Petition for Writ of Certiorari — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefApr 29, 2021

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No. ______

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY

AND MICHAEL REGAN, ADMINISTRATOR OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

ROBERT D. CHEREN*

Special Assistant

THOMAS T. LAMPMAN

Assistant Solicitor General

Counsel for Petitioner State of West Virginia

[additional counsel listed at end]

QUESTION PRESENTED

In 42 U.S.C. § 7411(d), an ancillary provision of the

Clean Air Act, did Congress constitutionally authorize the

Environmental Protection Agency to issue significant

rules—including those capable of reshaping the nation’s

electricity grids and unilaterally decarbonizing virtually

any sector of the economy—without any limits on what the

agency can require so long as it considers cost, nonair

impacts, and energy requirements?

PARTIES TO THE PROCEEDING AND RELATED

PROCEEDINGS

Petitioners are the States of West Virginia, Alabama,

Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana,

Missouri, Montana, Nebraska, Ohio, Oklahoma, South

Carolina, South Dakota, Texas, Utah, and Wyoming; and

Mississippi Governor Tate Reeves. Each petitioner was a

respondent-intervenor below.

Respondents who were respondents below are the

United States Environmental Protection Agency and

Michael Regan, in his official capacity as Administrator of

the United States Environmental Protection Agency).

Respondents who were petitioners below are, by court

of appeals case number, as follows:

In Case No. 19-1140: American Lung Association and

the American Public Health Association.

In Case No. 19-1165: State of New York, State of

California, State of Colorado, State of Delaware, State of

Hawaii, State of Illinois, State of Maine, State of

Maryland, Commonwealth of Massachusetts, People of

the State of Michigan, State of Minnesota, State of New

Jersey, State of New Mexico, State of North Carolina,

State of Oregon, Commonwealth of Pennsylvania, State of

Rhode Island, State of Vermont, Commonwealth of

Virginia, State of Washington, State of Wisconsin, District

of Columbia, City of Boulder (CO), City of Chicago, City

of Los Angeles, City of New York, City of Philadelphia,

and the City of South Miami (FL).

In Case No. 19-1166: Appalachian Mountain Club,

Center for Biological Diversity, Clean Air Council, Clean

Wisconsin,

Conservation

Law

Foundation,

Environmental Defense Fund, Environmental Law and

III

Policy Center, Minnesota Center for Environmental

Advocacy, Natural Resources Defense Council, and Sierra

Club.

In Case No. 19-1173: Chesapeake Bay Foundation.

In Case No. 19-1175:

Robinson Enterprises, Inc.,

Nuckles Oil Co., Inc., DBA Merit Oil Co., Construction

Industry Air Quality Coalition, Liberty Packing Co. LLC,

Dalton Trucking, Inc., Norman R. “Skip” Brown, Joanne

Brown, The Competitive Enterprise Institute, and the

Texas Public Policy Foundation.

In Case No. 19-1176: Westmoreland Mining Holdings,

LLC.

In Case No. 19-1177: City and County of Denver (CO).

In Case No. 19-1179: The North American Coal Corp.

In Case No. 19-1185: Biogenic CO2 Coalition.

In Case No. 19-1186: Advanced Energy Economy.

In Case No. 19-1187:

American

Wind

Energy

Association and Solar Energy Industries Association.

In Case No. 19-1188:

Consolidated Edison, Inc.,

Exelon Corp., National Grid USA, New York Power

Authority, Power Companies Climate Coalition, Public

Service Enterprise Group Inc., and Sacramento Municipal

Utility District.

Respondents who were petitioner-intervenors below

are, by court of appeals case number, as follows:

In Case No. 19-1140: State of Nevada.

Respondents who were respondent-intervenors below

are, by court of appeals case number, as follows:

In Case No. 19-1140:

State of North Dakota;

Commonwealth of Kentucky by and through Governor

Andy Beshear; Mississippi Public Service Commission;

Indiana Michigan Power Co., Kentucky Power Co., Public

Service Co. of Oklahoma, Southwestern Electric Power

Co., AEP Generating Co., AEP Generation Resources,

Inc., Wheeling Power Co.; America’s Power; Basin

Electric Power Cooperative; Chamber of Commerce of

the United States of America; Indiana Energy Association

and Indiana Utility Group; International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths, Forgers

& Helpers, AFL-CIO; Murray Energy Corp.; National

Rural Electric Cooperative Association; Nevada Gold

Mines and Newmont Nevada Energy Investment;

PowerSouth Energy Cooperative; Westmoreland Mining

Holdings, LLC.

In Case Nos. 19-1175, 19-1176, and 19-1179: American

Lung Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Clean Air Council, Clean Wisconsin,

Conservation Law Foundation, Environmental Defense

Fund, Environmental Law and Policy Center, Minnesota

Center for Environmental Advocacy, Natural Resources

Defense Council, Sierra Club; State of New York, State of

California, State of Colorado, State of Delaware, State of

Hawaii, State of Illinois, State of Maine, State of

Maryland, Commonwealth of Massachusetts, People of

the State of Michigan, State of Minnesota, State of New

Jersey, State of New Mexico, State of North Carolina,

State of Oregon, Commonwealth of Pennsylvania, State of

Rhode Island, State of Vermont, Commonwealth of

Virginia, State of Washington, State of Wisconsin, District

of Columbia, City of Boulder (CO), City of Chicago, City

of Los Angeles, City of New York, City of Philadelphia,

and the City of South Miami (FL).

There are no other directly related proceedings.

TABLE OF CONTENTS

Page

Question Presented .............................................................. I

Opinion Below ....................................................................... 1

Jurisdiction............................................................................ 1

Statutory Provisions Involved ............................................ 1

Statement .............................................................................. 1

Reasons For Granting The Petition ................................. 13

I. This Case Involves Compelling And Timely

Questions Of Federal Law That The Court Should

Resolve ......................................................................... 13

A. This case presents unusually important questions

about EPA’s power to unilaterally remake

significant sectors of the economy........................ 13

B. The important federal issues in this case need

resolution now......................................................... 19

II. The Decision Below Is Wrong ................................... 25

A. Congress did not clearly authorize EPA to

exercise the expansive powers the court below

affirmed ................................................................... 25

B. Section 111’s text and context foreclose the

majority’s approach ............................................... 29

C. The majority’s interpretation of Section 111

violates the separation of powers ......................... 32

Conclusion ........................................................................... 34

TABLE OF APPENDICES

Appendix A — Court of appeals opinion

(Jan. 19, 2022) ........................................... 1a

Appendix B — 42 U.S.C. § 7411.................................... 204a

VII

TABLE OF AUTHORITIES

Page(s)

Cases

Ark. Elec. Co-op Corp. v. Ark. Pub. Serv.

Comm’n,

461 U.S. 375 (1983) ....................................................... 28

Bond v. United States,

572 U.S. 844 (2014) ....................................................... 26

Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of N.Y.,

447 U.S. 557 (1980) ....................................................... 29

Chamber of Com. of USA v. U.S. Dep’t of

Labor,

885 F.3d 360 (5th Cir. 2018) ......................................... 19

City & Cty. of San Francisco v. Trump,

897 F.3d 1223 (9th Cir. 2018) ....................................... 19

Essex Chem. Corp. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973) .................................. 5, 32

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) ....................................................... 18

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................................. 27, 28

Gundy v. United States,

139 S.Ct. 2116 (2019) .............................................. 32, 33

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Hollingsworth v. Perry,

558 U.S. 183 (2010) ......................................................... 9

Hughes v. Talen Energy Mktg., LLC,

136 S.Ct. 1288 (2016) .................................................... 29

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ................................................ 33, 34

Int'l Refugee Assistance Project v. Trump,

883 F.3d 233 (4th Cir. 2018) ......................................... 19

King v. Burwell,

576 U.S. 473 (2015) ................................................. 27, 28

Marshall Field & Co. v. Clark,

143 U.S. 649 (1982) ....................................................... 32

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................................... 13

