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

No. 20-1530

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.,

Respondents.

——————

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONERS

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

MICHAEL R. WILLIAMS*

Special Counsel

THOMAS T. LAMPMAN

CALEB A. SECKMAN

Assistant Solicitors

General

Counsel for Petitioner State of West Virginia

[additional counsel listed after signature page]

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—with no limits on what the

agency can require so long as it considers cost, nonair

impacts, and energy requirements?

II

PARTIES TO THE PROCEEDING

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.

Petitioner in 20-1531 is The North American Coal

Corporation.

Petitioner in 20-1778 is Westmoreland Mining

Holdings, LLC.

Petitioner in 20-1780 is the State of North Dakota.

Respondents in 20-1530 who filed briefs in support of

certiorari were America’s Power, Basin Electric Power

Cooperative, and the National Mining Association. Each

was a respondent-intervenor below.

Respondents in 20-1530, 20-1531, 20-1778, 20-1780 who

were petitioners below and filed briefs in opposition to

certiorari are Consolidated Edison, Inc., Exelon

Corporation, National Grid USA, New York Power

Authority, Power Companies Climate Coalition,

Sacramento Municipal Utility District, 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, the Sierra

Club, Advanced Energy Economy, American Clean

Power Association (successor of the American Wind

Energy Association), Solar Energy Industries

III

Association, 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 (Colorado), City of Chicago, City and

County of Denver, City of Los Angeles, City of New York,

City of Philadelphia, and the City of South Miami

(Florida).

Respondent in 20-1530, 20-1531, 20-1778, 20-1780 who

was a petitioner-intervenor below and filed a brief in

opposition to certiorari is the State of Nevada.

Respondents in 20-1530, 20-1531, 20-1778, 20-1780 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 (substituted for the

previous administrator under Supreme Court Rule 35.3).

Respondents who were petitioners below and did not

file any brief at the certiorari stage are, by court of appeals

case number, as follows:

In 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 19-1185: Biogenic CO2 Coalition.

IV

Respondents who were respondent-intervenors below

and did not file any brief at the certiorari stage are

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., 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, Newmont Nevada Energy Investment, and

PowerSouth Energy Cooperative.

V

TABLE OF CONTENTS

Page

Introduction .......................................................................... 1

Opinion Below ....................................................................... 2

Jurisdiction............................................................................ 2

Statutory Provisions Involved ............................................ 2

Statement .............................................................................. 2

Summary Of Argument ..................................................... 12

Argument ............................................................................ 14

I.

Section 111 Does Not Vest EPA

With Industry-Transforming,

State-Displacing Power .............................................. 14

A. Congress Did Not Clearly Delegate to

EPA Power to Tackle the Major Questions

Inherent in Restructuring Full Industries ......... 14

B. Congress Did Not Clearly Delegate to

EPA Power to Upend Traditional State and

Federal Roles ......................................................... 26

II. Section 111’s Text and Context Require

Source-Specific Regulation ........................................ 31

A. Section 111(a)(1) Reveals A Source-Specific

Focus ....................................................................... 33

B. Other Parts Of Section 111 Confirm EPA’s

“Inside-the-Fenceline” Power .............................. 38

C. The CAA As A Whole Confirms Section

111(d)’s Limited Scope........................................... 42

VI

TABLE OF CONTENTS

(continued)

III. The Court Should Construe Section 111

To Avoid Substantial Non-Delegation

Questions ...................................................................... 44

Conclusion ........................................................................... 49

VII

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v.

United States,

295 U.S. 495 (1935) .................................................. 46-47

Abuelhawa v. United States,

556 U.S. 816 (2009) ....................................................... 33

Ala. Ass’n of Realtors v. Dep’t of Health &

Hum. Servs.,

141 S. Ct. 2485 (2021) ............................16, 18, 20, 22, 24

Alaska Dep’t of Env’t Conservation

v. EPA,

540 U.S. 461 (2004) ....................................................... 28

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) ....................................................... 42

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ....................................................... 45

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ....................................................... 18

Am. Mun. Power-Ohio v. EPA,

98 F.3d 1372 (D.C. Cir. 1996) ........................................ 3

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

Serv. Comm’n,

461 U.S. 375 (1983) ....................................................... 27

ASARCO Inc. v. EPA,

578 F.2d 319 (D.C. Cir. 1978) ...................................... 40

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

AT&T Corp. v. Iowa Util. Bd.,

525 U.S. 366 (1999) ....................................................... 28

Atl. City Elec. Co. v. FERC,

295 F.3d 1 (D.C. Cir. 2002) .......................................... 17

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) ....................................................... 27

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) ....................................................... 43

City of Arlington v. FCC,

569 U.S. 290 (2013) ....................................................... 15

Cyan, Inc. v. Beaver Cnty. Emps. Ret.

