205 lawmakers tell court EPA trying to ‘usurp’ Congress

Source: Robin Bravender and Amanda Reilly, E&E reporters • Posted: Wednesday, February 24, 2016

More than 200 lawmakers are jumping into the legal brawl over the Clean Power Plan, warning that U.S. EPA is trying to “usurp” them.

Led by Senate Majority Leader Mitch McConnell (R-Ky.), 34 senators and 171 representatives today filed a friend-of-the-court brief supporting the throngs of states and industry groups looking to topple the Obama administration’s rule to slash power plants’ greenhouse gas emissions. The lawmakers are all Republicans with the exception of West Virginia Democratic Sen. Joe Manchin.

With its rule, the multitude of lawmakers told federal judges, EPA “is seeking to usurp the role of Congress to establish climate and energy policy for the nation.”

The brief filed with the U.S. Court of Appeals for the District of Columbia Circuit was also signed by Senate Environment and Public Works Chairman James Inhofe (R-Okla.), House Energy and Commerce Chairman Fred Upton (R-Mich.) and many others.

The lawmakers laid out several arguments as to why they believe the rule is unlawful.

First, they contend that EPA is illegally attempting to regulate power plants under two separate sections of the Clean Air Act despite language in the law aimed at preventing “duplicative regulation.”

Furthermore, “contrary to the policy choices made by Congress,” the lawmakers said, EPA’s Clean Power Plan “seeks to transform the nation’s electricity sector” by setting carbon dioxide emission reduction mandates for the states. “Congress never authorized EPA to compel the kind of massive shift in electricity generation effectively mandated in the final rule,” they wrote.

Had lawmakers meant to give EPA such “sweeping authority,” they went on, “Congress would have provided for that unprecedented power in detailed legislation.”

The multitude of challenges against EPA’s rule have been consolidated into one lawsuit that’s now working its way through the D.C. Circuit, with oral arguments slated for early June and a decision expected later this year. The Clean Power Plan is on hold after the Supreme Court agreed earlier this month to freeze the regulation while the legal battle plays out in the D.C. Circuit.

The GOP lawmakers are urging the D.C. Circuit to vacate the rule in its entirety. With their brief, the lawmakers said they could provide the judges with “new and additional insights for the benefit of the court” as it weighs the case.

The lawmakers’ foray into the court battle comes after congressional attempts to kill the rule have failed.

Under McConnell’s leadership, the Senate has attempted to advance several measures aimed at scuttling the Obama administration’s climate agenda. Last year, Congress sent President Obama two resolutions under the Congressional Review Act that would have killed EPA’s carbon rules for power plants.

Notably, three Republican senators — Sens. Kelly Ayotte of New Hampshire, Mark Kirk of Illinois and Susan Collins of Maine — voted against those resolutions. The trio, all moderates, did not sign on to today’s friend-of-the-court brief. Kirk and Ayotte are facing tough re-election battles this fall.

A group of moderate House Republicans led by Rep. Chris Gibson (R-N.Y.) that last year introduced a resolution to address climate change is also missing from the court document. That resolution currently has 12 co-sponsors.

Click here to read the lawmakers’ brief.