Court allows lawmakers to weigh in on legal brawl

Source: Robin Bravender, E&E reporter • Posted: Thursday, March 24, 2016

The judges weighing the fate of the Obama administration’s Clean Power Plan will consider the views of members of Congress looking to thwart the regulation.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit today issued a short order granting a request from more than 200 lawmakers who have asked to file a “friend of the court” brief in pending litigation over the rule to curb greenhouse gas emissions from power plants.

Led by Senate Majority Leader Mitch McConnell (R-Ky.), 34 senators and 171 representatives opposed to the rule asked the court last month for permission to file their views in the case. Lawmakers and other groups are often allowed to share their perspective in pending cases even though they aren’t parties to the lawsuit (Greenwire, Feb. 23).

The lawmakers 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.” And “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.

Oral arguments over the Clean Power Plan are slated to be heard in early June by Judges Karen Henderson, Judith Rogers and Sri Srinivasan. The rule is currently on hold after the Supreme Court granted challengers’ request to put the rule on ice as the litigation proceeds in the lower court.