falls, the standards it sets could happen anyway.

The U.S. Environmental Protection Agency issued its final rule to limit carbon dioxide emissions from power plants Thursday, and the reaction from state officials was swift.

West Virginia Attorney General Patrick Morrisey said he’d take the case to court. Republican U.S. Sen. Shelley Moore Capito said she’d introduce a repeal resolution in the Senate. Democrat Joe Manchin, who’s not running for re-election, said he’d support her measure.

Regardless of whether the rule stands or falls, the standards it sets could happen anyway.

Morrisey was successful in his bid to block President Barack Obama’s Clean Power Plan. The U.S. Supreme Court sided with him in West Virginia v EPA two years ago.

The policy never took effect. But as Amanda Levin, director of policy analysis for the Natural Resources Defense Council, points out, the goals it set were met, and earlier than planned.

“That was also a rule at that time, there were concerns about whether or not the power sector would be able to achieve it, and it ended up achieving those standards 11 years early, even though the rule was stayed,” she said.

Now, as then, critics of the rules, including some in the electric power sector, say they can’t be achieved. Manchin points to the 2021 winter storm in Texas that caused deadly power outages.

“We saw what happened in Texas, how many people’s lives were lost, how much was disrupted in the economy, went to heck in a handbasket down there when their gas lines froze up.” he said.

The failures in Texas, and more recently in the eastern United States in late 2022, were mostly of fossil fuel infrastructure, especially natural gas. Renewables and battery storage helped hold the Texas power grid through last summer’s heat.

Levin says the new EPA rules come at a time when electric utilities are rapidly building wind, solar and battery storage. They’ve already surpassed coal and even nuclear.

“Clean energy sources are now the cheapest and fastest growing source of new power generation,” she said.

Even West Virginia is building more solar and will soon begin building storage batteries.

Mon Power activated the largest solar facility in the state in January in Monongalia County and is building another one in Harrison County.

Form Energy is building a long-duration storage battery plant in Weirton. Other companies coming to West Virginia, including steelmaker Nucor, wanted access to renewable power.

Phil Moye, a spokesman for Appalachian Power, which operates three coal plants in West Virginia, says the company is looking at the EPA rules to see how they affect plant operations and future investments.

“The development of new dispatchable generation resources and storage technologies will be critical in determining how quickly the industry can meet the requirements of the new rules,” he said.

Appalachian Power is an underwriter of West Virginia Public Broadcasting.

EPA To Require Coal And New Gas Power Plants To Cut Emissions

The power plant rules align with changes that have been happening in the sector in the past decade. Electric utilities have moved sharply away from coal, largely switching to natural gas.

The U.S. Environmental Protection Agency on Thursday rolled out its final rules to cut emissions from existing coal-fired and new gas power plants.

Those plants will have to ultimately cut their carbon dioxide emissions by 90 percent or shut down.

The new rules include updated limits on mercury and other toxic pollutants from plants that burn coal. They also include changes to how power plants dispose of the wastewater that results from treating coal emissions to remove toxic pollutants.

Finally, the rules require the cleanup of coal ash disposal sites that were closed prior to 2015.

“By developing these standards in a clear, transparent, inclusive manner, EPA is cutting pollution while ensuring that power companies can make smart investments and continue to deliver reliable electricity for all Americans,” said EPA Administrator Michael Regan.

The power plant rules align with changes that have been happening in the sector in the past decade. Electric utilities have moved sharply away from coal, largely switching to natural gas.

“This year, the United States is projected to build more new electric generation capacity than we have in two decades – and 96 percent of that will be clean,” said White House Climate Adviser Ali Zaidi.

Renewables such as wind and solar account for an increasing percentage of power generation and have surpassed coal.

Still, fossil fuel producing states, and some industry groups, are expected to challenge the new rules. Some will argue that the rules will have a negative economic impact on power plant communities. Others will say the rules will make the power grid less reliable.

“We will be challenging this rule,” said West Virginia Attorney General Patrick Morrisey in a statement issued soon after the new rules were published. “The U.S. Supreme Court has placed significant limits on what the EPA can do—we plan on ensuring that those limits are upheld, and we expect that we will once again prevail in court against this out-of-control agency.”

Morrisey, who’s running in West Virginia’s Republican primary for governor, led a successful challenge of the Obama administration’s Clean Power Plan. The Supreme Court’s ruling in West Virginia v EPA two years ago constrained the EPA’s rulemaking process. Morrisey and others are likely to argue that the agency still overstepped its authority.

Others say the grid simply isn’t ready for a massive shift away from traditional baseload power to more intermittent sources of energy such as wind and solar.

“This barrage of new EPA rules ignores our nation’s ongoing electric reliability challenges and is the wrong approach at a critical time for our nation’s energy future,” said Jim Matheson, CEO of the National Rural Electric Cooperative Association.

Adding to the uncertainty, a change in administrations after this year’s election could result in a rollback of the new rules.

If the rules hold up, the EPA projects $370 billion in climate and public health benefits over the next two decades. The agency’s analysis predicts a reduction of 1.38 billion tons of CO2 through 2047, the equivalent of the annual emissions of 328 million gasoline powered cars.

