WASHINGTON, D.C. – U.S. Senators Shelley Moore Capito (R-W.Va.), chair of the Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety, and Joe Manchin (D-W.Va.) filed an amicus brief today in the case of State of West Virginia, et al. v. Environmental Protection Agency, et al. The effort led by U.S. Senate Majority Leader Mitch McConnell (R-Ky.), Senate EPW 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.) garnered support from 34 Senators and 171 House Members.

The amicus brief is in support of petitions filed by 27 states, including West Virginia, seeking to overturn the EPA’s Clean Power Plan. A copy of the brief can be found here.

“As I have said time and time again, the harmful Clean Power Plan and its economic assault on states like West Virginia must be stopped,” said Senator Capito, who is leading legislative efforts in the Senate to roll back the Clean Power Plan. “The Supreme Court was right to halt these costly regulations while legal challenges are ongoing. The EPA has overstepped its authority by imposing enormously burdensome regulations on states despite Congress’ rejection, and now the Court should vacate this disastrous rule altogether.

“I have made it clear that we must stop the EPA from ignoring the damage its regulations are causing to our energy sector, our economy and our way of life immediately,” Senator Manchin said. “The Supreme Court ruling is an important step to rein in this out-of-control agency, which overstepped its legal authority by imposing regulations without taking into account the impact on West Virginia's economy, our people and our way of life. The courts must vacate this reckless rule in its entirety in order to prevent loss of countless jobs, increased utility rates and additional harm to our economy.”

Thirty-nine lawsuits seeking review of the Final Rule have been consolidated in the D.C. Circuit. The Final Rule was stayed by the Supreme Court 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.

In the brief, the members state that:

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, 529 U. 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.