Fund,

138 S. Ct. 1061 (2018) ............................................. 33, 39

Facebook, Inc. v. Duguid,

141 S. Ct. 1163 (2021) ................................................... 36

FCC v. AT&T,

562 U.S. 397 (2011) ....................................................... 37

FDA v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) ............................2, 14, 16, 21, 23, 25

Fed. Power Comm’n v. La. Power &

Light Co.,

406 U.S. 621 (1972) ....................................................... 44

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

FERC v. Elec. Power Supply Ass’n,

577 U.S. 260 (2016) ..................................... 27, 29, 30, 41

FTC v. Bunte Bros.,

312 U.S. 349 (1941) ....................................................... 22

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................16, 18, 23, 24, 26

Graham Cnty. Soil & Water Cons. Dist. v.

U.S. ex rel. Wilson,

559 U.S. 280 (2010) ....................................................... 33

Gundy v. United States,

139 S. Ct. 2116 (2019) ....................................... 15, 44, 45

Herrmann v. Cencom Cable Assocs., Inc.,

978 F.2d 978 (7th Cir. 1992) ......................................... 33

Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc.,

452 U.S. 264 (1981) ....................................................... 28

Hughes v. Talen Energy Mktg., LLC,

136 S. Ct. 1288 (2016) ................................................... 27

Indus. Union Dept., AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ................................................. 16, 44

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ....................................................... 42

Int’l Union, United Auto., Aerospace &

Agr. Implement Workers of Am.,

UAW v. OSHA,

938 F.2d 1310 (D.C. Cir. 1991) .................................... 46

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Intel Corp. Inv. Pol’y Comm. v. Sulyma,

140 S. Ct. 768 (2020) ..................................................... 44

Janus v. Am. Fed’n of State, Cnty. & Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) ................................................... 26

King v. Burwell,

576 U.S. 473 (2015) ..................................... 16, 20, 24, 38

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ................................................... 15

Koons Buick Pontiac GMC, Inc. v. Nigh,

543 U.S. 50 (2004) ......................................................... 33

Lawson v. Suwannee Fruit & S.S. Co.,

336 U.S. 198 (1949) ....................................................... 39

Life Techs. Corp. v. Promega Corp.,

137 S. Ct. 734 (2017) ..................................................... 34

Marshall Field & Co. v. Clark,

143 U.S. 649 (1982) ....................................................... 44

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 18, 25, 48

MCI Telecomms. Corp. v. Am. Tel. &

Tel. Co.,

512 U.S. 218 (1994) ........................................... 16, 21, 36

Mexichem Fluor, Inc. v. EPA,

866 F.3d 451 (D.C. Cir. 2017) ...................................... 24

Michigan v. EPA,

268 F.3d 1075 (D.C. Cir. 2001) ...................................... 1

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Michigan v. EPA,

576 U.S. 743 (2015) ....................................................... 46

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ....................................................... 40

In re Murray Energy Corp.,

788 F.3d 330 (D.C. Cir. 2015) ...................................... 25

Nat’l Asphalt Pavement Ass’n v. Train,

539 F.2d 775 (D.C. Cir. 1976) ...................................... 35

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ..................................................... 35

Nat’l Fed. of Indep. Business v. Sebelius,

132 S. Ct. 2566 (2012) ................................................... 30

Nat’l Rev., Inc. v. Mann,

140 S. Ct. 344 (2019) ..................................................... 26

Nat’l-Southwire Aluminum Co. v. EPA,

838 F.2d 835 (6th Cir. 1988) ......................................... 43

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ............................................. 37, 39

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

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ....................................................... 27

