Group of mostly Democratic politicians file pro-Clean Power Plan brief

On April 1, a slightly bipartisan group of 44 current and former U.S. senators and 164 current and former House members from 38 states as well as the District of Columbia and the Northern Mariana Islands joined in filing an amicus brief in support of the Obama Administration’s Clean Power Plan.

The CPP, which was published last October and immediately appealed by dozens of parties into federal court, would reduce greenhouse gas emissions from existing power plants by 32% by 2030 The U.S. Court of Appeals for the District of Columbia Circuit is considering a challenge to the rule in the case West Virginia et al. v. Environmental Protection Agency. The case is up for oral argument on June 2.

The amicus brief, filed largely by Democrats, argues that the Clean Power Plan rule is consistent with the text, structure, and legislative history of the Clean Air Act (CAA). Further, it argues that the rule is consistent with the goal of the CAA to “protect the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” According to the brief, the Supreme Court has already affirmed that the EPA has clear authority to combat carbon pollution and regulate greenhouse gasses under Massachusetts v. EPA and American Electric Power v. Connecticut.

The bipartisan group of former senators that signed the brief include: Senators George J. Mitchell (D-ME), Carl Levin (D-MI), David Durenberger (R-MN), Joseph I. Lieberman (I-CT), Timothy E. Wirth (D-CO), Thomas A. Daschle (D-SD), J. Robert Kerrey (D-NE) and Tom Harkin (D-IA).

The bipartisan group of former House members that signed the brief include: Representatives Sherwood Boehlert (R-NY), Thomas Downey (D-NY), Bill Hughes (D-NJ), George Miller (D-CA), Jim Moran (D-VA), Milton “Bob” Carr (D-MI) and Henry A. Waxman (D-CA).

The brief noted: "Amici are current and former members of Congress who are familiar with the Clean Air Act (CAA). Indeed, many amici were sponsors of CAA legislation, participated in drafting the 1990 CAA amendments, serve or served on key committees with jurisdiction over the CAA and Environmental Protection Agency (EPA), and supported the passage of the CAA. They are thus familiar not only with the law as enacted, but also with how the law evolved as it moved through the legislative process. Amici are thus particularly well-situated to provide the Court with insight into the authority Congress conferred on EPA in the CAA, why Congress would confer such authority on an expert agency, and the important role that such agencies often play in achieving policy objectives established by Congress. Further, as current and former members of Congress, amici are uniquely well-positioned to respond to assertions made by amici members of Congress in support of petitioners and to explain why EPA’s ability to promulgate the rule at issue facilitates, rather than undermines, Congress’s ability to make policy for the nation."

The brief later added: "Petitioners and their amici challenge the rule on the ground that, under their reading of the CAA, EPA’s decision to regulate hazardous pollutants emitted from power plants deprives it of the authority to regulate CO2 emissions from those same power plants." It said opponents argue that the new rule 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. "This argument fundamentally misunderstands the CAA and the authority it confers on EPA," the brief added. "Indeed, by promulgating rules that are (as this one is) consistent with the text, structure, and history of the CAA, EPA conforms to clear congressional instructions and facilitates Congress’s ability to enact a robust clean air and public health policy for the nation."

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.