Proponents of the Clean Power Plan ended their week to plead their case to the federal court with a strong show. A total of 16 amicus briefs were filed Friday, the last day to do so. The briefs, including one filed by a group of more than 200 current and former members of Congress, argue that the Clean Air Act gives the Environmental Protection Agency the authority to regulate carbon emissions from existing coal-fired power plants.
“The Clean Power Plan is a flexible common-sense approach to reducing carbon pollution from existing power plants. It will help usher in the end of the dirty power plan era and unleash a clean energy revolution in every state in the country,” Sen. Ed Markey (D-Mass.), one of the signatories to the congresspeople brief, said Friday during a conference call with reporters. “The law is clear: The Clean Air Act gives the EPA the authority to regulate air pollution, and that is what the agency is doing with the Clean Power Plan rule.”
In addition to the briefs filed Friday, the EPA earlier in the week filed its own response in U.S. Court of Appeals for the D.C. Circuit to the legal challenge to the Clean Power Plan, as did four sets of intervenors.
The EPA rule, which requires states to develop action plans to meet federally set emissions reduction targets, is being challenged by a group of 156 petitioners comprised of states, utilities, fossil fuel companies, and trade and interest groups. The group marched to the courthouse as soon as the Clean Power Plan was open for challenge to file a lawsuit demanding it be overturned on the grounds that the rule represents a massive regulatory overreach by the agency. The anti-CPP petitioners filed their briefs in late February.
Opponents of the rule argue that the EPA does not have the authority to regulate carbon under Section 111(d) of the Clean Air Act, the section under which the Clean Power Plan is drafted, because a 1990 amendment to the law states that a source cannot be regulated under Section 111(d) if it is already regulated under Section 112, as coal-fired power plants are.
The brief from the current and former lawmakers argues this was never the intention of Congress. “The opponents’ interpretation would mean that Congress made a major policy change in 1990, and it was never mentioned in any committee hearing or document and no representative or senator spoke about it on the floor or either body. Congressman [Frank] Pallone (D-N.J.) and I were in the House of Representatives in 1990 on the Energy and Commerce Committee. The amendments Congress passed then were intended to strengthen the Clean Air Act’s ability to protect public health from pollution, then and in the future,” Markey said.
Additional groups filing briefs include The Institute for Policy Integrity at New York University School of Law, Amazon, Apple, Google, and Microsoft, the American Academy of Pediatrics, The Union of Concerned Scientists, and The U.S. Conference of Mayors.
The anti-CPP petitioners and their intervenors now have a chance to respond to the briefs from the EPA and its intervenors by April 15, and final briefs are due April 22. Oral arguments are scheduled to begin June 2.
