Respondents Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.

Nos. 20-1530, 20-1531, 20-1778, and 20-1780

In the

Supreme Court of the United States

WEST VIRGINIA, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

(For Continuation of Caption See Inside Cover)

On Petitions for Writs of Certiorari to the United

States Court of A ppeals for the DC Circuit

BRIEF IN OPPOSITION OF NONGOVERNMENTAL ORGANIZATION AND

TRADE ASSOCIATION RESPONDENTS

Sean H. Donahue

Counsel of Record

Donahue, Goldberg

& Littleton

1008 Pennsylvania Avenue, SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Counsel for Respondents

Additional counsel listed at end of brief.

306426

A

(800) 274-3321 • (800) 359-6859

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

NORTH DAKOTA,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

i

QUESTIONS PRESENTED

The Clean Air Act provides for “standards of

performance” to limit stationary sources’ emissions of

dangerous air pollutants. Such standards must reflect

the degree of emission limitation achievable through

application of the “best system of emission reduction”

the EPA Administrator determines to be “adequately

demonstrated,” considering cost and other factors. 42

U.S.C. § 7411(a)(1), (d). In 2019, EPA repealed a 2015

regulation addressing carbon dioxide emissions from

existing power plants known as the Clean Power Plan,

and promulgated a substitute regulation. The repeal’s

sole basis was EPA’s claim that the “best system of

emission reduction” excludes the principal measures

power-plant operators actually employ to limit

emissions. The court of appeals rejected EPA’s

interpretation and set aside the 2019 action. The new

Administration has since announced that it will

conduct a fresh rulemaking and that it will not

implement either the 2015 or 2019 rule, neither of

which is in effect. The questions presented are:

(1) Whether, before EPA completes a new

rulemaking based on a fresh technical record, the

Court should review EPA’s 2019 interpretation of

“best system of emission reduction.”

(2) Whether petitioner Westmoreland Mining has

met its burden to demonstrate Article III standing

to litigate its claim that EPA may regulate

existing power plants’ carbon dioxide emissions

only under the Clean Air Act’s hazardous air

ii

pollutant program, 42 U.S.C. § 7412, and, if so,

whether that claim, rejected by every presidential

administration since 1990, has merit.

iii

RULE 29.6 STATEMENT

American Lung Association; American Public

Health Association; Appalachian Mountain Club;

Center for Biological Diversity; Chesapeake Bay

Foundation, Inc.; Clean Air Council; Clean Wisconsin;

Conservation Law Foundation; Environmental

Defense Fund; Environmental Law & Policy Center;

Minnesota Center for Environmental Advocacy;

Natural Resources Defense Council; and Sierra Club,

all of which were petitioners and respondentintervenors in the court of appeals, are non-profit

public health and environmental organizations.

Advanced Energy Economy; American Clean Power

Association (successor of the American Wind Energy

Association);

and

Solar

Energy

Industries

Association, all of which were petitioners in the court

of appeals, are nonprofit trade associations. None of

these entities has any corporate parent, and no

publicly held corporation owns an interest in any of

them.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED .................................. i

RULE 29.6 STATEMENT .................................. iii

TABLE OF AUTHORITIES ................................. v

OPINION BELOW ................................................ 1

JURISDICTION .................................................... 1

STATEMENT ........................................................ 1

REASONS FOR DENYING THE WRIT .............. 1

CONCLUSION.................................................... 18

v

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .................................... 6, 7, 9, 17

Ashwander v. TVA,

297 U.S. 288 (1936)..................................................7

Clapper v. Amnesty Intern. USA,

568 U.S. 398 (2013)................................................ 16

Hollingsworth v. Perry,

570 U.S. 693 (2013) ..................................................6

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................................ 13

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021)..............................................6

Wash. State Grange Party v. Wash. State Repub.

