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

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)
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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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