200 Lawmakers Say EPA Carbon Plan Oversteps Authority

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By Andrew Childers

Feb. 23 — Congress never authorized the Environmental Protection Agency to transform the U.S. power sector in the way envisioned by the Clean Power Plan, 34 senators and 171 representatives said in an amicus brief filed Feb. 23.

Arguing the Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the power sector in each state, should be vacated, the members of Congress said the EPA's rule far exceeds the agency's authority under the Clean Air Act.

“EPA can point to no statement of congressional authorization for the final rule’s central features, precisely because there is none,” they wrote in the brief filed in the U.S. Court of Appeals for the District of Columbia Circuit.

The amicus brief is joined by Senate Majority Leader Mitch McConnell (R-Ky.); Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee; Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee; House Speaker Paul Ryan (R-Wis.); House Majority Leader Kevin McCarthy (R-Calif.); and House Majority Whip Steve Scalise (R-La.). Also joining are Republican presidential candidates Sen. Ted Cruz (R-Texas) and Marco Rubio (R-Fla.) as well as coal state Sen. Joe Manchin (D-W.Va.).

“This case involves a new regulation where the agency fails to ‘conform' to clear congressional instructions and is seeking to usurp the role of Congress to establish climate and energy policy for the nation,” the lawmakers said.

Litigation over the Clean Power Plan continues, but the Supreme Court on Feb. 9 took the unusual step of staying the rule.

The amicus brief cited an opinion by the late Supreme Court Justice Antonin Scalia that warned the EPA against seeking new powers to regulate vast swaths of the economy from existing statutes (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2014 BL 172973, 78 ERC 1585 (2014)).

States, utilities and other industries opposed to the Clean Power Plan frequently cited the same opinion in opening briefs filed Feb. 22 .

“In reality, if Congress desired to give EPA sweeping authority to transform the nation’s electricity sector, Congress would have provided for that unprecedented power in detailed legislation,” they said.

Power Plants Already Regulated

The members of Congress also argue the EPA's Clean Power Plan violates the plain text of the Clean Air Act, which was amended in 1990 to prevent duplicative regulation of industrial sources under both Sections 112 and 111(d).

Conflicting amendments to Section 111(d) were both signed into law in 1990. The House language would prevent the EPA from regulating industrial sources under Section 111(d) if they are already subject to toxic pollutant standards under Section 112, as power plants are. The Senate's language only bars the agency from regulating the same pollutants under both sections of the act. While both amendments are reflected in the statutes at large, only the House language appears in the U.S. Code.

“EPA seeks to avoid the Section 112 exclusion, both as written by Congress and as articulated by the Supreme Court, in two ways: first, by effectively rewriting Section 111(d), and second, by relying on an inexecutable remnant of statutory language that was properly excluded from the U.S. Code when the 1990 amendments to the CAA were codified in 1992,” the members of Congress said. “Both infringe upon the legislative powers of Congress and must be rejected.”

The members of Congress argue the Supreme Court already endorsed the Section 112 exclusion in a 2011 decision that held the EPA's authority to regulate greenhouse gases under the Clean Air Act preempts common law complaints brought by states (Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2011 BL 161239, 72 ERC 1609 (2011)).

Ginsburg Footnote Highlighted

In a footnote to that opinion, Justice Ruth Bader Ginsburg said the “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program … or the ‘hazardous air pollutants' program, [Section 112].”

Although the Supreme Court in American Electric Power Co. v. Connecticut specifically cited the EPA's authority to regulate industrial sources under Section 111 as one of the factors preempting common law claims, the members of Congress also argue that decision prohibits the EPA from issuing carbon dioxide standards for power plants under Section 111(d) because the agency's mercury and air toxics standards already regulate power plants under Section 112.

“While it is true that, in 2011, the Supreme Court acknowledged EPA’s ability to regulate power plants under Section 111(d) … EPA effectively surrendered such authority when it issued the MATS Rule in 2012—a rule promulgated under Section 112 that remains in effect today,” they said.” In other words, because EPA chose to promulgate the MATS Rule (thereby regulating coal-fired power plants under Section 112), EPA cannot rely on Section 111(d) as the source of its authority for the final rule.”

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com