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Sen. Cruz Joins More Than 200 Members of Congress in Filing Amicus Brief to Block EPA’s Attempt to Transform the Nation’s Electricity Sector

Amicus Brief Asks Federal Court of Appeals to Vacate EPA’s So-Called “Clean Power Plan”

WASHINGTON – Today, Sen. Cruz (R-Texas) along with 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.), filed an amicus brief in  State of West Virginia v. Environmental Protection Agency, a case currently pending before the U.S. Court of Appeals for the District of Columbia Circuit.

The bipartisan brief is filed in support of more than 25 states, including Texas, seeking to block implementation of the Obama Administration’s “Clean Power Plan,” a set of regulations that would impose burdensome requirements on power plants.  If enforced, these regulations will destroy jobs, harm the economy, and significantly increase electricity costs for Americans, especially low-income families.  A copy of the brief can be found here.  

The “Clean Power Plan” is yet another lawless attempt by this Administration to accomplish by executive fiat what it could not accomplish through Congress.  As such, this brief serves as a reminder that the Constitution vests “all legislative Powers” in Congress  and that the EPA can only do that which Congress authorizes it to do—nothing more. In the amicus brief, the members state:

“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 CO2mandates 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.”

Additional Information:  Thirty-nine lawsuits seeking review of the “Clean Power Plan” have been consolidated in the D.C. Circuit.  The Supreme Court stayed implementation of the regulations on Feb. 9.  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.