Party, 552 U.S. 442 (2008).......................................6

Statutes and Rules

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

42 U.S.C. § 7607(b). .....................................................7

42 U.S.C. § 7411 ................................................ passim

vi

42 U.S.C. § 7412 ................................................ passim

Pub. L. No. 101-549, 104 Stat. 2399 (1990) ........ 11-12

S. Ct. Rule 10 ...............................................................1

Regulations

Clean Power Plan,

80 Fed. Reg. 64,662 (Oct. 23, 2015) ................... 1, 12

Affordable Clean Energy Rule,

84 Fed. Reg. 32,520 (July 8, 2019) .......1-2, 5, 12, 14

40 C.F.R. § 60.5740a(a)(1) ......................................... 13

56 Fed. Reg. 24,468 (May 30, 1991) .......................... 12

65 Fed. Reg. 66,672 (Nov. 7, 2000) ........................... 12

68 Fed. Reg. 2,227 (Jan. 16, 2003) ............................ 13

68 Fed. Reg. 74,868 (Dec. 29, 2003) .......................... 13

70 Fed. Reg. 15,994 (Mar. 29, 2005) ......................... 12

73 Fed. Reg. 44,354 (July 30, 2008) .......................... 12

Other Authorities

Clean Air Task Force, Comments on the Clean

Power Plan, EPA-HQ-OAR-2013-0602-22612

(Dec. 1, 2014)............................................................5

vii

EPA, Inventory of U.S. Greenhouse Gas

Emissions and Sinks:1990-2019 (Apr. 2021) ..........3

EPA, Regulatory Impact Analysis for the Clean

Power Plan Final Rule, EPA-HQ-OAR-20130602-36877 (Aug. 2015) ...........................................3

EPA, Regulatory Impact Analysis for the Repeal

of the Clean Power Plan, and the Emission

Guidelines for Greenhouse Gas Emissions from

Existing Electric Utility Generating Units,

EPA-HQ-OAR-2017-0355-26743 (June 2019)..... 3, 4

EPA, Regulatory Impact Analysis for the

Proposed Emissions Guidelines for Greenhouse

Gas Emissions from Existing Electric Utility

Generating Units (2018), EPA-HQ-OAR-20170355-21182 (Aug. 2018)...................................... 14

Hearing on the Nomination of Michael S. Regan to be

Administrator of the Environmental Protection

Agency Before the S. Comm. on Envt. & Pub.

Works, 117th Cong. (2021). .....................................2

Maya Domeshek and Dallas Burtraw, Resources

for the Future, Reducing Coal Plant Emissions

by Cofiring with Natural Gas (May 18, 2021),

https://media.rff.org/documents/RFF_IB_

21-04.pdf ..................................................................5

1

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a203a) is reported at 985 F.3d 914.1

JURISDICTION

The court of appeals’ judgment was entered on

January 19, 2021. Each of the four petitions was

timely under the Court’s order of March 19, 2020.

Each petition invokes this Court’s jurisdiction under

28 U.S.C. § 1254(1).

STATEMENT

The background is described in the briefs in

opposition of the federal and state respondents.

REASONS FOR DENYING THE WRIT

1. The four petitions for certiorari do not provide

any “compelling reasons” to grant review, S. Ct. Rule

10, and should be denied. No federal regulation of

carbon dioxide emissions from existing power plants

is in effect. EPA has formally stated that it will not

implement either the 2015 Clean Power Plan, 80 Fed.

Reg. 64,662 (Oct. 23, 2015), or its replacement, the

2019 Affordable Clean Energy (“ACE”) rule, 84 Fed.

References to the appendix are to that accompanying the

petition in No. 20-1530.

1

2

Reg. 32,520 (July 8, 2019). See Resp’ts’ Mot. for a

Partial Stay of Issuance of the Mandate, at 4-5 & Decl.

of Joseph Goffman ¶¶ 12-16, Am. Lung Ass’n v. EPA,

No. 19-1140 (D.C. Cir. Feb. 12, 2021), ECF No.

1885168. Instead, the Agency intends to undertake a

new rulemaking, working from a “clean slate.”2

Not a single owner or operator of any electric

power generation facility—that is, not a single

regulated entity—has petitioned for certiorari.

Petitioners are states and fuel suppliers who focus

their objections principally on the regulatory

approach taken in the Clean Power Plan, a six-yearold EPA rule that Petitioner North American Coal

Corporation characterizes as a “relic,” Pet. 18, and

that Petitioners acknowledge never has gone into

effect and never will. No court has issued a merits

judgment on judicial review of that rule; this Court

stayed the 2015 rule in February 2016, Order, No.

15A773 (Feb. 9, 2016); and in 2017 the D.C. Circuit,

at EPA’s request and with the support of Petitioners,

placed the litigation challenging the 2015 rule in

abeyance. After EPA repealed the Clean Power Plan

in 2019, the en banc D.C. Circuit dismissed the

litigation over it as moot. Order, West Virginia v. EPA,

No. 15-1363 (D.C. Cir. Sept. 17, 2019), ECF No.

1806952.

