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Lawyers: Court must determine if congressional inaction nullifies the Clean Power Plan

The judges of a federal appeals court agreed thatconflicting Senate and House amendments related to two sections of the CleanAir Act are certainly confusing. But in the absence of clarity, does that mean Congressalone must speak to the issue leaving the U.S. EPA unable to use one of thosesections?

This was one of the most important discussions of the morethan six-and-a-half hours of oralarguments heard by the U.S. Court of Appeals for the District ofColumbia Circuit on Sept. 27 regarding the U.S. EPA's Clean Power Plan,asserted a panel of attorneys the next day at the Georgetown Climate Center andGeorgetown Environmental Law program. The issue came up time and time againthroughout the arguments, beginning with West Virginia Solicitor General ElbertLin in the first session covering statutory issues.

Under American law, Congress must write statutes in a waythat clearly expresses its intent when the body seeks to adopt a policy thatgoes against an established constitutional value. This is called the clearstatement rule, which Judge Brett Kavanaugh pointed to as a key issue in theClean Power Plan case.

Given the way the Clean Power Plan asks states to enactpolicies and change their power systems, Lin believes the clear statement ruleis applicable to the plan. "Congress needs to speak clearly if it wantsthe federal government to alter the balance of federal-state relations,"he said at the Georgetown event.

Thomas Lorenzen, who argued on behalf of non-statepetitioners and represented several power cooperatives and their trade group,the National Rural Electric Cooperative Association, said the court has a toughjob trying to figure out just how to interpret EPA's authority as it pertainsto Clean Air Act Section 111(d), under which the carbon-cutting rule ispromulgated.

"I don't know how the court is going to solve it, butthey're going to have to grapple with it. Not only with what does the languageof the statute authorize EPA to do, but what do we take from Congressionalinaction over the years," Lorenzen said.

The Clean Air Act was last updated 26 years ago, beforeclimate change was a mainstream issue. While attempts have been made to passcap-and-trade legislation to address greenhouse gases, they have not beensuccessful. Lorenzen said inaction raises questions as to whether Congress inits failure to act has already spoken to the issue of regulating greenhousegases.

Lin said the D.C. Circuit will also have determine whetherthe Clean Power Plan is truly transformative. If the rule is in facttransformative, this again brings up a question of whether Congress aloneshould have acted or issued a clear directive for the EPA to do so.

D.C. Circuit Judge Thomas Griffith had asked Lin during thearguments whether the rule could be considered transformative considering itslimited projected impact on the power industry. At Georgetown, Lin said that isnot the point. "Really the question here is, is it transformative in alegal sense?" he said.

Judge Cornelia Pillard during arguments pointed out thatCongress expressed a clear directive to reduce pollution when it passed theClean Air Act. Similarly, Judge Patricia Millett noted that the courts haveexpressly authorized the EPA to regulate greenhouse gases, and asserted,"[W]e don't get to step in now."

Kavanaugh cited the interest in the case, especially the"moral obligation" to regulate greenhouse gases that has been toutedby EPA Administrator Gina McCarthy. "The Pope's involved," Kavanaughsaid, referring to the Roman Catholic leader's 2015 on climate change andvisit to Congress.Given all that attention, Kavanaugh wondered "who are we to stand in theway" of the executive branch and the president's wishes. If Congress trulydisagreed with the president's actions, Kavanaugh said lawmakers have tools toblock those actions, such as defunding the government.

In fact, an attempt to evoke the Congressional Review Act tohalt the Clean Power Plan passed the House and Senate in 2015. However, themeasure was vetoed byPresident Barack Obama.