Republicans Warn Supreme Court That EPA Program “˜Threatens Liberty’

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BERLIN - MARCH 23: Exhaust plumes from the main chimneys of the black coal-fired power plant Heizkraftwerk Reuter West March 23, 2007 in Berlin, Germany. Germany is still heavily dependant on coal for much of its electric power production, though the country is pushing an aggressive policy of CO2 emissions reductions. (Photo by Sean Gallup/Getty Images)
National Journal
Ben Geman
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Ben Geman
Dec. 16, 2013, 1:19 p.m.

Ken­tucky’s GOP Sen­ate duo and oth­er Re­pub­lic­ans are ur­ging the Su­preme Court to scuttle EPA’s first green­house-gas per­mit­ting pro­gram for big pol­lu­tion sources like power plants, re­finer­ies, and factor­ies.

Sev­en law­makers have filed a brief in sup­port of in­dustry groups, states, and con­ser­vat­ive act­iv­ists who are chal­len­ging the per­mit­ting rules. The Re­pub­lic­an brief in the Su­preme Court case ar­gues that EPA, in rules com­pleted dur­ing Pres­id­ent Obama’s first term, claimed so much lee­way un­der the Clean Air Act that it ef­fect­ively usurped the power of Con­gress to write laws.

“The power as­ser­ted by the EPA here in­fringes on the con­sti­tu­tion­al prerog­at­ives of Con­gress, un­der­mines gov­ern­ment ac­count­ab­il­ity, and threatens liberty,” stated the brief filed by Sen. Rand Paul, Sen­ate Minor­ity Lead­er Mitch Mc­Con­nell, House Sci­ence Com­mit­tee Chair­man Lamar Smith, and oth­er law­makers who op­pose reg­u­lat­ing green­house-gas emis­sions. The Court agreed in Oc­to­ber to hear the case. The new brief, which opens an­oth­er front in GOP at­tacks against cli­mate reg­u­la­tions, ar­rives as Mc­Con­nell is fa­cing a primary chal­lenge from his right and a po­ten­tially tough gen­er­al-elec­tion battle next year.

Paul, mean­while, is lay­ing the ground­work for a po­ten­tial pres­id­en­tial run.

The high court is re­view­ing a por­tion of a sweep­ing 2012 ap­pel­late rul­ing that up­held EPA’s first wave of cli­mate reg­u­la­tions and au­thor­ity to write fu­ture rules. The justices are re­view­ing wheth­er EPA cor­rectly de­term­ined that its reg­u­la­tion of car­bon emis­sions from new mo­tor vehicles triggered per­mit­ting re­quire­ments for sta­tion­ary pol­lu­tion sources.

They will hear or­al ar­gu­ments in Feb­ru­ary.

The GOP brief al­leges EPA, in or­der to avoid per­mit­ting smal­ler emis­sions sources, over­stepped its bounds by ex­empt­ing all but big sources of green­house-gas emis­sions from Clean Air Act reg­u­la­tion. To get that done, EPA set the emis­sions level that trig­gers reg­u­la­tion of car­bon di­ox­ide at a far high­er level than the Clean Air Act re­quires for oth­er types of pol­lu­tion.

The brief says, “EPA ef­fect­ively amended spe­cif­ic, nu­mer­ic­al per­mit­ting thresholds that Con­gress it­self had un­am­bigu­ously writ­ten in­to the Clean Air Act.”

“This the EPA can­not do. Our Con­sti­tu­tion re­serves the power to en­act, amend, or re­peal stat­utes to Con­gress alone,” the brief states.

The case is one of sev­er­al cli­mate-re­lated leg­al battles that EPA will even­tu­ally face.

Sep­ar­ate plans to set car­bon-emis­sion stand­ards for ex­ist­ing and fu­ture power plants, which are a pil­lar of Obama’s second-term cli­mate agenda, are sure to face law­suits when they are fi­nal­ized.

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