Hearing on the Nomination of Michael S. Regan to be

Administrator of the Environmental Protection Agency Before the

S. Comm. on Envt. & Pub. Works, 117th Cong. 42-43 (2021).

2

3

Both the Clean Power Plan and ACE were based

upon factual records that are now stale. Both rules

failed to anticipate or reflect large and continuing

changes in the makeup and emissions performance of

a rapidly changing electric power sector. By 2019,

annual power sector carbon dioxide emissions were

already lower than the levels projected to be achieved

under the Clean Power Plan by 2030—even though

the Clean Power Plan never went into effect.3 When

repealing the rule in 2019, EPA found that the Clean

Power Plan would achieve no emission reductions

beyond the business-as-usual scenario with no federal

carbon dioxide regulation for existing power plants,

3 Compare EPA, Regulatory Impact Analysis for the Clean Power

Plan Final Rule, at ES-2, tbl. 6 and ES-3, tbl. 7, EPA-HQ-OAR2013-0602-36877 (Aug. 2015) (projecting power sector carbon

dioxide emissions of 1,812-1,814 million short tons in 2030),

https://www3.epa.gov/ttnecas1/docs/ria/utilities_ria_final-nspsegus_2015-08.pdf, with EPA, Inventory of U.S. Greenhouse Gas

Emissions and Sinks: 1990-2019, at ES-7 tbl. ES-2 (Apr. 2021)

(reporting power sector emissions of 1,606 million metric tons in

2019,

equivalent

to

1,770

million

short

tons),

https://www.epa.gov/sites/default/files/2021-04/documents/usghg-inventory-2021-chapter-executive-summary.pdf. See also

EPA, Regulatory Impact Analysis for the Repeal of the Clean

Power Plan and the Emission Guidelines for Greenhouse Gas

Emissions from Existing Electric Utility Generating Units, at 2–

35, EPA-HQ-OAR-2017-0355-26743 (June 2019) (“ACE RIA”)

(noting Edison Electric Institute’s 2018 comment that Clean

Power Plan’s emissions-reduction total for 2030 would be

achieved before Plan’s initial compliance date in 2022),

https://www.epa.gov/sites/default/files/2019-06/documents/

utilities_ria_final_cpp_repeal_and_ace_2019-06.pdf.

4

and that its repeal would secure no cost savings for

the industry. The Agency’s Regulatory Impact

Analysis on the 2019 repeal stated:

[I]t is abundantly clear that national existingsource power sector emissions even without

the CPP [Clean Power Plan] in effect are below

the requirements set forth under the CPP,

when the goals of the CPP are viewed

collectively. This is also true at the regional

level. Considering the national emission

trends, the regional trends, the flexibility of

the CPP, and the delayed time-line of the CPP,

it is likely that there would be no difference

between a baseline that includes the CPP and

one that does not. For all these reasons, the

EPA believes that repeal of the CPP under

current and reasonably projected market

conditions and regulatory implementation is

not anticipated to have a meaningful effect on

emissions of [carbon dioxide,] other pollutants

or regulatory compliance costs.4

For its part, ACE would have, at most, reduced

emissions less than one percent below the businessas-usual trends already occurring in the market,

according to EPA’s analysis. ACE RIA at 3-11, tbls. 33 and 3-15, tbl. 3-8 (projections for 2025, 2030, and

2035).

4 ACE RIA, supra, n.3, at 2-35.

5

EPA is now developing a new rulemaking for

existing coal- and natural gas-fired power plants.5 In

that proceeding, the Agency will take into account the

substantial changes that have occurred in the power

sector and examine afresh what should be considered

the “best system of emission reduction.” The

Administrator’s consideration of available systems of

emission reduction will likely include options,

including carbon capture technology and natural gas

cofiring, that do not implicate the source-specific

statutory limitation that Petitioners claim is imposed

by the Clean Air Act (e.g., W. Va. Pet. 30-31, 33).

Indeed, during the prior rulemaking proceedings and

in anticipation of EPA’s new one, many stakeholders

have advocated that EPA consider such measures,

which can achieve significant emission reductions,6 as

well as forms of flexibility that reflect techniques

power companies already use to manage emissions. At

this juncture, however, it cannot be known whether

The 2019 ACE rule deferred Section 7411(d) regulation of

natural gas-fired plants—now the largest part of the power

sector—for future rulemaking. 84 Fed. Reg. at 32,534.

5

6 See, e.g., Maya Domeshek and Dallas Burtraw, Resources for

the Future, Reducing Coal Plant Emissions by Cofiring with

Natural

Gas

(May

18,

2021),

https://media.rff.org/documents/RFF_IB_21-04.pdf;

M.J.