McCulloch v. Sociedad Nacional,

372 U.S. 10 (1963) ......................................................... 24

Michigan v. EPA,

135 S.Ct. 2699 (2015) .............................................. 23, 33

Mistretta v. United States,

488 U.S. 361 (1989) ....................................................... 32

TABLE OF AUTHORITIES

(continued)

Page(s)

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ................................................. 23, 29

Touby v. United States,

500 U.S. 160 (1991) ................................................. 32, 34

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S.Ct. 1837 (2020) .................................................... 27

United States Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ................................ 18, 26

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ................ 8, 12, 13, 17, 20, 26, 28, 31

Verizon v. FCC,

740 F.3d 623 (D.C. Cir. 2014) ...................................... 18

West Virginia v. EPA,

136 S.Ct. 1000 (2016) ...................................................... 9

West Virginia v. EPA,

No. 15-1363 (D.C. Cir. Jan. 21, 2016) ............................ 8

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ....................................................... 33

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ......................................................... 27

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

21 U.S.C. § 823 .................................................................... 27

21 U.S.C. § 824 .................................................................... 27

28 U.S.C. § 1254 .................................................................... 1

42 U.S.C. § 7409 .................................................................... 4

42 U.S.C. § 7411 ..................................... 4, 5, 6, 11, 29, 30, 31

42 U.S.C. § 7412 .................................................................... 4

42 U.S.C. § 7429 .................................................................... 4

42 U.S.C. § 7475 .................................................................... 4

42 U.S.C. § 7503 .................................................................... 4

42 U.S.C. § 7651 .................................................................... 3

42 U.S.C. § 7671d ................................................................. 3

Regulations

73 Fed. Reg. 44,354 (July 30, 2008) .................................. 15

80 Fed. Reg. 64,510 (Oct. 23, 2015) ..................................... 7

80 Fed. Reg. 64,662 (Oct. 23, 2015) ...... 6, 7, 8, 16, 27, 29, 33

84 Fed. Reg. 32,520 (July 8, 2019) .................................. 8, 9

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Clean Air Act Amendments of 1987:

Hearings on S.300, S.321, S.1351, &

S.1384 before the Subcmte. on Envtl.

Prot. of the S. Cmte. on Env’t & Public

Works, 100th Cong. (1987) ............................................ 6

Jeff Deason et al., Electrification of

Buildings and Industry in the United

States (Mar. 2018) ......................................................... 15

Nat’l Renewable Energy Lab.,

Electrification & Decarbonization

(July 2017) ..................................................................... 16

United States of America, Nationally

Determined Contribution

(Apr. 22, 2021) ............................................................... 15

U.S. Energy Information Administration,

Electric Power Annual 2019

(Feb. 2021) ..................................................................... 14

U.S. Envt’l Prot. Agency, CO2 Emission

Performance Rate and Goal

Computation Technical Support

Document for CPP Final Rule

(Aug. 2015)....................................................................... 7

U.S. Envt’l Prot. Agency, Draft Inventory

of U.S. Greenhouse Gas Emissions &

Sinks: 1990-2019 (Feb. 2021)................................. 15, 16

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S Envt’l Prot. Agency, In Perspective:

The Supreme Court’s Mercury and Air

Toxics Rule Decision (June 30, 2015) ........................ 23

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED (2d ed. 1968) ...................... 31

PETITION FOR A WRIT OF CERTIORARI

_________________

Petitioners the States of West Virginia, Alabama,

Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana,

Missouri, Montana, Nebraska, Ohio, Oklahoma, South

Carolina, South Dakota, Texas, Utah, and Wyoming; and

Mississippi Governor Tate Reeves respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINION BELOW

The opinion of the D.C. Circuit (App. 1a-203a) is

reported at 985 F.3d 914.

JURISDICTION

The D.C. Circuit entered judgment on January 19,

2021. This petition is timely filed consistent with the

Court’s March 19, 2020 Order. The Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Clean Air Act are set forth

at App. 204a-209a.

STATEMENT

The court below held that a rarely used, ancillary

provision of the Clean Air Act grants an agency unbridled

power—functionally “no limits”—to decide whether and

how to decarbonize almost any sector of the economy.

App. 56a. Five years ago the Environmental Protection

Agency (“EPA”) claimed to find similar powers in the

same provision—authority to reshape the nation’s utility

power sector by mandating standards impossible for coal

and natural gas power plants to meet without limiting

operations, shutting down, or subsidizing investment in

alternate electricity generation that EPA preferred. This

Court took the extraordinary step of staying EPA’s

“Clean Power Plan” rule even before the lower court

finished its review, strongly signaling that EPA (and by

extension the court below now) were wrong.

The Court never had a chance to resolve that case on

the merits because the D.C. Circuit ultimately dismissed

it. EPA, however, heeded the Court’s unsubtle nod and

repealed the rule in 2019 on the basis that it exceeded the

agency’s statutory authority. Asked in the consolidated

challenges below whether EPA’s revised assessment was

correct, a divided panel answered “no” without even

acknowledging the Court’s stay. Instead, it insisted that

EPA had more statutory power than the agency had

originally claimed.

The decision below is wrong. To reach its momentous

result, the court deviated from the text-based reading that

the statute creates a process for EPA and the States to

work together to ensure that power plants and other

stationary sources use proven equipment and practices to

reduce their own emissions. And it purported to find

grounds for EPA to dictate huge shifts in most sectors of

the economy even though nothing in the statute

approaches the clear language Congress must use to

assign such vast policymaking authority—assuming, of

course, it can delegate enormous powers like these in the

first place.

The decision also has massive consequences. EPA now

has a judicial edict not to limit itself to measures that can

be successfully implemented at and for individual

facilities. It can set standards on a regional or even

national level, forcing dramatic changes in how and where

electricity is produced, as well as transforming any other

sector of the economy where stationary sources emit

greenhouse gases. Power to regulate factories, hospitals,

hotels, and even homes would have tremendous costs and

consequences for all Americans; EPA’s steps on remand

and every regulation under the statute to follow will be

shaped by this new and wildly expansive authority.

Only the Court can resolve whether EPA has this

unilateral power—or if Congress must take up the mantle

instead. How we respond to climate change is a pressing

issue for our nation, yet some of the paths forward carry

serious and disproportionate costs for States and

countless other affected parties. Continued uncertainty

over the scope of EPA’s authority will impose costs we can

never recoup because EPA, the States, and others will be

forced to sink even more years and resources into an

enterprise that is—at best—legally uncertain. The Court

should intervene now.

1. A key purpose of the Clean Air Act, 42 U.S.C. § 7401

et seq., is to address emissions from certain categories of

buildings and facilities. Congress chose two approaches

to address this goal:

The first is target-based, directing emission reductions

to a specific amount or threshold level. On the more

specific end of the spectrum, Title IV’s Acid Deposition

Control program includes a cap-and-trade system to

reduce sulfur dioxide emissions by “ten million tons from

1980 emission levels,” and nitrogen oxides emissions by

“approximately two million tons.” 42 U.S.C. § 7651(b).

Similarly, the Stratospheric Ozone Protection Program

“phase[s]-out” certain ozone-depleting substances

through a detailed statutory process and schedule. Id.

§ 7671d. On the other end of the spectrum, National

Ambient Air Quality Standards target emission levels

“requisite to protect the public health,” “allowing an

adequate margin of safety.” Id. § 7409(b). And the second

phase of the Hazardous Air Pollutants program aims to

“provide an ample margin of safety to protect public

health . . . or to prevent, taking into consideration costs,

energy, safety, and other relevant factors, an adverse

environmental effect.” Id. § 7412(f)(2); see also id.

§ 7429(h)(3) (same authority for solid waste combustion

units).

Congress’s second approach focuses on improved

controls and processes. Instead of targeting specific

reductions or ambient air concentrations, emissionreduction goals in this category are tied to what individual

sources can achieve using available technology.

