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Republicans urge court to overturn GHG rule

17 Dec 2013 21:11 GMT

Washington, 17 December (Argus) — The Environmental Protection Agency (EPA) exceeded its authority when it decided to set new Clean Air Act permitting requirements for greenhouse gas emissions from power plants, several Republican members of Congress said yesterday.

EPA unlawfully asserted the ability to modify the Clean Air Act when it issued the tailoring rule for permitting of GHG emissions from power plants and other large sources, the Republicans, led by Senate minority leader Mitch McConnell of Kentucky, said in a brief filed with the US Supreme Court.

While EPA has the ability to clarify ambiguous provisions of the Clean Air Act, it does not have the power to override Congress by amending or ignoring specific statutory language, the lawmakers said.

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

The other six Republican members of Kentucky's congressional delegation, along with representative Lamar Smith (R-Texas), joined McConnell in filing the brief.

The tailoring rule set the threshold for GHG permitting at 75,000-100,000 short tons/yr, far above the statutory threshold of 100-250st/yr for pollutants covered by the Prevention of Significant Deterioration (PSD) permitting program. EPA justified the change as a way to avoid the “absurd results” of having to immediately regulate millions of sources under the lower thresholds.

A brief filed yesterday by 75 state and local chambers of commerce urged the court to overturn the tailoring rule on the grounds that it would “devastate” the US economy and does nothing to avoid eventual regulation of smaller sources.

“Every source of GHG, no matter how inconsequential its emissions may be, is within EPA's regulatory reach and grasp,” the chambers said.

The Supreme Court is scheduled to hear oral arguments on 24 February in industry appeals of a lower court decision upholding EPA's initial steps to regulate GHG emissions under the Clean Air Act. The lawmakers' and chambers' briefs were filed in support of the industry groups appealing last year's ruling by the DC Circuit Court of Appeals.

The Supreme Court is hearing only a limited appeal, focusing on whether EPA properly concluded that the regulations for automobile emissions automatically triggered regulation of stationary sources through the PSD and Title V permitting programs. The court declined to hear appeals that sought to overturn EPA's other steps, such as the 2009 finding that GHG emissions endanger public health and welfare and the automobile standards.

The lower court did not rule on the legality of the tailoring rule, finding that states and industry groups that sued on that issue did not have legal standing.

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