Bradley & Assoc. Pipeline Analysis 11-12, Att. to Environmental

Defense Fund ACE Comments, EPA-HQ-OAR-2017-0355-24419

(Oct. 31, 2018); Clean Air Task Force, Comments on the Clean

Power Plan 21-56, EPA-HQ-OAR-2013-0602-22612 (Dec. 1,

2014).

6

the new rule will include features that implicate the

statutory interpretative questions on which

Petitioners ask this Court to opine regarding the

proper scope of “best system of emission reduction.”

Petitioners are thus seeking an advisory opinion

concerning regulations that they believe EPA might

adopt in the future, which Petitioners fear may

resemble a defunct rule that they opposed. But this

Court does not sit to review past rules that will not be

implemented, nor to pass upon possible future rules

that have not been adopted. It does not take up

“imaginary” cases, Wash. State Grange Party v. Wash.

State Republican Party, 552 U.S. 442, 455 (2008);

“adjudicate hypothetical or abstract disputes,”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021); or “possess a roving commission to publicly

opine on every legal question,” id. And even if, after

reconsidering the approach on a “clean slate,” the

Agency had already made clear the statutory

construction it intended to apply in the future, the

Court would still properly await the promulgation of

a new regulation to review, and “‘put aside the natural

urge to proceed directly to the merits of [an] important

dispute and to “settle” it for the sake of convenience

and efficiency.’” Hollingsworth v. Perry, 570 U.S. 693,

704-05 (2013) (quoting Raines v. Byrd, 521 U.S. 811,

820 (1997)).

2. As this Court previously noted with respect to

the very same statutory provision, source category,

and air pollutant, “the first decider under the Act is

7

the expert administrative agency, the second, federal

judges.” Am. Elec. Power Co. v. Connecticut, 564 U.S.

410, 427 (2011). A real controversy over an actual,

operative EPA regulation is a necessary prerequisite

to reasoned judicial consideration of the scope of

Section 7411. If any of the legal issues Petitioners

seek to raise are actually presented in a future final

rule, then they, along with any other ostensibly

aggrieved parties, will be able to pursue judicial

review of that final agency action. See id. at 426; 42

U.S.C. § 7607(b). Reviewing courts would then be able

to judge EPA’s regulation in the light of its actual

provisions and a real-world administrative record, not

litigants’ mere speculations. That some Petitioners

portray their claims as having “constitutional[]”

dimensions, e.g., W. Va. Pet. i, is all the more reason

why the Court should wait to see if resolving those

questions proves necessary, and, if so, to do so in the

context of a live controversy over a regulation that the

administering agency actually intends to implement.

Cf. Ashwander v. TVA, 297 U.S. 288, 345-48 (1936)

(Brandeis, J., concurring).

None of the Petitioners nor their supporters

contend that either the 2015 or 2019 rule will ever be

implemented. Instead, the petitions brim with

confident prognostications about what EPA “will” do

in its new rulemaking. E.g., W. Va. Pet. 3, 15, 22;

North Am. Coal Pet. 14, 18, 20; N. Dak. Pet. 33.

Petitioners suggest that the yet-to-be-proposed new

rule will (or even must, under the D.C. Circuit’s

decision, see Westmoreland Pet. 19) replicate the

8

Clean Power Plan, including, for example, provisions

for fossil-fuel burning generators to buy emission

reduction credits created by solar or wind generators,

which Petitioners characterize as “forcing” those

generators to “subsidize” competitors. North Am. Coal

Pet. 1. See also, e.g., id. at 14 (asserting that EPA will

adopt a “Clean Power Plan 2.0”). In the absence of

even a proposed rule (let alone a final one), such

forecasts are nothing but speculation. Petitioners

admit that the Clean Power Plan is not before the

Court, and they offer no sound basis to assume that it

will provide the template for whatever regulation

emerges from EPA’s new rulemaking, or indeed to

make any particular assumptions about what a new

power plant rule will look like.

The D.C. Circuit’s decision does not compel EPA

to adopt any particular regulatory approach, let alone

mandate the Clean Power Plan’s. And far from

holding that EPA has “no limits” when it regulates

under Section 7411(d), Westmoreland Pet. i, the panel

emphasized “[t]he numerous substantial and explicit

constraints on EPA’s selection of a best system of

emission reduction,” Pet. App. 94a, see also Pet. App.

90a, 93a, 95a (describing the congressional “reins”

and “rope” “cabin[ing]” EPA discretion). The panel

held that “EPA lacks authority to ‘order the wholesale

restructuring’ of anything.” Pet. App. 100a. The

decision below merely rejected the claim, based on

words that do not appear in Section 7411, that EPA is

statutorily restricted to considering only emission

controls that can be applied “to” or “at” an individual

9

source. See, e.g., Pet. App. 64a-65a. The panel did not

require EPA, on remand, to adopt a rule resembling

the Clean Power Plan.