New Source Review, for example, ensures that a new

or modified stationary source—“any building, structure,

facility, or installation which emits or may emit any air

pollutant,” 42 U.S.C. § 7411(a)(3)—employs the “best

available control technology” or matches the “lowest

achievable emission rate.” Id. §§ 7475(a)(4), 7503(a)(2). In

the first phase of the Hazardous Air Pollutants program,

EPA’s standards require “the maximum degree of

reduction in emissions” that sources can achieve “through

application of measures, processes, methods, systems or

techniques.” Id. § 7412(d)(2). And under Section 112 EPA

can issue rules for smaller sources that “provide for the

use of generally available control technologies or

management practices.” Id. § 7412(d)(5).

2. The performance standards program in Section

111—the provision at issue here—falls within the second

category.

Section 111(b) directs EPA to establish “standards of

performance” for new stationary sources. 42 U.S.C.

§ 7411(b)(1)(B). A “standard of performance” is a

“standard for emissions of air pollutants which reflects the

degree of emission limitation achievable through the

application of the best system of emission reduction which

(taking into account the cost of achieving such reduction

and any nonair quality health and environmental impact

and energy requirements) the Administrator determines

has been adequately demonstrated.” Id. § 7411(a)(1).

For existing sources, Congress forged a deliberate

partnership between the States and EPA. 42 U.S.C.

§ 7411(d). EPA identifies the “best system of emission

reduction” available for designated categories of sources,

then promulgates a “procedure” for States to submit

standards of performance for the individual sources within

their borders. Id. § 7411(d)(1). The States follow that

procedure to set particular “standard[s] for emissions of

air pollutants,” which “reflect[]” the best system of

emission reduction but can be modified based on sourcespecific factors like a facility’s “remaining useful life.” Id.

§ 7411(a)(1), (d)(1). EPA may step in only if a State fails

to submit or enforce a “satisfactory plan.”

Id.

§ 7411(d)(2)(A).

Several features confirm that Section 111 aligns with

the statute’s second category of individual source-focused

programs. Section 111(a)(1) calls for standards based on

an “achievable” degree of emission limitation after

applying an “adequately demonstrated” system of

emission reduction. 42 U.S.C. § 7411(a)(1); see Essex

Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433-34 (D.C.

Cir. 1973) (explaining that “achievable” means more than

“purely theoretical or experimental,” and “adequately

demonstrated” has similar real-world meaning).

Similarly, EPA must issue periodic “information on

pollution control techniques,” 42 U.S.C. § 7411(b)(3), and

States may seek revised performance standards for new

sources based on “a new, innovative, or improved

technology or process which achieves greater continuous

emission reduction,” id. § 7411(g)(4)(A). Where numbersbased emission standards are infeasible, EPA may use a

“design, equipment, work practice, or operational

standard” instead. Id. § 7411(h)(1). And EPA’s discretion

to issue waivers is likewise steeped in what individual

sources can achieve: Waivers encourage “innovative

technological system[s]” that have not yet been

adequately demonstrated, and their length must consider

“the design, installation, and capital cost of the

technological system or systems being used.”

Id.

§ 7411(j)(1)(A), (D), (F).

3. Although EPA often uses Section 111(b) to set

standards of performance for new sources, it has rarely

deployed Section 111(d). App. 23a-24a (listing just seven

regulations in over 40 years). During the debates

considering the 1990 amendments to the Clean Air Act, in

fact, one of the amendments’ architects characterized

Section 111(d) as “some obscure, never-used section of the

law.” Clean Air Act Amendments of 1987: Hearings on

S.300, S.321, S.1351, & S.1384 before the Subcmte. on

Envtl. Prot. of the S. Cmte. on Env’t & Public Works,

100th Cong. 13 (1987).

That situation changed when EPA finalized the Clean

Power Plan (“CPP”) rule in October 2015. 80 Fed. Reg.

64,662 (Oct. 23, 2015). The CPP implemented President

Obama’s directive to use Section 111(d) to “lead[] global

efforts to address climate change” and thereby “do what

Congress wouldn’t.”

App. 170a (citation omitted).

Designed to overhaul national electricity generation, the

CPP imposed mandates for existing coal and natural gas

power plants that were—by EPA’s own admission—

unachievable

through

technology

process

improvements at any individual source. 80 Fed. Reg. at

64,754.

EPA first determined that existing coal-fired plants

could adopt equipment and practices to reduce emissions

an average of 4.1%, lowering emission rates from 2,160

pounds per megawatt hour to 2,071. See U.S. Envt’l Prot.

Agency, CO2 Emission Performance Rate and Goal

Computation Technical Support Document for CPP

Final Rule 12, Dkt. No. EPA-HQ-OAR-2013-0602-36850

(Aug. 2015). No adequately demonstrated equipment and

practices, though, would reduce average emissions for

natural gas plants. 80 Fed. Reg at 64,728. Dissatisfied

with these findings, EPA fashioned a novel mandate in the

form of an “adjusted CO2 emission rate”—which it

calculated by dividing the amount of emissions from the

source by the amount of that source’s generation and the

amount of generation from EPA-preferred, zero-emitting

sources that the disfavored plants could subsidize. Id. at

64,949. Thus, despite current technology putting average

reductions to 2,071 pounds per megawatt hour in reach for

coal-fired plants, EPA mandated an impossible-to-achieve

standard of 1,305 pounds. 80 Fed. Reg. at 64,667; see also

id. at 64,961 (setting 771 pounds limit for natural gas

plants). This standard was even lower than EPA’s

requirements for new sources under Section 111(b), see 80

Fed. Reg. 64,510, 64,513 (Oct. 23, 205), which is

unsurprising because it was not a traditional emission

limit at all. Instead, the CPP established a credit system

that required sources to subsidize “energy generated or

saved with zero associated emissions” elsewhere. Id. at

64,949, 64,961.

The upshot is that most coal- and gas-fired plants

would have been required to reduce operations and invest

in alternate types of generation, or (most often) subsidize

their competitors’ or out-of-state companies’ investments.

Some plants would have been forced to close down. App.

174a. Projected implementation costs and increased

utilities rates for consumers were staggering. App. 174a.

And States would have been stripped of their statutory

flexibility to adjust performance standards based on

sources’ individual characteristics, forced instead to

facilitate reordering their electricity infrastructure. The

CPP required States to impose EPA’s sweeping

subsidization mandate unless they adopted an equivalent

state-level scheme or a mass-based emission allowance

that EPA designed to achieve the same industrytransforming changes as the primary subsidy plan. 80

Fed. Reg. at 64,820-26.

4. Twenty-seven States and numerous other parties took

issue with EPA’s claim “to discover in a long-extant statute

an unheralded power to regulate a significant portion of

the American economy,” Util. Air Regulatory Grp. v.

EPA, 573 U.S. 302, 324 (2014) (“UARG”) (citation

omitted), and challenged the CPP in the D.C. Circuit. 84

Fed. Reg. 32,520 (July 8, 2019). Petitioners in those

actions urged the court to stay the CPP pending judicial

review, but it refused. Order, West Virginia v. EPA, No.

15-1363 (D.C. Cir. Jan. 21, 2016).

This Court was more receptive. The challengers

applied to the Court for a stay pending the D.C. Circuit’s

(and potentially this Court’s) review. Requirements for a

stay include “a reasonable probability that four Justices

will consider the issue sufficiently meritorious to grant

certiorari”; a “fair prospect that a majority of the Court

will vote to reverse [a] judgment below”; and “a likelihood

that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). On

February 9, 2016, the Court took the unprecedented step

of staying EPA’s rule. E.g., West Virginia v. EPA, 136

S.Ct. 1000 (2016) (No. 15A773).

5. Without waiting for a three-judge panel to decide

the case, the D.C. Circuit sua sponte took it up en banc

and heard oral argument in September 2016. After the

January 2017 change in presidential administration, the

court granted a request to hold the challenges in abeyance

while EPA reconsidered the rule. App. 36a. The court

ultimately dismissed the challenges before issuing a

decision. App. 36a.

