Hawai’i Congressional Democrats defend EPA’s Clean Air Act authority in US Supreme Court case

Today, Hawai’i Sen. Mazie Hirono, Sen. Brian Schatz and Rep. Kai Kahele, along with 189 other congressional Democrats, submitted an amicus brief to support the EPA’s ability to regulate carbon dioxide emissions under the Clean Air Act in the US Supreme Court case: West Virginia v. Environmental Protection Agency.  

The petitioners in the case — red states, energy companies and coal mine owners — originally were fighting to get the Supreme Court to rule the federal Clean Air Act does not authorize Obama’s 2015 Clean Power Plan. The plan was a sweeping policy that required the EPA to give each state an individual goal for cutting power plant emissions and allowing each state to decide for itself how to accomplish the goal. If a state didn’t come up with a plan, the federal government would come up with one for them.

Under the Trump Administration, the EPA in 2019 repealed the Clean Power Plan in favor of a less-aggressive Affordable Clean Power rule that rendered the Clean Power Plan moot. A year ago, a federal appeals court revived the plan, but the Biden Administration said it would not reinstate Obama’s policy.

While the Clean Power Plan is not likely to be implemented, the petitioners are still fighting to get the Supreme Court to rule that the Clean Air Act does not authorize Obama’s Clean Power Plan.

But more relevant, the petitioners are calling for new limits on the Clean Air Act that would severely restrict the Environmental Protection Agency’s ability to reduce greenhouse gas emissions in the future.

And, some of the parties in the litigation are claiming it is unconstitutional for the EPA to take aggressive measures against climate change, similar to those in Obama’s Clean Power Plan. This line of arguments could lead to not only the EPA being stripped of much of its power to fight climate change, but potentially disabling some of Congress’ ability to protect the environment.

“In Hawai’i, we understand the sense of urgency in addressing climate change as we continue to experience its devastating impacts,” Sen. Hirono said. “Reducing carbon pollution from power plants is critical to curbing the climate crisis, yet Republicans continue to undermine the EPA’s legal authority to cut fossil fuel emissions.

“That’s why I joined my Democratic colleagues in supporting the EPA’s ability to cut pollution and protect families in Hawai’i and across the country from dangerous greenhouse gases.”

The brief supports EPA’s authority under the Clean Air Act — that was passed more than 50 years ago — to protect the public from harmful pollution; reduce greenhouse gas emissions; and address the climate crisis.

It also rejects spurious arguments made by congressional Republicans in their own amicus brief, in which they wrongly challenge the EPA’s authority to address climate pollution.

The amicus brief was signed by 192 congressional Democrats — 29 in the Senate and 163 in the House. Hawai’i Rep. Ed Case did not sign onto the amicus brief.

The amicus brief argues:

• By enacting the Clean Air Act, Congress gave the EPA broad authority to regulate air pollution like carbon dioxide. Section 111(d) of the Clean Air Act serves as a gap-filling provision to give the EPA flexibility to address pollution problems that developed since the act was passed.

• Congress has taken an all-hands-on-deck approach to a problem as complex as climate change. The Republican arguments that new bills that seek to address the climate crisis somehow limit the authority of the EPA or repeal its existing authority do not hold water.

• Congress explicitly affirmed the EPA’s authority to regulate greenhouse gasses like CO2 with a bipartisan vote on the resolution last year to re-impose an Obama-era rule supporting the EPA’s regulation of methane emissions.

• Republicans have failed to curtail the EPA’s authority through Congress. They are now asking the court to do what they haven’t been able to do legislatively.

• Congress is creating as many avenues as possible to deal with the climate crisis. The Court should tread carefully in curtailing any specific tool, including the Clean Air Act.

The full text of the amicus brief is available here.