3. Some petitioners also urge that certiorari is

warranted to clarify the proper application of the

“major questions” doctrine. W. Va. Pet. 18-19;

Westmoreland Pet. 22–23. It is not.

No party below asserted that the major questions

doctrine denies EPA authority to regulate power

plants’ carbon dioxide emissions in the first place; to

the contrary, the State Petitioners here intervened

below to support the 2019 ACE rule, which exercised

that authority. In a decision Petitioners fail even to

cite, this Court has affirmed that Section 7411(d)

“‘speaks directly’” to carbon dioxide emissions from

power plants, Am. Elec. Power, 564 U.S. at 424, and

that “Congress delegated to EPA the decision whether

and how to regulate carbon-dioxide emissions from

powerplants,” id. at 426. The Court further explained

that, under the statute, regulation of greenhouse gas

emissions from existing coal-fired power plants

requires careful consideration of “environmental

benefit,” “our Nation’s energy needs,” and “the

possibility of economic disruption,” and that

“Congress entrust[ed] such complex balancing to EPA

in the first instance, in combination with state

regulators.” Id. at 427.

Furthermore, any “major questions” arguments

related to the particular manner in which EPA

exercises its Section 7411(d) statutory authority must

10

await the result of EPA’s new rulemaking. A case

involving an agency’s repeal of a regulatory “relic”

that will never be implemented is an unsuitable

vehicle for elaborating upon general administrative

law doctrines that turn upon regulations’ real-world

consequences.

It would be particularly inappropriate to use

Petitioners’ backward-looking critiques of the Clean

Power Plan as an occasion to explore the major

questions doctrine. According to Petitioners, that

doctrine applies to regulations that carry a certain

“‘economic and political’ heft.” W. Va. Pet. 26. But

while some Petitioners reproduce forecasts from 2015

about the Clean Power Plan’s ostensibly sweeping

effect, they fail to acknowledge the dramatic changes

that have already occurred in the sector or even to

mention the last administration’s 2019 finding that,

because of those changes, the 2015 rule would achieve

no emission reductions relative to business-as-usual

trends while imposing no costs on operators. Supra,

pp. 3-5 & nn. 3, 4. Indeed, today it is readily apparent

that the now six-year-old projections of both EPA and

challengers regarding the costs and impacts of the

2015 Clean Power Plan were grossly overstated. A

never-implemented regulation that would have

imposed no costs and reduced no emissions is not a

proper vehicle for this Court to expound upon a

doctrine that, according to Petitioners, is reserved for

regulations that impose extraordinary costs and have

transformational impacts on society.

11

4. Westmoreland Mining (Pet. 26-32) asks the

Court to take up its claim—raised by no other

petitioner—that once EPA regulates emissions of

“hazardous air pollutants” from power plants under

Section 7412 of the Clean Air Act, the agency is

precluded from regulating power plants’ emissions of

any other dangerous air pollutants, such as carbon

dioxide, under Section 7411(d). The argument rests on

a fanciful reading of a 1990 amendment originating in

the House of Representatives that merely sought to

update a cross-reference to Section 7412, thereby

retaining a statutory proviso that EPA cannot

regulate emissions of an air pollutant under Section

7411(d) when the relevant sources’ emissions of that

pollutant are regulated under Section 7412. The 1990

Clean Air Act Amendments also included a Senateoriginating provision updating the same crossreference, which likewise prevents duplicate

regulation of pollutants; both amendments were

signed into law.7

7 As amended by the House-originating language, Pub. L. No.

101-549, § 108(g), 104 Stat. 2399, 2467 (1990), and reflected in

the U.S. Code, Section 7411(d)(1) provides that each State shall:

establish[] standards of performance for any existing

source for any air pollutant (i) for which air quality

criteria have not been issued or which is not included on

a list published under section 7408(a) of this title [the

NAAQS program] or emitted from a source category

which is regulated under section 7412 of this title [the

Hazardous Air Pollutant program] but (ii) to which a

12

Every presidential administration since the 1990

Clean Air Act Amendments has rejected the

proposition advanced in Westmoreland’s petition.

Contrary to Westmoreland’s claim, Pet. 27, each

administration has understood that what the statute

prohibits is regulating a source’s emissions of any

given pollutant under both Sections 7411 and 7412.8

For decades, EPA has in fact regulated dangerous

pollutants from sources under Section 7411(d) and the

more narrowly defined “hazardous” pollutants from

the same sources under Section 7412.9

standard of performance under this section would apply

if such existing source were a new source[.]