On July 8, 2019, following this Court’s “not-so-subtle

hint,” App. 172a, EPA repealed and replaced the CPP. 84

Fed. Reg. at 32,522. EPA determined that the CPP

“significantly exceeded” its authority under Section 111.

Id. at 32,523. Section 111 is limited by its terms to systems

of controls that can be applied successfully at individual

sources, and the CPP unlawfully departed from that

unambiguous constraint. Id. at 32,521, 32,526-27. EPA

also recognized that clear-statement canons bolstered its

view, and that the CPP would have run afoul of the Clean

Air Act’s cooperative federalism framework and

significantly infringed areas of traditional state

sovereignty. Id. at 32,529, 32,521. EPA found telling the

“notable absence of a valid limiting principle” in the CPP’s

contrary approach, and concluded there was no basis to

divine “[c]ongressional intent to endow the Agency with

discretion of this breadth”—including power to regulate

“fundamental sector[s] of the economy.” Id. at 32,529.

EPA also adopted new Section 111(d) guidelines for

existing coal-fired power plants. 84 Fed. Reg. at 32,532.

This Affordable Clean Energy (“ACE”) rule was built on

the same threshold determination that measures

achievable only on a regional or grid-wide level cannot be

a “system of emission reduction.” App. 37a-42a.

6. A new group of States and interested parties

challenged the CPP repeal and ACE rule. App. 43a-44a.

Another group of States and other entities intervened in

support of both actions—including Petitioners here and

many of the original challengers in the CPP lawsuits. App.

172a.

On January 19, 2021, after copious briefing and roughly

nine hours of remote oral argument, the D.C. Circuit

issued a 2-1 decision vacating and remanding the CPP

repeal and ACE rule. App. 1a-163a. Without even

acknowledging the Court’s stay, the majority rejected

EPA’s conclusion that no reasonable interpretation of

Section 111(d) authorizes rules that go beyond using

adequately demonstrated equipment and practices for

limiting emissions at particular sources.

The majority relied heavily on the phrase “system of

emission reduction,” one part of Section 111(a)(1)’s

definition of “standard of performance.” App. 56a-58a.

Even though standards of performance indisputably

apply to individual sources, the majority concluded that

EPA can rely on systems that apply to “the source

category” as a whole, or even “emissions” in the abstract.

App. 63a, 66a. Requiring States’ electricity-generation

fleets to shift to zero-emitting alternatives was thus

among the statutorily permitted options.

Indeed, the majority’s analysis allows even more

expansive power than the CPP claimed. The majority

insisted that EPA “tied its own hands” by restricting the

systems it considered for the CPP to, for example, those

“target[ing] supply-side activities” or that reduce

emissions directly instead of offsetting their effects. App.

91a n.9. It emphasized that “Congress imposed no limits”

in Section 111 other than directives to consider costs,

nonair health and environmental impacts, and energy

requirements. App. 56a.

The majority did not, however, find clear and

unmistakable delegation of this industry-changing power.

It concluded instead that Section 111 does not implicate

what it characterized as the “so-called ‘major questions

doctrine.’” App. 83a. Congress clearly delegated power

over “what” and “whom” EPA may regulate (greenhouse

gas pollution and power plants), and the majority deemed

Section 111 to give sufficient clarity to “how,” as well.

App. 89a. It similarly rejected federalism concerns

because “[i]nterstate air pollution is not an area of

traditional state regulation,” and EPA is otherwise

authorized to mandate pollution-reduction measures with

broad consequences for States’ electricity-generation

fleets. App. 102a-109a.

The majority also rejected some parties’ challenges to

the ACE rule, including an argument that EPA cannot

regulate coal-fired power plants under Section 111

because that source category is already regulated under

Section 112. App. 124a-146a.

7. By contrast, Judge Walker would have held that

EPA “was required to repeal [CPP] and wrong to replace

it” under Section 111. App. 165a (Walker, J., concurring

in part, concurring in the judgment in part, and dissenting

in part). He explained that Congress disabled EPA from

regulating pollutants “emitted from a source category

which is regulated under [Section 112]”—like coal-fired

power plants. App. 181a (quoting 42 U.S.C. § 7411(d)).

Judge Walker was also highly skeptical that Congress

delegated the enormous power the CPP and the majority

claimed. App. 165a-181a. He looked first to Congress’s

failed attempt to enact comprehensive climate-change

legislation in 2009 and President Obama’s order for EPA

to act instead. App. 168a. Then he catalogued the CPP’s

breathtaking consequences: It was self-consciously

conceived as a “groundbreaking” rule for reshaping the

power sector, aimed to reduce carbon emissions “equal to

the annual emissions from more than 166 million cars,”

and would have exacted “almost unfathomable costs” to do

so. App. 173a-174a (citation omitted).

There was therefore nothing “minor” about “one of the

most consequential rules ever proposed by an

administrative agency.” App. 173a. How to address

climate change and “who should pay” for solutions are

matters “of vast economic and political significance.” App.

177a (quoting UARG, 573 U.S. at 324). Judge Walker

noted the Court has not (yet) fully resolved “the nature of

major questions and limits of delegation,” but he

emphasized that the doctrine’s basic premise is sure:

“Either a statute clearly endorses a major rule, or there

can be no major rule.” App. 178a, 180a. And no party

below made “a serious and sustained argument that § 111

includes a clear statement unambiguously authorizing”

the CPP’s approach. App. 165a.

Finally, Judge Walker explained that even if Congress

“allowed generation shifting” under Section 111(d), it

would have been an unconstitutional delegation because

Congress did not “clearly require it.” App. 178a.

Congress must decide “what major rules make good

sense” and cannot shirk that duty by passing off critical

questions to “the impenetrable halls of an administrative

agency.” App. 179a-180a.

8. On February 22, 2021, the D.C. Circuit granted

EPA’s motion for a partial stay of issuance of the mandate

with respect to the CPP vacatur, and issued a partial

mandate concerning vacatur of ACE and certain

implementing regulations only. Order, Am. Lung Ass’n v.

EPA, No. 19-1140 (D.C. Cir. Feb. 22, 2021). This Petition

followed.

REASONS FOR GRANTING THE PETITION

This Case Involves Compelling And Timely

Questions Of Federal Law That The Court

Should Resolve.

The Court has reviewed aspects of EPA’s authority to

address greenhouse gas emissions under the Clean Air

Act twice before. UARG, 573 U.S. 302; Massachusetts v.

EPA, 549 U.S. 497 (2007). This case should be the third.

In an “unprecedented intervention” into the previous

iteration of this case concerning these same issues, the

Court stayed the CPP even before the lower court had its

say. App. 171a-172a. This extraordinary order signaled

that the CPP’s legal framework hinges on important

issues of federal law that EPA then—and the court below

now—got so wrong this Court was likely to grant review.

Five years later EPA, the States, and the American

people still lack resolution on these weighty issues. This

case poses exceptionally important questions only the

Court can resolve, and because further delay would carry

serious and far-reaching costs, it should do so now.

A. This case presents unusually important

questions about EPA’s power to unilaterally

remake significant sectors of the economy.

The CPP was “one of the most consequential rules ever

proposed by an administrative agency.” App. 173a. Even

more expansively, the decision below gives EPA more

policymaking power than ever before placed in an

agency’s hands. In rejecting Petitioners’ (and EPA’s

below) position that Section 111(d) focuses on what

individual stationary sources can accomplish using

demonstrated technology, the majority concluded that one

portion of one definition is the only restraint on EPA

rulemaking. App. 56a. That novel and atextual reading

sweeps broader than the agency itself tried to go five

years ago in the CPP—giving EPA power to reorder the

utility power sector and mandate sweeping changes to any

industry. Indeed, the majority insisted that EPA “tied its

own hands” in the CPP by setting limits on the scope of its

powers that Congress never required. App. 91a n.9. And

it rejected concerns that its reading affords no limiting

principle: As long as EPA’s purpose is pollution-reduction

and it considers costs and nonair environmental and

energy effects, even measures that fundamentally

reshape the economy are all on the regulatory table. App.

