CEI in Amicus Brief Asks Supreme Court to Block the Clean Power Plan that Congress Rejected

People often talk about the undemocratic and illegitimate administrative state, of which the Clean Power Plan (CPP) is the perfect example. The Supreme Court will be considering blocking the CPP on February 28. CEI filed an amicus brief on Friday, December 17, asking the Supreme Court to do just that.

To enact the CPP, the Environmental Protection Agency (EPA) claims that Congress gave it the authority to redesign entire industries from the ground up. It claims it can pick and choose winners in the marketplace, deciding which firms are allowed to succeed and which have to go bankrupt. The problem is that Congress did no such thing.

The provision that the EPA claims gives it this authority is 42 U.S.C § 7411(d) of the Clean Air Act, which gives it the authority to “establish[] standards of performance for any existing source for any air pollutant.” How did the agency “establish standards of performance” for a source under the CPP? By standards of performance across the entire economy of states, not for specific sources.

Consider this in light of 42 U.S.C § 7411(d)’s history, which was enacted as a part of section 111 of the Clean Air Act in 1970. In the 1970s, not only was global warming not seen as a threat, The Washington Post’s headline in January 11, 1970 was: “Colder Winters Held Dawn of New Ice Age—Scientists See Ice Age in the Future.” Section 111 in 1970 obviously had nothing to do with carbon dioxide (CO2) or global warming, nor in 1977 when the Clean Air Act was amended, leaving this provision the same.

In 1990 the Clean Air Act was again amended, and while global warming was a concern in 1990, the language that Congress added to the Clean Air Act was explicit that, while studying global warming was appropriate, the EPA’s actions to do so should be “non-regulatory.” “Non-regulatory” appears six times when discussing this global warming risk. When it mentions global warming from CO2 in section 602(e) Congress says it “shall not be construed to be the basis of any additional regulation under this chapter.”

In 2009, President Obama tried to get Congress to pass a cap-and-trade bill to combat global warming. Congress refused. They tried to re-do it without using the words cap-and-trade. As Politico reported in July 2010, Sen. Majority Leader Harry Reid (D-NV) said his new legislation “should not be called a cap-and-trade plan or even a cap on emissions. ‘I don’t use that,’ Sen. Reid said. ‘Those words are not in my vocabulary. We’re going to work on pollution.’” Still, even without the words “cap-and-trade,” Congress refused to go along.

After the failure of cap-and-trade, Democrats didn’t run on it. In fact, Obama accused his opponent of being anti-coal.

But after his reelection, Obama decided to use his “pen and phone” to do it himself. The Clean Power Plan is very similar to the very legislation that Obama tried to get Congress to enact but it refused.

Congress went further than just refusing to enact the legislation. It repudiated the legal authority of the CPP. In passing S.J. Res. 24, Rep. Markwayne Mullin (R-OK) said: “Today, we are here to use this tool to rein in a President who has forgotten that the legislative branch makes the laws and that the executive branch enforces them. The final rules regarding emissions from new and existing power plants are a clear executive overreach. In issuing these rules, EPA has acted outside the authority it was granted by Congress in the Clean Air Act.”

It is in light of this repudiation by Congress that the EPA claims Congress implicitly gave it the authority it seeks, without explicitly saying so. Congress cannot be presumed to have given the authority to redesign entire industries without saying so explicitly.

CEI’s brief also discusses how the Clean Power Plan upsets the federal/state balance by allowing the federal government to force states into enacting state plans. That requires explicit authorization from Congress that does not exist.

Last, our brief shows how Congress did enact generation shifting for sulfur dioxide, so when Congress wanted to give that authority, it knew how to do so explicitly. That implies it was not the intent of Congress to give such authority for CO2.

The Clean Power Plan was, in a sense, a climate coup whereby an administrative agency usurped power from the people’s representatives to impose a major national policy initiative with no democratic legitimacy. Hopefully, at oral arguments in February, the government will be asked to explain such behavior.