As amended via the Senate-originating language, Pub. L. No.

101-549, § 302(a), 104 Stat. 2399, 2574 (1990), Section 7411(d)

provides that each State shall:

establish[] standards of performance for any existing

source for any air pollutant (i) for which air quality

criteria have not been issued or which is not included on

a list published under section 7408(a) of this title [the

NAAQS program] or section [74]12(b)(1)(A) but (ii) to

which a standard of performance under this section

would apply if such existing source were a new source[.]

8 See, e.g., 56 Fed. Reg. 24,468, 24,469 (May 30, 1991); 65 Fed.

Reg. 66,672, 66,674-75 (Nov. 7, 2000); 70 Fed. Reg. 15,994,

16,031-32 (Mar. 29, 2005); 73 Fed. Reg. 44,354, 44,417-18 (July

30, 2008); 80 Fed. Reg. 64,662, 64,710 (Oct. 23, 2015); 84 Fed.

Reg. 32,520, 32,533 (July 8, 2019).

9 See 65 Fed. Reg. 66,672, 66,674-75 (Nov. 7, 2000) (proposing

Section 7412 regulation of hazardous pollutants from landfills

and explicitly recognizing that Section 7411(d) emission

guidelines for non-hazardous pollutants from landfills would

13

Even if this longstanding and consistent position

warranted further examination, this would not be the

case to consider it. Westmoreland, the sole petitioner

to press this issue, is not a regulated party; it is a fuel

supplier. To reach the merits of its issue, the Court

would need to determine that Westmoreland has

standing to sue. It does not. Westmoreland’s “asserted

injury arises from the government’s allegedly

unlawful regulation (or lack of regulation) of someone

else.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562

(1992).

The

causation

and

redressability

requirements for its Article III standing “hinge on the

response of the regulated (or regulable) third party to

the government action or inaction—and perhaps on

the response of others as well,” making its standing

“‘substantially more difficult’ to establish.” Id.10

continue to apply); 68 Fed. Reg. 2,227, 2,229 (Jan. 16, 2003)

(finalizing the proposed standards while continuing to regulate

non-hazardous emissions from landfills under Section 7411(d));

68 Fed. Reg. 74,868 (Dec. 29, 2003) (approving state

implementation plans to regulate landfill gases under Section

7411(d) that apply concurrently with Section 7412 regulations

for landfills).

Westmoreland’s proffer below only highlights its failure to

meet its Article III burden. Decl. of Jeremy Cottrell at ADD-5,

No. 19-1140 (D.C. Cir. Aug. 13, 2020), ECF No. 1856447. That

2020 declaration relied on a 2015 report predicting that the

Clean Power Plan would decrease coal consumption in Montana,

id. ¶ 5, but nowhere acknowledged that decreases in coal

generation since 2015 occurred for reasons other than the neverimplemented Clean Power Plan. The declaration referenced an

ACE “illustrative policy scenario” hypothesizing a one-percent

10

14

Federal regulation of power plants’ air pollution

emissions cannot simply be assumed to cause harm to

fuel suppliers—a fact highlighted by EPA’s 2019

finding that, due to the influence of exogenous market

trends including lower natural gas prices, the Clean

Power Plan would have had no impact on the power

industry relative to business-as-usual, supra, pp. 3–4.

Whether Westmoreland will be substantially and

directly affected by the actions of regulated parties in

response to a new EPA regulation under Section

7411(d) necessarily depends upon the requirements of

that new rule. At least until a new federal emission

guideline is in place, it would be impossible to assess

any claimed impacts on coal suppliers such as

reduction in overall coal use by 2030. Id. ¶ 5 (citing 84 Fed. Reg.

at 32,562). But even assuming that a hypothetical future onepercent reduction in aggregate national demand could establish

a particular supplier’s standing today, the “scenario” was only

“one possible outcome,” 84 Fed. Reg. at 32,561, under a rule that

left it to states whether to adopt any emissions control

requirements at all, see 40 C.F.R. § 60.5740a(a)(1), (2)(i); 84 Fed.

Reg. at 32,537–38, 32,550–51. Indeed, EPA acknowledged that

ACE could, depending upon states’ implementation choices,

increase coal plants’ operations by making them more profitable

to

operate.