56a. Questions surrounding new and almost limitless

agency powers like these are as important as they come.

1. The consequences of the decision below are

massive—for the electricity sector and the rest of the

economy alike.

In the utility power context, the ruling threatens the

existence of over 200 gigawatts of coal plants and over 500

gigawatts of natural gas plants, or roughly two-thirds of

the nation’s total electricity-generation capacity. U.S.

Energy Information Administration, Electric Power

Annual 2019 tbl. 4.3 (Feb. 2021). Eliminating these power

plants would, in turn, likely lead to shutting down coal

mines and natural gas development that provide high-

paying jobs and significant revenues for States and local

governments.

It is also highly unlikely the decision’s ripple effects

will be limited to power plants. There is every reason to

expect EPA will exercise its judicially expanded powers

aggressively: President Biden committed the country to

reducing greenhouse gas emissions 50-52% from 2005

levels by 2030—just 8.5 years from now. See United

States of America, Nationally Determined Contribution

1-2 (Apr. 22, 2021), available at https://www4

.unfccc.int/sites/ndcstaging/PublishedDocuments/United

%20States%20of%20America%20First/United%20States

%20NDC%20April%2021%202021%20Final.pdf.

This

target is far greater than any the Obama Administration

proposed, id., and even the immense changes the CPP

envisioned for the coal and natural gas sectors would not

be enough to get there.

The decision below, however, creates near-boundless

leeway to make up the difference: EPA need only heed the

majority’s reprimand and unlock its self-imposed

handcuffs. Although this case is certainly about power, all

sectors of the economy with buildings that emit

greenhouse gases—that is, nearly all of them—are now in

Section 111(d)’s sights.

Existing stationary sources account for two-thirds of

the carbon emissions subject to President Biden’s

promised target. See U.S. Envt’l Prot. Agency, Draft

Inventory of U.S. Greenhouse Gas Emissions & Sinks:

1990-2019, ES-7 (Feb. 2021). Over 2,000 large buildings

such as “schools, churches, hospitals, hotels, and police

stations” use fossil fuel combustion for heat. 73 Fed. Reg.

44,354, 44375 (July 30, 2008). Nearly every manufacturing

plant in the United States would be covered as well. See

Jeff Deason et al., Electrification of Buildings and

Industry in the United States 14 (Mar. 2018). So too the

millions of homes and small businesses that use fossil fuels

for heating air and water. Nat’l Renewable Energy Lab.,

Electrification & Decarbonization 7 (July 2017).

Combined, these sectors emit over 1.4 billion tons of

carbon dioxide emissions each year—almost as much as

the utility power sector’s 1.6 billion tons. See Draft

Inventory, at 1-18 (0.8 billion tons industrial settings, 0.34

billion tons residential settings, and 0.25 billion tons

commercial settings).

Future decarbonization targets also extend beyond the

industries—and individual Americans—that use fossil

fuels for energy. EPA has identified “key categories” for

potential Section 111(d) regulation like “fugitive”

emissions from oil and gas development, as well as certain

aspects of iron, steel, cement, and petrochemical

production. Draft Inventory, at 1-18 to 1-20.

Further, how EPA can now regulate makes the huge

number of potentially regulated entities more troubling.

The majority interpreted “system of emission reduction”

to encompass any means—Section 111 contains “no limits”

as long as EPA thinks about “costs, nonair health and

environmental impacts, and energy requirements.” App.

56a (citation omitted). Thus the agency’s next rule might

not stop with “supply-side activities.” App. 91a n.9

(quoting 80 Fed. Reg. at 64,776, 64,778-79). There is now

no obstacle to calculating emission guidelines that

presume reducing electricity availability for customers in

States that depend on coal and natural gas—just as the

CPP’s guidelines depended on generation-shifting and

subsidization on the supply side. App. 56a.

Similarly, although the majority concluded the

interconnected nature of the nation’s power grids limited

the CPP’s intrusive effects, App. 99a, it found nothing in

the statute restricting measures to those within a source’s

particular industry. If EPA can regulate from the

perspective of “emissions” as a whole, App. 66a, not only

is “planting trees” a possible “system of emission

reduction,” App. 91a n.9, but nothing would stop EPA

from requiring regulated parties to subsidize carbon

offsets in any industry with a system it deems “best.”

The majority’s approach would therefore mean EPA

could commandeer almost any greenhouse-gas emitting

building, factory, or house through almost any

mechanism. If this is not transformative power, it is only

because (so far) EPA has stayed its own hand. The

decision below pushes it to regulate to Section 111’s “true”

breadth.

2. The incredible reach of the majority’s decision also

makes this the right case to resolve whether and how

Congress can ever delegate issues of this magnitude. The

Court is clear that agencies may make “decision[s] of vast

economic and political significance” only when clearly

authorized by Congress. App. 177a-178a (citing UARG,

573 U.S. at 324). But there is considerable uncertainty in

the lower courts about when a decision reaches that

threshold.

The division in the panel below illustrates the

confusion. The majority began with skepticism that the

major rules doctrine applies at all. App. 83a (describing

“so-called ‘major questions doctrine’”). It then embraced

a piecemeal analysis, considering whether “each critical

element” of the CPP has been “recognized by Congress

and judicial precedent.” App. 84a. And although the

majority acknowledged the CPP’s economy-shifting

power, it found no need for a clear statement because the

statute requires EPA to consider some potentially

limiting factors. App. 94a-96a.

Judge Walker emphasized the CPP’s practical effects,

which made it “arguably one of the most consequential

rules ever proposed by an administrative agency.” App.

173a-174a. He cautioned that approaching the analysis too

abstractly risks erasing the rule: If courts “frame a

question broadly enough, Congress will have always

answered it.” App. 178a. As a result, he viewed EPA’s

purported power holistically, taking seriously its costs and

economic and political significance. App. 173a.

This intra-panel disagreement reflects the D.C.

Circuit’s uneven approach to major-questions cases more

generally. In 2014, for example, the court acknowledged

that broadband regulation involved “decisions of great

‘economic and political significance,’” quoting one of the

seminal major questions cases. Verizon v. FCC, 740 F.3d

623, 639-40 (D.C. Cir. 2014) (quoting FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000)). Yet it did

not require a clear statement pursuant to that case’s

direction because, it reasoned, it was enough for Congress

to provide “limiting principle[s]” on the agency’s power.

Id. Three years later when faced with a near-identical

question, however, the court took no position on “the

precise contours” or even the “existence” of the major

questions doctrine, yet held the statute contained a

sufficiently “clear” statement after all. United States

Telecom Ass’n v. FCC, 855 F.3d 381, 384 (D.C. Cir. 2017)

(per curiam).

There are good grounds to disagree how the doctrine

applies. Judge Walker noted that the Court’s guidance

has been “neither sweeping nor precise,” and expressed

confidence that the Court “will further illuminate the

nature of major questions and the limits of delegation.”

App. 178a, 180a. This language echoes Fourth Circuit

Judge Wynn’s lament that the doctrine is too “difficult” to

apply in part because “no judicially accepted standard

appears to have emerged for determining when a question

is sufficiently ‘major.’” Int’l Refugee Assistance Project v.

Trump, 883 F.3d 233, 328 n.3 (4th Cir. 2018), judgment

vacated, 138 S.Ct. 2710 (2018) (Wynn, J., concurring;

citation omitted). The Fifth Circuit, too, recognized

confusion over “the precise status of a ‘major questions’”

doctrine, yet ultimately invalidated a rule based on

separation-of-powers concerns from implicitly delegating

issues of unusual importance. Chamber of Com. of USA v.

U.S. Dep’t of Labor, 885 F.3d 360, 387-88 (5th Cir. 2018).

