E&C PRIMER: D.C. Circuit Court to Review EPA’s Power Grab Next Week

Committee Has Been Leading Congressional Oversight of the Administration’s So-Called “Power Plan”

WASHINGTON, DC – Next Tuesday, September 27, 2016, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments on the EPA’s “Clean Power Plan.” Since the plan was proposed, the Energy and Commerce Subcommittee on Energy and Power has held eight hearings examining the legality and implementation of this rule. Selected excerpts of testimony from these hearings, as well as links to the hearings and related information, are provided below.

The Power Plan was published on October 23, 2015, and is based solely on a rarely invoked provision of the Clean Air Act known as Section 111(d). Conscious of the rule’s legal implications and its impacts on state electricity sectors, ratepayers, and consumers, Congress responded by passing a Joint Resolution pursuant to the Congressional Review Act disapproving of the final rule. This bipartisan Joint Resolution was transmitted to the president on Dec. 18, 2015 and vetoed.

Twenty-seven states are challenging the rule (see list below). On February 9, 2016, the U.S. Supreme Court issued an unprecedented stay of the rule, and on February 23, 2016, over 200 Members of Congress, including 34 Senators and 171 Representatives, joined in an amicus brief in support of the states challenging the rule.


  • EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Burning the Constitution should not become part of our national energy policy.” Laurence H. Tribe, Carl M. Loeb University Professor, Harvard University and Professor of Constitutional Law, Harvard Law School, March 17, 2015
  • “I think it’s safe to say that when the rule was – the Clean Power Plan was published in the Federal Register October of last year it represented the EPA’s most far-reaching regulation of the electric power sector in the agency’s history. … In short, to regulate existing power plants, the EPA is effectively requiring the construction of entirely new power plants. This novel approach means that EPA has interpreted the Clean Air Act to give that agency the power essentially to plan the resource mix of the U.S. power sector. Effectively, the EPA has created a de facto fuel and renewable energy standard. I am concerned about this because traditionally making determinations as to the economic, environmental and social efficiency of utilities’ investments to serve retail customers has been for nearly a century the province of state utility commissions.” Travis Kavulla, President, National Association of Regulatory Utility Commissioners and Vice-Chairman, Montana Public Service Commission, July 6, 2016
  • If upheld, the Clean Power Plan would lead to a formidable, unprecedented and unlawful expansion of EPA’s authority. The resulting restructuring of nearly every State’s electric grid would exceed even the authority that Congress gave to the Federal Energy Regulatory Commission, the federal agency responsible for electricity regulation. But EPA’s theory of “generation shifting,” which is not about making regulated sources reduce their emissions while operating but rather about preventing many sources from operating at all, does not stop with the power sector. … Section 111(d) would be transformed from a limited provision into the most powerful part of the Clean Air Act, making the agency a central planner for every single industry that emits carbon dioxide.” David Porter, Chairman, Texas Railroad Commission, July 6, 2016
  • The point is that the CPP fundamentally changes the nature of decision-making about operating power plants –who makes the decision, and on what basis. … The key energy generating states must reduce their carbon emissions by as much as 40%, regardless of whether this means that less expensive, reliable generators must shut down. EPA gets final approval of a State’s plan, which would be developed by a State’s environmental regulators, not the state energy regulators. In other words, which power plants can run and when would no longer be a matter primarily of energy regulation, but of environmental regulation.” Charles D. McConnell, Executive Director, Energy and Environment Initiative, Rice University and Former Assistant Secretary of Fossil Energy, U.S. Department of Energy (2011-2013), July 6, 2016 

  • There is universal agreement that the 111(d) rule will fundamentally restructure how energy is generated and consumed in America. … This fundamental change to America’s electricity model will come at the hands of a rule that few consider legally firm. The EPA acknowledges in the rule that it is structured to survive even if portions of the rule are struck down. In my more than 20 years of implementing air quality rules, I am not aware of any rule where the EPA has made an a priori acknowledgement of legal infirmity.” Donald R. van der Vaart, Secretary, North Carolina Department of Environment and Natural Resources, March 17, 2015



  • Congressional Joint Resolution of Disapproval: The House passed S.J. Res. 24 on December 1, 2015, which had been passed by the Senate on November 17, 2015. S.J. Res. 24 was identical to H.J. Res. 72; the House Committee Report accompanying the joint resolution can be found here.
  • “Ratepayer Protection Act of 2015”:  The House also passed bipartisan legislation, H.R. 2042, on June 24, 2015. A copy of the Committee Report accompanying the bill can be found here 


STATES CHALLENGING EPA’S POWER PLAN:  States whose attorneys general or state agencies are challenging the rule include: West Virginia, Texas, Alabama, Arkansas, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming. The attorney general of Nevada also submitted an amicus brief in support of state petitioners.


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