Regulatory

Impact

Analysis

for

the

Proposed Emission Guidelines for Greenhouse Gas Emissions

from Existing Electric Utility Generating Units (2018), EPA-HQOAR-2017-0355-21182 (Aug. 2018), https://www.epa.gov/sites/

default/files/2018-08/documents/utilities_ria_proposed_ace_

2018-08.pdf. Invocations of “uncertainty” about “customer

decisions,” Cottrell Decl. ¶ 5, further highlight the speculative

inferences involved. And Westmoreland nowhere tried to explain

how regulation under Section 7412 rather than Section 7411(d)

would redress any harms to coal suppliers.

15

Westmoreland, including whether any of their

claimed harms would be fairly traceable to the

regulation (rather than exogenous factors), or

whether

a

judicial

decision

sustaining

Westmoreland’s attack on EPA’s Section 7411(d)

authority would likely redress its asserted injury.

There are reasons to doubt that Westmoreland

could satisfy the causation and redressability

requirements for Article III standing even if an

operative EPA regulation under Section 7411(d) were

already in place. Westmoreland contends that the

1990 Amendments “dramatically increas[ed]” EPA’s

authority under Section 7412 to authorize control of

environmentally dangerous pollutants, including

carbon dioxide, under that section. Coal Industry

Pet’rs Final Opening Br. 21, No. 19-1140 (D.C. Cir.

Aug. 13, 2020), ECF No. 1856447. Since 1990,

Westmoreland argues, EPA has had a “mandatory

obligation to list” carbon dioxide under Section 7412,

the hazardous pollutant program. Id. at 34.11 But that

would likely have a greater impact on power

companies’ demand for Westmoreland’s product,

because hazardous pollutant requirements under

Section 7412 are in key respects more stringent than

those under Section 7411(d). Indeed, Westmoreland

Westmoreland suggested that certain low-emitting sources

could be exempted from regulation under Section 7412, Coal

Industry Pet’rs Opening Br. 33-34 n.8. Power plants, however,

are the very largest stationary sources of carbon dioxide

emissions, and Westmoreland has not suggested that power

plants could be exempted on that basis.

11

16

itself calls Section 7412 “the Act’s most stringent and

burdensome regulatory provision.” Pet. 7. Any

assertion that a favorable decision on its Section

7412/Section 7411(d) argument would redress

Westmoreland’s claimed injury from decreased coal

sales is thus counterintuitive and, at the very least,

impermissibly speculative. See, e.g., Clapper v.

Amnesty Intern. USA, 568 U.S. 398, 410-14 (2013).

Justiciability problems aside, Westmoreland’s

statutory argument is meritless. The argument

depends upon nullifying the Senate-originating

statutory language—approved by both houses and

signed into law by the President—which makes clear

that what Congress sought to foreclose were efforts by

EPA to use Section 7411(d) to regulate sources’

emissions of pollutants listed under Section 7412(b).

The Senate-originating amendment confirms that

Congress’s purpose in 1990 was to merely update the

Section 7412 cross-reference so as to continue to

prevent duplicate regulation of the same pollutants

from the same sources, not to introduce dramatic new

limitations into the scope of Section 7411. See Pet.

App. 130a-131a.

Westmoreland’s treatment of the Houseoriginating language is likewise wholly unpersuasive.

Westmoreland tries to wrench from its complex

phrasing an odd prohibition: If EPA has previously

regulated hazardous air pollutants from a source

category under Section 7412, it may not regulate other

dangerous pollutants from that source category under

17

Section 7411(d).12 As the panel below explained,

Westmoreland’s reading is inconsistent with

Congress’s manifest intent simply to update the

above-described statutory cross-reference. Pet. App.

126a, 130a. The most natural reading of the Houseoriginating amendment is that (as prior to 1990) EPA

may not regulate “any pollutant” from a given source

category under Section 7411(d) if emissions of that

pollutant from the same category have already been

regulated under Section 7412. As the panel concluded,

the House text “define[s] which ‘air pollutant[s]’

cannot be regulated under Section 7411(d) because

those same pollutants are already regulated under the

[National Ambient Air Quality Standards] or

Hazardous Air Pollutants programs,” Panel Op. 119.

Unlike Westmoreland’s interpretation, this reading

comports with this Court’s observation in Am. Elec.

Power, 564 U.S. at 424 n.7, that regulation is

Under Westmoreland’s theory, Section 7411(d) regulation

would be foreclosed only if EPA regulated a source category’s

hazardous air pollutants under Section 7412 before seeking to

regulate its non-hazardous emissions under Section 7411(d);

there would be no statutory barrier to Section 7411(d) regulation

if the sequence of these regulations were reversed. This “fluke of

timing,” Pet. App. 135a, is further proof of the theory’s lack of

coherence. And its severe flaws only go on: If the “literal”

meaning of the House text, see Westmoreland Pet. 27, were

dispositive, then EPA could regulate any pollutant (such as

carbon dioxide) “for which air quality criteria have not been

issued,” regardless of whether the source category or pollutant is

regulated under Section 7412, since that text uses the disjunctive

“or.” See 42 U.S.C. § 7411(d)(1)(i) (tenth word).