The Ninth Circuit also recognized an exception to

deference principles where “an agency’s interpretation

involves an issue of deep economic and political

significance”—but in a case involving an executive order,

where by definition non-delegation concerns are not in

play. City & Cty. of San Francisco v. Trump, 897 F.3d

1223, 1242 (9th Cir. 2018) (citation omitted).

This case is thus far from the only context where it

matters whether the major-questions doctrine exists,

what principles animate it, and how clearly Congress must

speak to satisfy it. The Court should resolve these

important questions, too.

B. The important federal issues in this case need

resolution now.

EPA unveiled significant Section 111(d) regulation

under the last two presidential administrations. It plans

to do the same under President Biden’s leadership. See

Resps.’ Mot. for Partial Stay of Issuance of the Mandate,

Am. Lung Ass’n v. EPA, No. 19-1140 (D.C. Cir. Feb. 12,

2021) (“Resp’ts’ Mot.”). Yet without the Court’s review,

EPA and all affected parties will be in an even worse

position this third time around: The D.C. Circuit sent EPA

on a “multiyear voyage of discovery” to craft systems of

emission reduction “without regard for the thresholds

prescribed by Congress.” UARG, 573 U.S. at 328. If

EPA’s vessel runs aground—or when it does, considering

the court below sanctioned power more expansive than in

the rule this Court stayed—another several years and

countless resources will be lost with it. Granting review is

critical to avoid this waste, as well as other serious

consequences that could not be undone if the next years of

market decisions are shaped by the specter of EPA’s

unlawful mandate.

1. Rulemaking of the CPP and ACE rules’ magnitude

takes time, as do the accompanying legal challenges from

the many parties on all sides of the issue. EPA proposed

the CPP in June 2014 and finalized it sixteen months later

in October 2015. By January 2017 when a new president

directed EPA to change course, the D.C. Circuit had not

yet issued a decision in the CPP challenges. The

regulatory cycle for the CPP repeal was not much faster:

EPA proposed the new rule in October 2017 and finalized

it in July 2019. The D.C. Circuit rejected that rule in the

decision below over a year-and-a-half later, one day before

President Biden’s inauguration began the cycle yet again.

Looking ahead to another round of rulemaking and

litigation, EPA will begin in the doubly unenviable

position of being bound by the majority’s interpretation

while not knowing whether it accurately reflects the limits

Congress set. This is the Court’s first opportunity to

decide these issues on the merits, and there is no

guarantee when the next will arise if the Court sits this

round out. Depending on timing, the anticipated third rule

in as many administrations might evade review just like

the first. It may thus be 2025 (or later) before the Court

could next provide much-needed clarity. Yet taking up the

issue now would put a definitive resolution in reach no

later than June 2022—allowing EPA to propose a rule on

a similar timeframe as the CPP rulemaking, but this time

with certainty in its legal footing.

2. The costs of waiting, however, are too high. Dozens

and dozens of governmental and private parties put

enormous resources into the last two notice-and-comment

processes and following years of litigation. EPA also

committed significant energy into promulgating and

defending its rules. A third cycle will be similarly timeand cost-intensive. More years of resources taken from

the critical areas of energy security and climate-change

policy could thus be erased if the Court declines to clarify

EPA’s legal framework from the outset.

Given the stakes it is important to get these questions

right. But it is also imperative simply to get an answer.

Whatever else can be said for the past rules, nine hours of

oral argument and over “a quarter of a million words” in

briefing show that perhaps the only point on which all

sides agree is that these issues are vital. App. 172a.

The majority emphasized the importance of finding

solutions to climate change, App. 19a—which makes it

essential to know now, not another four or more years in,

which options EPA can use. If the Court ultimately holds

that the D.C. Circuit misread the Clean Air Act, better to

shift public debate as soon as possible to the entity that

can and should act: Congress. There are many pathways

to address climate change, often diametrically opposed,

and the choices have significant and multifaceted

consequences.

Economy-changing issues like these

require bicameral legislative solutions, not an agency

going it alone.

And if Section 111 does not grant EPA the wholesale

power the majority envisioned, then States like

Petitioners and myriad regulated parties will suffer

unjustified and weighty consequences along the way.

EPA does not intend merely to shore up the CPP, but is

poised to undertake new rulemaking under the D.C.

Circuit’s flawed directive. Resp’ts’ Mot. 4. Presumably it

will take to heart the court’s rebuke against extrastatutory limits and flex the unbridled power the majority

assured it Congress delegated in Section 111. President

Biden put his 2030 emission-limit commitment on the

world stage, after all, and given the nationwide changes

needed to meet that aggressive target, the majority’s

approach to Section 111 makes it an especially powerful

tool.

States like Petitioners have much to lose under the

majority’s view. The policies we pursue to address climate

change and how costs are allocated are serious issues, and

the States’ contributions will vary significantly. Some

States, for example, are blessed with abundant fossil fuel

resources, while others have extensive industrial

operations like steel mills and cement plants. States like

these will almost certainly bear a disproportionate share

of the massive costs that restructuring mandates would

require. They should not face those consequences based

on the decisions of an unelected and unaccountable

agency.

Critically, the decision below also casts a wide shadow

apart from any specific regulations EPA will promulgate

under it. In terms of setting stable, reliable energy policy,

it is bad enough that States and regulated industries have

been bounced back-and-forth between the past two

administrations’ priorities.

But the fact that the

majority’s decision is the only statement on EPA’s

authority makes the short-term situation worse—with an

interpretation biased toward executive unilateralism, the

States are left under a sword of Damocles.

Infrastructure cannot change on a dime; States and

market participants must plan and make resource

commitments years in advance. Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm’n, 461 U.S.

190, 201-02 (1983). This means that without review the

States (and other stakeholders) would have little choice

but to work with an agency empowered to exercise

unprecedented authority. The States and others will

likely be boxed into concessions and priorities against

their constituents’ interests, and the effects of those

decisions will have ripple effects throughout the power

sector and beyond. After the Court held a prior EPA rule

unlawful in Michigan v. EPA, 135 S.Ct 2699 (2015), for

example, the agency downplayed the decision’s

significance because the majority of regulated entities

were “already in compliance or well on their way to

compliance” with the challenged rule. U.S Envt’l Prot.

Agency, In Perspective: The Supreme Court’s Mercury

and Air Toxics Rule Decision (June 30, 2015),

https://blog.epa.gov/2015/06/30/in-perspective-thesupreme-courts-mercury-and-air-toxics-rule-decision/. If

market forces could be shaped so forcefully by an

erroneous view of EPA’s power while litigation remained

pending, delaying review will likely lead to even more

significant and irreparable changes.

At bottom, this case will determine the overall balance

of power—legislative versus executive, and federal verses

state—for one of the most significant public policy issues

of our day. Questions “particularly high in the scale of our

national interest” are “a uniquely compelling justification

for prompt judicial resolution of [a] controversy.”

McCulloch v. Sociedad Nacional, 372 U.S. 10, 17 (1963).

It has already been six years since EPA announced its

vast and newly discovered powers under Section 111(d).

The Court should grant the Petition to ensure it does not

take a full decade—or longer—before all affected parties

know whether that “discovery” was real.

3. Finally, the nature of the decision below gives even

more reason to take up these important matters of

delegation, agency rulemaking, and state sovereignty

now.

First, the question presented has been thoroughly

developed over five years of litigation. The D.C. Circuit

heard the first set of challenges to the CPP in 2016, and

many of the same entities were parties to the consolidated

cases below challenging its repeal. Indeed, over 50 parties

and amici curiae participated below, and briefing

“exceeded a quarter of a million words.” App. 172a.

Questions involving this type of rulemaking do not

percolate through multiple circuits; nevertheless, there is

little question these issues have been fully developed and

reflect the benefit of thoughtful participation from

stakeholders on all sides.

Second, the case presents pure issues of law. EPA

repealed the CPP because of a simple premise: Section

111 does not allow EPA to choose a system of emission

reduction based on offsite compliance measures that

individual stationary sources may not be able to achieve.

