WASHINGTON — U.S. Sen. John Thune (R-S.D.) today joined 33 senators and 171 representatives in filing an amicus brief, or friend of the court brief, that urges the D.C. Circuit Court of Appeals to stop the Obama Environmental Protection Agency’s (EPA’s) power plant emissions rule, also known as the Clean Power Plan.
“South Dakotans applauded the U.S. Supreme Court’s recent decision to temporarily block President Obama’s backdoor national energy tax,” said Thune. “The EPA has overstepped its legal authority, and now it’s time for the D.C. Circuit Court of Appeals to end the uncertainty and significant impact this rule would have on family budgets and our overall economy.”
In the amicus brief, which can be found here, the members write:
The Final 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 predetermined 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. Indeed, when an agency seeks to make “decisions of vast ‘economic and political significance’” under a “long-extant statute,” it must point to a “clear” statement from Congress. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160, 120 S. Ct. 1291, 1315 (2000)). EPA can point to no statement of congressional authorization for the Final Rule’s central features, precisely because there is none.
Nor has Congress authorized EPA to make the policy choices that are reflected in the Final Rule—a rule that imposes enormous costs on States and the public without achieving meaningful climate benefits. Because of the Final Rule, 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. Choices of this nature are inherently Congressional decisions. See W. Minn. Mun. Power Agency v. Fed. Energy Regulatory Comm’n, 806 F.3d 588, 593 (D.C. Cir. 2015) (“Agencies are empowered to make policy only insofar as Congress expressly or impliedly delegates that power.”) (citing Util. Air Regulatory Grp., 134 S. Ct. at 2445 (2014)). Congress has not authorized EPA to make the central policy choices in the Final Rule and, in many respects, has affirmatively rejected those policies, as it certainly did with respect to cap-and-trade programs for CO2 emissions from power plants.
Accordingly, the Final Rule that has been properly stayed by the Supreme Court should now be vacated by this Court.
Twenty-seven states have challenged the final Clean Power Plan in court, which was recently stayed by the U.S. Supreme Court on February 9.