Puerto Rico v. Franklin Cal. Tax-Free Tr.,

136 S. Ct. 1938 (2016) ................................................... 20

Reynolds v. United States,

565 U.S. 432 (2012) ....................................................... 49

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ....................................................... 45

Synar v. United States,

626 F. Supp. 1374 (D.D.C. 1986) ................................. 46

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) ....................................................... 40

Territory of Guam v. United States,

141 S. Ct. 1608 (2021) ............................................. 33, 39

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ......................................... 27

Touby v. United States,

500 U.S. 160 (1991) ....................................................... 45

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975) ................................................... 13, 28

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) ............................................. 26, 31

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ................................ 15, 20

Union Elec. Co. v. EPA,

427 U.S. 246 (1976) ....................................................... 43

United Rentals Nw., Inc. v. Yearout

Mech., Inc.,

237 P.3d 728 (N.M. 2010) ............................................. 41

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Dist. Ct. In & For

Eagle Cnty.,

401 U.S. 520 (1971) ....................................................... 36

United States v. District of Columbia,

669 F.2d 738 (D.C. Cir. 1981) ...................................... 15

United States v. Pinson,

331 F.2d 759 (5th Cir. 1964) ......................................... 41

United States v. Raynor,

302 U.S. 540 (1938) ....................................................... 36

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................... 12, 15, 17, 22, 23, 33, 39

West Virginia v. EPA,

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

Whitman v. Am. Trucking Assocs.,

531 U.S. 457 (2001) ..................................... 17, 45, 46, 47

Will v. Mich. Dep’t of State Police,

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

Yakus v. United States,

321 U.S. 414 (1944) ................................................. 46, 49

Zuni Pub. Sch. Dist. No. 89 v.

Dep’t of Educ.,

550 U.S. 81 (2007) ......................................................... 15

Statutes

15 U.S.C. § 18 ...................................................................... 48

XIV

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(continued)

Page(s)

15 U.S.C. § 18a .................................................................... 48

15 U.S.C. § 717f................................................................... 48

15 U.S.C. § 792 .................................................................... 35

28 U.S.C. § 1254 .................................................................... 2

42 U.S.C. § 7401 ...............................................2, 5, 28, 35, 43

42 U.S.C. § 7409 ............................................................ 46, 47

42 U.S.C. § 7410 .................................................................. 42

42 U.S.C. § 7411 .............................. 3, 4, 5, 12, 19, 23, 28, 31,

32, 34, 37, 39, 40, 41, 47

42 U.S.C § 7412 .................................................................. 3-4

42 U.S.C. § 7419 .................................................................... 4

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

42 U.S.C. § 7475 .................................................................... 3

42 U.S.C. § 7491 .................................................................. 43

42 U.S.C. § 7503 .................................................................... 3

42 U.S.C. § 7545 .................................................................... 3

42 U.S.C. § 7602 .............................................................. 2, 34

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

42 U.S.C. § 7651f ................................................................. 43

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

XV

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(continued)

Page(s)

Regulations

40 C.F.R. § 60.21 ................................................................. 22

40 C.F.R. § 60.5745 (2015) ................................................. 30

40 C.F.R. § 60.5780 (2015) ................................................. 30

40 Fed. Reg. 53,340 (Nov. 17, 1975) ............................ 5, 6, 8

60 Fed. Reg. 65,387 (Dec. 19, 1995) .............................. 6, 22

61 Fed. Reg. 9,905 (Mar. 12, 1996).................................... 22

70 Fed. Reg. 28,606 (May 18, 2005) .............................. 6, 22

79 Fed. Reg. 34,830 (June 18, 2014).................................... 6

80 Fed. Reg. 64,510 (Oct. 23, 2015) ..................................... 8

Other Authorities

Am. Clean Energy & Security Act, H.R.

2454, 111th Cong. (2009) .............................................. 25

Am. Energy Innovation Act of 2020, S.

2657, 116th Cong. (2020) .............................................. 25

BLACK’S LAW DICTIONARY (11th ed. 2019) ...................... 37

Clean Air Act Amendments of 1987:

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

S.1384 before the Subcomm. on Env’t

Prot. of the S. Comm. on Env’t & Pub.

