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US House, Senate Members Tell Appeals Court That Clean Power Plan Is Illegal

Members of the U.S. House and Senate, largely from the Republican side of the aisle, have told the U.S. Court of Appeals for the D.C. Circuit that the U.S. Environmental Protection Agency’s Clean Power Plan, published in final form last October, is illegal and should be struck down.

Led by Senate Majority Leader Mitch McConnell, R-Ky., Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., House Energy and Commerce Committee Chairman Fred Upton, R-Mich., and House Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky., 34 senators and 171 house members filed an amicus brief on Feb. 23 at the appeals court in the case of State of West Virginia, et al. v. Environmental Protection Agency, et al.

West Virginia, the second biggest coal-producing state in the U.S., has led a group of 27 states in appealing the Clean Power Plan, which calls for 32 percent greenhouse gas reductions from existing power plants by 2030. The appeals court has combined that case with a number of other appeals filed by parties like coal producer Murray Energy and several electric utilities that rely heavily on coal-fired power. The U.S. Supreme Court has stayed the Clean Power Plan while this appeals court case is argued.

The members of Congress backing the brief state that:

  • The rule goes well beyond the clear statutory directive by, among other things, requiring states to submit, for approval, state or regional energy plans to meet EPA’s pre-determined CO2 mandates for their electricity sector. 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. EPA can point to no statement of congressional authorization for the rule’s central features, precisely because there is none, they added.
  • Congress has not authorized EPA to make the policy choices that are reflected in a rule that imposes enormous costs on states and the public without achieving meaningful climate benefits. States will face unprecedented new regulatory burdens, electricity ratepayers will be subject to billions of dollars in compliance costs, and American workers and their families will experience the hardship of job losses due to power plant shutdowns, higher electricity prices, and overall diminishment of the nation’s global economic competitiveness, they said. Congress has in many respects affirmatively rejected policies like this, as it certainly did several years ago with respect to cap-and-trade programs for CO2 emissions from power plants, they said.

Thirty-nine lawsuits seeking review of the rule have been consolidated in the D.C. Circuit. The D.C. Circuit is scheduled to hear oral arguments in the consolidated cases on June 2. An amicus brief, or “friend of the court” brief, can be filed in order to address concerns and advise the court on a matter of law that directly affects the case at hand.

In this rule, said the brief: “EPA takes a coercive approach that commandeers the States to implement and enforce the agency’s policy choices. EPA does so by mandating CO2 reductions in most States that cannot be achieved by controls on power plants alone and, instead, would require the States to restructure their electricity sectors. In particular, the Final Rule requires States to, among other things, adopt measures that may include fundamentally altering generation, transmission, and consumption of electricity, enacting new state legislation, adopting emissions trading programs, pursuing energy efficiency and renewable energy mandates, and expending significant State and local governmental resources to achieve compliance. These will not be short-term obligations. The compliance requirements in the Final Rule continue beyond 2030.

“Assertions about ‘flexibility’ in the Final Rule are unconvincing in light of the substantial reductions in CO2 emissions mandated for each State—for many, reductions greater than 40 percent compared to 2012 emission levels. In truth, States have few, if any, real options other than implementing the rule on EPA’s terms at great cost to the States and their citizens, or foregoing compliance and awaiting imposition of an onerous federal plan.”

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