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Thirty-four United States senators and 171 U.S. representatives—all but one of them Republicans—earlier this week filed an “Amici Curiae” (or “Friends of the Court”) brief in support of the challenge to the legality of President Obama’s Clean Power Plan.  The Clean Power Plan, also known as the “CPP” or the “Plan,” is the centerpiece of the Obama Administration’s strategy to reduce carbon dioxide emissions from coal-fired power plants and to combat climate change.

The litigation challenging the CPP, which was brought by at least 29 mostly coal-producing states, is pending in the U.S. Court of Appeals for the District of Columbia Circuit.  Earlier this month, in a surprise ruling just days before the passing of Associate Justice Antonin Scalia, the U.S. Supreme Court overturned an earlier ruling by the Court of Appeals and put the implementation of the CPP on hold until the Court of Appeals can decide whether the Plan is lawful and legally valid.  The high court vote was along ideological lines, with Justices Roberts, Alito, Thomas, Kennedy and Scalia voting to grant the request of 29 mostly coal-producing states and various energy companies and business groups to halt implementation of the Plan at the state level.  Were it not for the stay granted by the Supreme Court, the Plan would have required states to either submit individual implementation plans by September 2016, or request an extension.  That schedule is now placed on hold.

The “Friends of the Court” brief filed earlier this week on behalf of Congressional lawmakers is in support of a coalition of mostly coal-producing states, led by West Virginia, that filed suit last fall against the EPA in an effort to invalidate the Plan on grounds that the EPA had overstepped its authority in promulgating the Plan.  As noted, all but one of the signatories to the brief are Republicans, and include Senators Mitch McConnell of Kentucky, Orrin Hatch of Utah, Rep. Paul Ryan of Wisconsin and House Majority Leader Kevin McCarthy of California.  Current Presidential candidates Ted Cruz of Texas and Marco Rubio of Florida also signed on to the brief, as did former Presidential candidates Sen. John McCain of Arizona and Sen. Rand Paul of Kentucky.  Sen. Joe Manchin of coal-producing West Virginia was the lone Democrat whose name appears on the brief.

The lawmakers’ brief stakes out much of the same legal ground as the underlying lawsuit against the Plan—the central argument being: “Congress never authorized EPA to compel the kind of massive shift in electricity generation effectively mandated in the Clean Power Plan.”

Despite the current opposition, the Plan does have significant support.  At least 25 states, as well as New York City and the District of Columbia, have voiced support for the Plan.  In addition, according to a Yale University study published last fall, a majority of the public residing in 23 of the states that filed suit against the Plan actually support setting strict limits on coal-fired power plants.  Meanwhile, the passing of Justice Scalia raises the prospect of a potentially deadlocked Supreme Court, lending greater importance to the lower court ruling on the Plan’s legality in the D.C. Court of Appeals, where oral argument in the case begins on June 2.

For more information on this development, please contact Webb Moore or Jaime Wisegarver.

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Luis F. Ruiz

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