App. 37a. This meant the D.C. Circuit answered statutory

and constitutional questions only. It did not view the

question of what Section 111 allows through the lens of

agency discretion, see App. 51a, and its analysis did not

turn on the specific record before EPA when it repealed

the CPP—nor, for that matter, the record when EPA

adopted it four years prior. As a result, granting review

will allow the Court to rule on important legal issues that

are not fact-bound and that will necessarily control how

EPA exercises its statutory authority in all future Section

111 proceedings. The States, the many other interested

parties and regulated entities, and EPA itself need

answers to these threshold questions. This is the right

time and the right case to give them.

II.

The Decision Below Is Wrong.

The Court should also grant the Petition because the

D.C. Circuit got the important and time-sensitive issues in

this case wrong. In dissent, Judge Walker characterized

the Court’s 2016 stay as a “not-so-subtle hint,” App. 172a:

EPA should have known then it was building its

regulatory house on sand. Yet when asked whether EPA

was right to repeal that same rule, the majority did not

even mention the stay, and instead turned EPA’s house

into a fortress. The Court should grant review to hold that

EPA was right, the second time, to build elsewhere.

A. Congress did not clearly authorize EPA to

exercise the expansive powers the court

below affirmed.

The majority gave short shrift to the clear-statement

canons. It referred to the Court’s “so-called” major rules

doctrine with a lineage of only a “few” cases. App. 83a. It

concluded the federalism canon “lends no support” to the

claim that EPA cannot functionally require States to

remake their electricity-generation fleets under the guise

of pollution regulation. App. 103a (emphasis added).

And—not surprisingly given this cavalier approach—it

did not attempt to show that Congress spoke with

requisite clarity in Section 111. While Judge Walker

emphasized that none of the many parties challenging the

CPP repeal offered “a serious and sustained argument”

that the statute includes clear, unambiguous delegation,

App. 165a, the majority found it sufficient that Section 111

does not unambiguously forbid its reading. Because the

clear statement canons require more, the majority’s

decision must fall if even one applies. Both do here.

If an agency can ever wield economy-transforming

power to decide major questions and significantly alter the

balance of power between the States and federal

government, Congress must delegate that authority with

unmissable clarity. This is because two constitutional

presumptions militate against implicit delegations of such

weighty matters: First, courts presume that “Congress

intends to make major policy decisions itself” and does not

lightly assign “major lawmaking authority . . . to the

Executive Branch.” U.S. Telecom Ass’n, 855 F.3d at 419

(Kavanaugh, J., dissenting from denial of rehearing en

banc). And likewise, courts presume Congress does not

intend to make “a dramatic departure” from the

Constitution’s state-federal balance “[a]bsent a clear

statement of that purpose.” Bond v. United States, 572

U.S. 844, 866 (2014).

In the “major rules” context, the first presumption

translates to the canon that Congress must “speak clearly

if it wishes to assign to an agency decisions of vast

‘economic and political significance.’” UARG, 573 U.S. at

324 (citation omitted). Several types of decisions carry the

“economic and political” heft of a major rule. Most on

point, in another case involving regulation of carbon

dioxide emissions the Court demanded “clear[]”

congressional authorization before affirming EPA’s

“claims to discover in a long-extant statute an unheralded

power to regulate a significant portion of the American

economy.” Id. Exercising established authority in novel

and unexpectedly far-reaching ways is another example:

Although the Attorney General routinely denies or

revokes individual doctors’ authorizations to distribute

controlled substances, 21 U.S.C. §§ 823(f), 824(a)(4),

“declar[ing] an entire class of activity outside the course

of professional practice” for all doctors was a “major” rule.

Gonzales v. Oregon, 546 U.S. 243, 262, 267 (2006) (citation

omitted). So too for a rule expanding eligibility for health

insurance tax credits that “involv[ed] billions of dollars in

spending each year and affect[ed] the price of health

insurance for millions of people.” King v. Burwell, 576

U.S. 473, 485 (2015).

The second presumption requires similarly compelling

evidence of delegation. In the federalism context,

Congress must “enact exceedingly clear language if it

wishes to significantly alter the balance between federal

and state power.” U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n, 140 S.Ct. 1837, 1849-50 (2020) (citation

omitted). In other words, a statute may not be read to

delegate power in areas of traditional state sovereignty

unless Congress made that intent “unmistakably clear in

the language of the statute.” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 65 (1989) (citation omitted).

The power EPA claimed for itself in the CPP—much

more the wildly expansive authority the majority blessed

it with below—triggers both of these canons.

First, if the decision below does not involve a “major

question,” it is difficult to imagine what would. Although

Congress undoubtedly gave EPA power to “make our air

cleaner” by requiring “at least some carbon reduction,”

App. 178a, the majority distorted that grant into a license

for industry-transforming mandates using essentially any

means. The majority downplayed the magnitude of the

CPP’s subsidization mandate. See 80 Fed. Reg. at 64,949.

The CPP was deliberately designed to be

“groundbreaking” and economy changing. App. 173a. It

started from the premise that “lives [were] at stake” and

was intended to mark “the moment when the rise of the

oceans began to slow and our planet began to heal”—not

minor issues by any measure. App. 175a, 177a (citation

omitted). Nor is who should pay for EPA’s vision: The

costs of implementing the CPP were projected at

hundreds of billions of dollars and could have led to

immense spikes in consumer electricity rates. App. 174a.

The major rule in Burwell, by contrast, involved “only”

billions. 576 U.S. at 486.

The majority was also wrong that decisions about how

much and what kinds of energy can be generated—along

with all the attendant economic, infrastructure, and

reliability concerns—are of a piece with EPA’s ordinary

“scientific and technological” judgments. App. 91a. It

likewise failed to grapple with the extraordinary

implications if EPA accepts its call to go beyond the CPP:

“Major” power is the ability to dictate how any industrial

or commercial sector operates, or to decide whether

heating systems for millions of homes and thousands of

hospitals and factories must be retrofitted. Claiming

“broad and unusual authority” beyond the agency’s

expertise should have triggered a searching look for clear

authorizing language, Gonzales, 546 U.S. at 267—and all

the more where before the CPP neither EPA nor anyone

else thought that “long-extant” Section 111(d) permitted

anything like it. UARG, 573 U.S. at 324.

Second, the majority’s reading of Section 111 has

striking implications for state sovereignty. Energy

generation and utilities regulation are among “the most

important . . . functions traditionally associated with the

police power of the States.” Ark. Elec. Co-op Corp. v. Ark.

Pub. Serv. Comm’n, 461 U.S. 375, 377 (1983); see also

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of

N.Y., 447 U.S. 557, 568-69 (1980). These “traditional

responsibilit[ies]” include “determining questions of need,

reliability, cost and other related state concerns”—

assessing the State’s energy-generation capacity needs as

well as what types of facilities to license. Pac. Gas, 461

U.S. at 205, 212; see also Hughes v. Talen Energy Mktg.,

LLC, 136 S.Ct. 1288, 1299 (2016) (describing States’ wide

discretion when modifying existing or exploring new

energy systems).

The majority brushed past the CPP’s intrusion into

this sphere on the theory that States were “free to choose

the compliance measures” they preferred, as long as they

satisfied EPA’s emission guideline. App. 107a. Yet this

ephemeral protection ignores how the CPP would have

operated: Though not technically requiring generation

shifting, EPA set emission standards that would have

“been unachievable or too costly to meet” otherwise. App.

171a; see also 80 Fed. Reg. at 64,822. The CPP was thus

a functional mandate for coal and natural gas States to

remake their utility fleets according to one top-down,

federal design. And the decision below is an invitation for

EPA to make its next standards stricter still, leaving even

fewer options for States with the bad luck to depend on

sources of energy the agency disfavors.

B. Section 111’s text and context foreclose the

majority’s approach.

