Hoeven, 33 Senators, 171 Representatives File Amicus Brief, Urge Circuit Court to Overturn EPA's New CO2 Rule

WASHINGTON – Senator John Hoeven today, along with 33 Senate and 171 House colleagues, filed an amicus brief in the case of State of West Virginia, et al. v. Environmental Protection Agency, et al. The bipartisan “friend of the court” brief supports suits filed by 27 states, including North Dakota, seeking to overturn the EPA’s final carbon dioxide emissions rule. A copy of the brief can be found here.

“Our brief to the court points to statutes that clearly require the administration to secure approval from Congress before it can implement sweeping new rules with such far-reaching impacts on the American people,” Hoeven said. “Instead of seeking proper authority, the EPA and the administration have circumvented Congress, and now American families and businesses will bear the burden in terms of job losses and higher costs for electricity. The court needs to stop this precedent.”

Excerpts from the brief follow:

As Senators and Representatives duly elected to serve in the Congress of the United States in which “all legislative Powers” granted by the Constitution are vested, 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. The 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. 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 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.