Overnight Energy: Lawmakers present their case against power plant rule

CONGRESS TAKES ON THE EPA: Lawmakers told a federal court panel Tuesday that Congress has never approved the regulatory power underpinning the Obama administration's contested climate rule for power plans.

In an amicus brief supporting a state-led lawsuit against the power plant rule, more than 200 lawmakers contended that the Environmental Protection Agency (EPA) is overstepping its bounds with the Clean Power Plan and trying to implement a rule more wide-ranging than previous Congresses ever intended.

"This case involves a new regulation where the agency fails to 'conform' to clear congressional instructions and is seeking to usurp the role of Congress to establish climate and energy policy for the nation," lawmakers wrote, repeating many of their long-held arguments against the legality of the Clean Power Plan.

Congress, the members wrote, "has not authorized EPA to make the central policy choices in the final rule and, in many respects, has affirmatively rejected those policies, as it certainly did with respect to cap-and-trade programs for [carbon dioxide] emissions from power plants."

The Supreme Court temporarily halted the climate rule earlier this month while the legal fight over the rule's merits moves forward.

Amicus briefs for the case were due to the Court of Appeals for the District of Columbia Circuit on Tuesday. Oral arguments in the case are set for early June.

Read more here.

This court has many friends: The lawmakers joined a crowded field of parties seeking to help the Clean Power Plan's opposition Tuesday with court briefs.

Peabody Energy Corp. and Norfolk Southern Co. joined a number of other companies involved in coal mining and related industries for a brief that touched on many of the same points as the lawmakers.

"EPA has premised the rule on a statutory provision -- Section 111(d) of the Clean Air Act -- that affirmatively prohibits what it seeks to do: to regulate coal-fueled power plants both under Section 111(d) and as a source category under Section 112's Hazardous Air Pollutants program," they wrote. "Since coal-fueled power plants already are regulated under Section 112, Section 111(d) expressly prohibits their double regulation here."

That coalition also targeted the EPA's claim that it should be granted deference to interpret the law as it has, and the Constitutional arguments against the regulation.

The Municipal Electric Authority of Georgia said the EPA's "discovery in a 45-year-old [Clean Air Act] section of newfound authority to compel momentous shifts in power generation across this country and lead the 'global efforts to address climate change' is quintessential agency overreach." A coalition of conservative groups said the agency "exceeded its statutory authority in enacting the Plan, making its imposition arbitrary, capricious, and an abuse of discretion, and urge that it be set aside."

PROGRESS ON FLINT? Lawmakers hinted Tuesday that they could be close to reaching a deal on an aid package for Flint, Mich. and other communities around the United States dealing with toxic water problems.

Michigan's senators, Democrats Debbie StabenowDeborah (Debbie) Ann StabenowRep. Upton won't seek Michigan Senate seat, focuses on reelection The feds need to return to the original intent of foreign investment review GOP campaign committees call on Democrats to return Franken donations MORE and Gary Peters, both said they are working on securing Republican support for the plan's payment mechanism, but are both optimistic that might be on its way.

"I don't know if [Republicans] brought it up or not, but it is a new offset we offered," Peters said Tuesday.

Senate Republicans are considering the deal. Sen. Jim InhofeJames (Jim) Mountain InhofeSenators tear into controversial Trump environment nominee McCain backs Pentagon nominee despite concerns over defense industry ties GOP senators ask Trump for meeting on biofuels mandate MORE (R-Okla.), the chairman of the Senate Environment and Public Works Committee, told Bloomberg BNA on Tuesday that staffers are discussing the proposal "to see how we can maintain our standing principles and make something happen."

The proposal, Peters said, "will be helpful to Flint but it will also be helpful to other communities that may be facing lead or toxic contamination at some point." He wouldn't say how much the proposal would cost, or reveal what Democrats were proposing as a pay-for.

A proposal from the senators to provide $600 million in aid for Flint lead to an impasse over a bipartisan energy bill earlier this month. Senators had hoped to pass the bill with bipartisan support, but Democrats voted to block the legislation when members couldn't come to a deal on Flint aid.

Stabenow said Tuesday she's working with Sen. Lisa MurkowskiLisa Ann MurkowskiSenate bill would cut EPA funding by 0M GOP senator: ObamaCare fix could be in funding bill Collins: Pass bipartisan ObamaCare bills before mandate repeal MORE (R-Alaska), the energy bill's sponsor, on a potential deal now.

But Stabenow said she didn't know whether the compromise -- if it's finalized -- would end up as an amendment to the energy bill or take another legislative path.  

"That's the big question," she said. "I don't care either way, if it's done."

ON TAP WEDNESDAY I: The Senate Environment and Public Works Committee will hold a hearing on the contentious ethanol fuel mandate. Foes of the Renewable Fuel Standard have begun airing digital ads in Washington to highlight opposition to the mandate while lawmakers consider it on Capitol Hill. The EPA's Janet McCabe will testify.   

ON TAP WEDNESDAY II: Christy Goldfuss, the managing director of the White House's Council on Environmental Quality, is among those scheduled to testify on President Obama's environmental mitigation regulations before the House Natural Resources' oversight subcommittee.

Rest of Wednesday's agenda ...

California officials will testify before the House Natural Resources Committee on the state's water supply outlook for 2016.

The Senate Appropriations Committee's energy and water panel will hear from the Nuclear Regulatory Commission on President Obama's 2017 budget request.

A House Energy and Commerce Committee subpanel will hold a hearing on the "science, environment and national security missions" of the Department of Energy.

New America and the Center for Climate and Energy Solutions will hear from experts on the United States's work toward its climate goals under the Paris deal.


Residents near last year's major mine waste spill in Colorado voted to seek Superfund status for nearby abandoned mines, Colorado Public Radio reports.

Japan's government is abandoning plans to oppose new coal-fired power plants, raising questions about the country's ability to meet greenhouse gas emissions goals, Reuters reports.

Federal wildlife officials are investigating how 13 bald eagles died near Maryland's eastern shore, and whether they were poisoned, the Washington Post reports.


Check out Tuesday's stories...

-Bill Gates calls for 'energy miracle'
-Michigan lawmakers approve $30 million for Flint water bills
-Lawmakers: Congress has not given EPA power to enact climate rule
-GOP chairwoman pans Obama Interior budget as 'rocky start' to 2016
-Study: Sea level rising at fastest rate in 2,700 years

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