Leading Republican policymakers on energy and the environment Monday filed an amicus brief with the Supreme Court challenging the authority of the judicial branch to address environmental and economic issues associated with federal climate change policy.

The brief was filed by Rep. Fred Upton (R-MI), chairman of the House Energy and Commerce Commission; and Rep. Ed Whitfield (R-KY) and Sen. James Inhofe (R-OK) in a case (American Electric Power Co. et al vs. State of Connecticut) pending before the high court. In December the Supreme Court agreed to review a Second Circuit Court of Appeals ruling that reinstated a lawsuit brought by eight states in 2004 against five of the largest U.S. utilities over their carbon dioxide (CO2) emissions.

"This case involves political and public policy matters that are being resolved by the legislative and executive branches of government," wrote Upton, Whitfield and Inhofe. "These public policy determinations are necessarily within the purview of the Congress and the executive branch, not the judicial branch, because of the complexity and significance of the environmental and economic issues that they raise.

"Courts are not equipped to make judgments about the appropriate emissions standards for utilities located throughout the country. Judicial establishment of such standards would violate decades of Supreme Court precedent and unconstitutionally interfere with congressional and executive branch efforts to address climate change-related matters."

The Supreme Court brief comes less than a week after Upton, Whitfield and Inhofe floated a "discussion draft" on Capitol Hill seeking to strip the Environmental Protection Agency (EPA) of authority to regulate CO2 emissions and other greenhouse gases (GHG) under the Clean Air Act (CAA) (see Daily GPI, Feb. 4).

Significantly, the draft seeks to amend the CAA to prohibit the administrator of the EPA from using powers under the act to address climate change.

The draft also calls for the repeal of the EPA's endangerment finding, which held that GHG emissions pose a danger to the public's health and welfare (see Daily GPI, Dec. 8, 2009). This laid the groundwork for the EPA to more stringently regulate emissions from power plants, refineries, factories and vehicles -- even if Congress failed to enact climate change legislation.

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