The Flawed Congressional Argument Against the Clean Power Plan

On Sept. 27, the D.C. Court of Appeals will hear oral arguments on the Clean Power Plan. The case pits the Environmental Protection Agency against select state attorneys general, some of the biggest power companies, and industry associations. The court will decide whether the EPA has authority to protect the nation’s public health and environment by setting carbon pollution standards for power plants. The Republican leadership in Congress has weighed in on this case, arguing that EPA has usurped the role of Congress. But to support this argument, the members of Congress rely on an illogical claim based on Congress’ failure six years ago to pass climate change legislation.

Earlier this year, Speaker Paul Ryan and Senate Majority Leader Mitch McConnell joined 203 members of Congress — with just one lone Democrat signing on — in filing a “friend of the court” brief in support of the lawsuit. These members argue that Congress’ failure to pass cap-and-trade legislation in 2010 is evidence that “Congress had no intention of conferring upon EPA” the authority to cut carbon pollution from power plants as prescribed by the Clean Power Plan when Congress passed the Clean Air Act.

The problem with this rationale? Congress passed the Clean Air Act in 1970.

Put another way, these members are arguing that congressional failure to act on a comprehensive energy and climate bill in 2010 provides evidence of Congress’ intent in enacting the Clean Air Act in 1970. The irrelevance of actions in 2010 to understanding the views of Congress in 1970 is obvious: What a group of legislators vote to do has no relevance on interpreting the intent of a different set of legislators four decades prior. As Justice Scalia once penned, “the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.”

To illustrate the weakness of this argument, one only needs to apply its logic to a more recent precedent. In 2011, the newly-empowered House Republican leadership pushed a bill through the House with the stated purpose of stripping the EPA of authority to regulate carbon dioxide from power plants. Although this bill passed the House, it died unceremoniously in the Senate. Under the logic offered by the congressional opponents of the Clean Power Plan, this bill’s failure could be interpreted to demonstrate just the opposite of what congressional opponents are arguing — that in 1970 Congress wanted EPA to regulate carbon pollution from power plants.

This is not the first time courts have heard this type of argument. In 2006, the George W. Bush administration similarly argued to the Supreme Court that the Clean Air Act did not authorize regulation of carbon pollution from cars and trucks, citing post-enactment congressional deliberations. In that case, the administration argued that congressional skepticism about elements of the 1998 Kyoto Protocol was evidence of congressional intent in 1970. The Supreme Court rejected that argument handily, and Massachusetts v. EPA became the landmark decision establishing that the Clean Air Act does in fact authorize EPA to control carbon pollution.

A more unassailable approach for determining the scope of EPA’s authority is to simply focus on legislation that is enacted, not legislation that Congress doesn’t enact. And that’s a key point that 208 current and former members of Congress made in their own “friend of the court” brief in support of the Clean Power Plan. These members — which include dozens of individuals who authored and supported the 1990 Clean Air Act Amendments — explain that Congress drafted certain provisions of the Clean Air Act, like the one at issue here, to give the EPA the flexibility it would need to address a diverse array of pollutants, including those not specifically mentioned in the law.

Despite its shortcomings, the congressional brief opposing EPA’s Clean Power Plan does unambiguously answer one question about intent — that today’s Republican leadership in Congress has no intention of acting on the serious threat of climate change. That unfortunate reality must change. Climate change is pushing its way into the lives of Americans throughout the country, as temperature records are routinely broken and severe weather events like the recent flooding in Louisiana become more and more commonplace.

The Clean Air Act is a powerful and flexible law that continues to respond effectively to challenges that its authors could not have envisioned. As the D.C. Circuit moves toward oral arguments, the judges will refer back to the history of legal precedent that supports the EPA’s authority on this issue. At the same time, they must also look to the future — that of our cities, our families, and our children — and know that the EPA is acting not only within its authority, but also in the best interest of all Americans.


Greg Dotson is the vice president of energy policy at the Center for American Progress

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