12

18

precluded under Section 7411(d) when the “pollutant

in question” has been regulated under Section 7412,

and with the central holding of that case: that Section

7411(d) authorizes EPA to regulate carbon dioxide

emissions from existing power plants, id. at 424-27.

Westmoreland’s strained theory conflicts with

additional language included in the 1990

Amendments to make abundantly clear that the 1990

Amendments did not diminish EPA’s pre-existing

Section 7411 authority. See 42 U.S.C. § 7412(d)(7)

(“No emission standard or other requirement

promulgated under this section shall be interpreted,

construed or applied to diminish or replace the

requirements of a more stringent emission limitation

or other applicable requirement established pursuant

to section 7411 of this title”); see also Pet. App. 133a.

Westmoreland’s argument is untenable, and no

further review on this issue is warranted.

CONCLUSION

The petitions for certiorari should be denied.

19

Respectfully submitted,

Sean H. Donahue

Counsel of Record

DONAHUE, GOLDBERG

& LITTLETON

1008 Penn. Ave., SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Vickie L. Patton

Benjamin Levitan

ENVIRONMENTAL

DEFENSE FUND

1875 Connecticut Ave., NW

Suite 600

Washington, DC 20009

(202) 387-3500

vpatton@edf.org

blevitan@edf.org

Counsel for Environmental

Defense Fund

David Doniger

Melissa J. Lynch

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th St., NW

Suite 300

Washington, DC

20005

(202) 289-2403

ddoniger@nrdc.org

llynch@nrdc.org

Counsel for Natural

Resources Defense

Council

20

Joanne Spalding

SIERRA CLUB

2101 Webster Street

Suite 1300

Oakland, CA 94612

(415) 977-5725

joanne.spalding@

sierraclub.org

Andres Restrepo

SIERRA CLUB

50 F Street, NW

8th Floor

Washington, DC 20001

(415) 977-5725

andres.restrepo@

sierraclub.org

Counsel for Sierra Club

Ann Brewster

Weeks

James P. Duffy

CLEAN AIR TASK

FORCE

114 State Street,

6th Floor

Boston, MA 02109

(617) 359-4077

aweeks@catf.us

jduffy@catf.us

Counsel for American

Lung Association,

American Public

Health Association,

Appalachian

Mountain Club,

Clean Air Council,

Clean Wisconsin,

Conservation Law

Foundation, and

Minnesota Center for

Environmental

Advocacy

21

Brittany E. Wright

Jon A. Mueller

CHESAPEAKE BAY

FOUNDATION, INC.

6 Herndon Avenue

Annapolis, MD 21403

(443) 482-2025

bwright@cbf.org

jmueller@cbf.org

Counsel for Chesapeake

Bay Foundation, Inc.

Howard Learner

Scott Strand

ENVIRONMENTAL LAW &

POLICY CENTER

35 E. Wacker Dr.

Suite 1600

Chicago, IL 60601

(312) 673-6500

hlearner@elpc.org

sstrand@elpc.org

Counsel for Environmental

Law & Policy Center

Clare Lakewood

Elizabeth A. Jones

CENTER FOR

BIOLOGICAL

DIVERSITY

1212 Broadway,

Suite 800

Oakland, CA 94612

(415) 844-7121

clakewood@biological

diversity.org

ljones@biological

diversity.org

Counsel for Center

for Biological

Diversity

22

Jeff Dennis

ADVANCED ENERGY

ECONOMY

1010 Vermont Ave, N.W.,

3d Floor

Washington, D.C. 20005

(202) 380-1950

jdennis@aee.net

Counsel for Advanced

Energy Economy

Ben Norris

SOLAR ENERGY

INDUSTRIES

ASSOCIATION

1425 K St., N.W.,

Suite 1000

Washington, D.C.

20005

(202) 682-0556

bnorris@seia.org

Counsel for Solar

Energy Industries

Association

Gene Grace

AMERICAN CLEAN

POWER ASSOCIATION

1501 M St., N.W.

Washington, D.C. 20005

Telephone: (202) 657-7434

ggrace@awea.org

Counsel for American Clean

Power Association

AUGUST 2021