The EPA is also gathering public input on a proposal to cut emissions from existing gas-fired power plants. Natural gas is currently the nation’s top source of electricity, and though it produces lower carbon emissions than coal, the production and transportation of gas emits methane, a more powerful heat-trapping gas than CO2.

The EPA’s principal solution for coal and gas plants to comply with the new rules is carbon capture and storage. But the technology has not been deployed successfully on a commercial scale, and power plant operators say that the rules will force fossil fuel plants to effectively shut down.

“It is obvious that the ultimate goal of these EPA regulations is to stop the use of fossil fuels to produce reliable energy in the United States by forcing the premature closure of coal plants and blocking new natural gas plants,” said U.S. Sen. Joe Manchin, D-West Virginia, chairman of the Senate Energy and Natural Resources Committee.

Another powerful foe of the EPA rules vowed Thursday that she’d introduce a bill to repeal them.

“To protect millions of Americans, including energy workers, against executive overreach that has already been tried and rejected by the Supreme Court,” said U.S. Sen. Shelley Moore Capito, R-West Virginia, “I will be introducing a Congressional Review Act resolution of disapproval to overturn the EPA’s job-killing regulations announced today.”

Capito is the senior Republican on the Senate Environment and Public Works Committee, which oversees the EPA and confirms its administrator.

Morrisey Asks U.S. Supreme Court To Hear Transgender Athlete Ban

The Supreme Court last year declined to take the case when Morrisey asked.

West Virginia’s attorney general will again ask the U.S. Supreme Court to uphold the state’s ban on transgender student athletes.

Attorney General Patrick Morrisey said Wednesday he’d ask the justices to consider BPJ vs. West Virginia State Board of Education.

The Supreme Court last year declined to take the case when Morrisey asked. That was before the Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that the law, House Bill 3293, violated Title IX protections for gender equality in school sports.

There is no guarantee the justices will be any more inclined to hear the case now.

“We will be filing, over the next month, and we’re going to make sure we time our filing to maximize the chance this case is going to be heard, and most importantly, that we will win,” he said.

Morrisey, who’s running for governor in the Republican primary, appeared with former collegiate swimmer Riley Gaines, who’s become a national figure in the opposition to transgender women and girls participating in school sports.

The campaigns of Morrisey and another Republican candidate, Chris Miller, have been airing competing advertisements declaring each candidate has the stronger position against transgender student athletes.  

Another Republican rival, Secretary of State Mac Warner, said Wednesday that Morrisey should step away from the case because he lost the appeal to the Fourth Circuit.

“He should voluntarily step aside and allow competent legal counsel to defend the West Virginia law that was overwhelmingly passed by the WV Legislature and signed by Governor Justice,” Warner said.

Meanwhile, the 13-year-old student in Harrison County, Becky Pepper Jackson, continues to participate on her school’s track team.

Jack Jarvis, communications director for Fairness West Virginia, said Morrisey’s statements about transgender youth contribute to a hostile environment with increased harassment, bullying and discrimination.

“Transgender women are women, period,” Jarvis said. “If you want to support women, you need to support all women. Becky and all of the other trans youth across our state deserve to fully participate in school activities and athletic events.”

Cabell Parks, Libraries Funding Cut After High Court Decision

Parks and libraries in Cabell County can now have their budgets cut dramatically after a decision from the state supreme court. 

Parks and libraries in Cabell County can now have their budgets cut dramatically after a decision from the state supreme court. 

Last summer, the Cabell County Board of Education announced plans to cut the funding the county parks and libraries receive from the Board of Education Excess Levy by $2 million. 

This decision came from a unanimous vote from the county board. 

Lawsuits eventually made it to the state Supreme Court of Appeals. The high court issued a decision Thursday in favor of the board of education. 

The library system said losing $1.5 million from a $4 million budget would be catastrophic. The parks commission said losing a half million from its budget would require looking at cutting park offerings and free events. 

In 1967, the state legislature added funding for the Cabell County Public Library System onto the school levy. In 1983, they added funding for the Greater Huntington Parks and Recreation District to that same levy.  

A Cabell County School Board representative said in August that the end of COVID-19 funding along with declining enrollment and rising costs made the school board prioritize levy money for the students. 

The education excess levy is up for election every five years. It will come before voters in the May primary election this year.

U.S. Supreme Court Hears Challenge To EPA’s ‘Good Neighbor’ Rule

Among other things, it could force power plants that don’t have the best NOx controls to invest in expensive new equipment.

West Virginia is part of a U.S. Supreme Court challenge to a federal rule on pollution that crosses state lines.

The Supreme Court heard oral arguments Wednesday in a challenge by West Virginia, Ohio and Indiana to the Cross-State Air Pollution, or Good Neighbor Rule.

The rule requires a reduction in nitrogen oxide, which causes smog, from power plants.

Among other things, it could force power plants that don’t have the best NOx controls to invest in expensive new equipment.

It’s estimated that Mon Power would have to spend around $500 million to equip its Fort Martin Power Station in Monongalia County with a new system that eliminates NOx.

The three states are asking the justices to stay the rule. They say the EPA lacks the authority to enforce it under the Clean Air Act.

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