The fact that Congress did not clearly authorize the

majority’s near-boundless view of agency power should

have ended the analysis. But in any event, no fair

construction of Section 111 supports the sweeping holding

below, either. The majority’s “no limits” view rests on an

unreasonable reading of the phrase “system of emission

reduction”—both by itself and in context with the rest of

Section 111.

Reading Section 111(d)’s precise terms in context

makes its meaning plain: EPA must establish a process

through which States set “standards of performance for

any [covered] existing source.” 42 U.S.C. § 7411(d)(1)

(emphases added). A “standard of performance,” in turn,

must “reflect[] the degree of emission limitation

achievable through the application of the best system of

emission reduction.” Id. § 7411(a)(1) (emphases added).

The “system” EPA selects is thus one aspect of one

definition; the key terms surrounding it make clear that it

refers to measures a particular source can successfully

adopt to reduce its own emissions. A “stationary source,”

for instance, is defined in physical terms and at the

individual—not industry-wide—level. Id. § 7411(a)(3).

And a standard of “performance” presumes action; a

system that requires curtailing or stopping operations

altogether requires the opposite.

The majority erred by letting “system” do the heavy

lifting without accounting for how that word operates

within the definition of “standard of performance” and the

broader statute.

Understanding that performance

standards are source-specific targets makes it difficult to

reconcile the majority’s view that a system of emission

reduction—an essential aspect of developing those

standards—could be so far divorced from anything a

particular source could achieve.

The majority’s analysis also fails on its own terms. The

majority determined that “best system of emission

reduction” encompasses any “means” or “measures” to

reduce emissions when viewed from a nationwide or gridwide lens, instead of equipment or practices a particular

source can adopt to reduce its own emissions. App. 54a58a. This interpretation turned on a definition of “system”

as a “complex unity formed of many often diverse parts

subject to a common plan or serving a complex purpose.”

App. 56a-57a (quoting System, WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED 2322 (2d ed. 1968)). Yet the CPP

was no “unity” of “parts,” but a singular mandate

requiring reduced output, subsidization, or both. App.

56a. Tying “system” to what a particular source can

achieve, by contrast, better reflects this dictionary

definition: Technology and practices individual sources

can implement do constitute a set of physical and

operational parts aimed at a particular end.

The cracks get wider when reading “best system of

emission reduction” in its statutory context. E.g., UARG,

573 U.S. at 321 (statutory construction accounts for a

term’s “specific context” and “the broader context of the

statute as a whole” (citation omitted)). For example, EPA

must select an “adequately demonstrated” system. 42

U.S.C. § 7411(a)(1). This term has readily apparent

meaning for equipment and practices—the difference

between research and development and successful

implementation. Not so for the many “measures” EPA

could adopt under the lower court’s interpretation: There

is no need to “demonstrate” that emissions will go down if

an emission-emitting source reduces operations or closes

down. Similarly, requiring one source to subsidize

another is a policy choice about preferred energy

generation. It is unclear what research and development

would “demonstrate” for a mandate like that.

Further, CPP’s focus on the “degree of emission

limitation achievable” in the aggregate would have left

States lacking EPA’s preferred energy resources little or

no leeway to craft individual standards for each source in

their fleets—much less to take into account sourcespecific factors like “remaining useful life” while doing so.

42 U.S.C. § 7411(d)(1). In many cases, it would have been

impossible for a particular existing source in those States

to “achieve” the stringent standard EPA set. Cf. Essex

Chem. Corp., 486 F.2d at 434 (explaining that achievability

means more than “purely theoretical or experimental”).

The idea of a standard of performance that source could

meet would thus have become meaningless under the

CPP, and even more now under the majority’s any

“means” or “measures” test.

C. The majority’s interpretation of Section 111

violates the separation of powers.

Finally, if the majority is right that Congress placed

functionally “no limits” on EPA’s authority, App. 56a, then

Section 111 would raise serious non-delegation concerns.

It is a “principle universally recognized as vital to the

integrity and maintenance” of our constitutional system

that Congress “cannot delegate legislative power.”

Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1982);

see also Gundy v. United States, 139 S.Ct. 2116, 2133

(2019) (Gorsuch, J., dissenting). Yet because “Congress

simply cannot do its job absent an ability to delegate

power under broad general directives,” the Constitution

permits agency delegation so long as Congress provides

“specific restrictions” that “meaningfully constrain[]” the

agency’s scope of authority. Mistretta v. United States,

488 U.S. 361, 372 (1989); Touby v. United States, 500 U.S.

160, 166-67 (1991).

This doctrine means Congress cannot “confer[]

authority to regulate the entire economy on the basis of”

an overly vague standard, just as it cannot provide the

agency “literally no guidance.” Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 474 (2001) (citation omitted).

Instead, the people’s representatives must make

“fundamental policy decisions”—that is, “the hard

choices,” as opposed to “filling in of the blanks.” Indus.

Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.

607, 687 (1980) (Rehnquist, J., concurring in the

judgment). As Judge Walker put it, it is Congress’s job to

decide “what major rules make good sense.” App. 179a.

More specifically, the Court demands “substantial”

congressional guidance when it comes to setting “air

standards that affect the entire national economy.”

Whitman, 531 US at 475; see also Michigan, 135 S.Ct. at

2713 (Thomas, J., concurring) (noting “potentially

unconstitutional delegation[]” if EPA possessed

unfettered discretion over “which policy goals [it] wishes

to pursue”). True, EPA may fill in the gaps with some

“judgments of degree.” Whitman, 531 U.S. at 475. But

Congress cannot ask EPA to decide for itself “the criteria

against which to measure” its decisions. Gundy, 139 S.Ct.

at 2141 (Gorsuch, J., dissenting).

Properly understood, Section 111 passes muster: It

requires EPA to make technical and scientific judgments

about source-level systems of emission reductions. The

majority, however, read Section 111 to “allow[]” but not

“require” EPA to go much further—mandating wholesale

restructuring of the energy sector. App. 178a. After all,

the CPP was not merely a standard premised on the

degree of reductions generation-shifting could yield; by

requiring States to set rate-based standards to subsidize

alternate generation or a mass-based standard tailored to

accomplish the same “kinds of generation shifts,” it made

generation-shifting itself the goal. 80 Fed. Reg. 64,949 at

(40 C.F.R. § 60.5790(c)(1)); id. at 64,823.

The decision below would thus allow EPA to decide

what policy goals to pursue when structuring the

electricity grid—as well as which other sectors to

decarbonize, how much, and how fast. That type of power

looks suspiciously like Congress shirked the fundamental

questions and failed to “meaningfully constrain[]” EPA,

while at the same time empowering EPA to assume

Congress’s rightful role. Touby, 500 U.S. at 167. Even if

Congress had enacted such a statute, this “sweeping

delegation of legislative power” almost certainly could not

stand. Indus. Union, 448 U.S. at 646 (Stevens, J.,

controlling op.).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

ROBERT D. CHEREN*

Special Assistant

THOMAS T. LAMPMAN

Assistant Solicitor

General

*admitted in Ohio; practicing

under supervision of West

Virginia attorneys

Counsel for Petitioner State of West Virginia

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

AUSTIN KNUDSEN

Attorney General

State of Montana

TREG R. TAYLOR

Attorney General

State of Alaska

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

LESLIE RUTLEDGE

Attorney General

State of Arkansas

DAVE YOST

Attorney General

State of Ohio

CHRISTOPHER M. CARR

Attorney General

State of Georgia

MIKE HUNTER

Attorney General

State of Oklahoma

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

JASON RAVNSBORG

Attorney General

State of South Dakota

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

ERIC S. SCHMITT

Attorney General

State of Missouri

SEAN D. REYES

Attorney General

State of Utah

BRIDGET HILL

Attorney General

State of Wyoming

TATE REEVES

Governor

State of Mississippi

By counsel:

Joseph Anthony Scalfani

Office of the Governor of

Mississippi

550 High Street, Suite 1900

Post Office Box 139

Jackson, MS 39205

joseph.scalfani@

govreeves.ms.gov

(601) 576-2138

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.