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

Clean Energy Jobs & Am. Power Act,

S. 1733, 111th Cong. (2009) .......................................... 25

XVI

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(continued)

Page(s)

Climate Prot. Act of 2013, S. 332, 113th

Cong. (2013)................................................................... 25

EIA, DIRECT FEDERAL FINANCIAL

INTERVENTIONS AND SUBSIDIES IN

ENERGY IN FISCAL YEAR 2016

(Apr. 24, 2018) ............................................................... 25

EPA, DKT. NO. EPA-HQ-OAR-2013-060236850, CO2 EMISSION PERFORMANCE

RATE AND GOAL COMPUTATION

TECHNICAL SUPPORT DOCUMENT FOR

CPP FINAL RULE (Aug. 2015) .................................. 7-8

EPA, FACT SHEET: PROPOSED

AFFORDABLE CLEAN ENERGY RULE—

OVERVIEW (Aug. 2018) ................................................. 21

EPA, REGULATORY IMPACT ANALYSIS FOR

THE CLEAN POWER PLAN FINAL RULE

(Oct. 23, 2015) ................................................................ 20

Further Consolidated Appropriations Act

of 2020, Pub. L. No. 116-94 ......................................... 25

H.R. 17255, 91st Cong. (1970) ............................................. 6

H.R. REP. NO. 1146, 91st Cong.,

2d Sess. (1970) ............................................................... 43

Lisa Heinzerling & Rena I. Steinzor, A

Perfect Storm: Mercury and the Bush

Administration, 34 ENV’TL L. REP.

10297 (2004) ................................................................... 43

XVII

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(continued)

Page(s)

MERRIAM WEBSTER’S COLLEGIATE

DICTIONARY (10th ed. 1995) ................................... 40-41

NERA ECONOMIC CONSULTING,

POTENTIAL ENERGY IMPACTS OF THE

EPA PROPOSED CLEAN POWER PLAN

(Oct. 2014) ...................................................................... 20

OXFORD ENGLISH DICTIONARY

(2d ed. 1989) ............................................................ 35, 40

S. 3546, S. 4358, 91st Cong., 116 Cong.

Rec. 20601 (1970) ............................................................ 6

S. Con. Res. 8, S. Amdt. 646,

113th Cong. (2013) ........................................................ 24

S.J. Res. 24, 114th Cong. (2015) ........................................ 25

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (1968) ....................................................... 34

William N. Eskridge, Jr. & Philip P.

Frickey, Quasi-Constitutional Law:

Clear Statement Rules As

Constitutional Lawmaking, 45 VAND.

L. REV. 593 (1992) .................................................... 15-16

INTRODUCTION

Seven years ago, the Environmental Protection

Agency tried to name itself the country’s central energy

planning authority by reshaping the power grids and

seizing control over electricity production nationwide.

Through reverse-engineered performance standards and

a convoluted reading of Section 111(d) of the Clean Air

Act, EPA would have forced certain power plant owners

to slash hours, close their facilities, or subsidize

competitors in the renewable-energy industry. States

would have had to oversee these transformations, and

they and their residents would have borne the heavy costs

of lost generation and jobs. EPA thus weaponized a

statute intended to improve pollution controls at regulated

facilities, using it to bankrupt industries that the agency

disfavored instead.

EPA reconsidered a few years after conceiving this

idea and found that it did not have statutory power to

launch an effort of that scale. The D.C. Circuit, however,

held that Section 111 did not justify that return to

restraint. Save for a few general factors EPA was to take

into account, the lower court told EPA it has “no limits”

on the emission-related measures it can impose—on any

economic sector or almost any actor.

EPA does not have this kind of “roving commission to

achieve pure air or some other laudable goal,” Michigan

v. EPA, 268 F.3d 1075, 1084 (D.C. Cir. 2001). But the

decision below threatens to give it one. First, it allows

EPA to resolve questions of vast political and economic

importance without a clear textual statement that

Congress wanted it to do so. Second, it strips traditional

state authority with—again—no clear statement that

Congress agreed. Third, it ignores statutory constraints

that limit EPA to measures that regulated facilities can

2

achieve, giving EPA multi-billion-dollar power through

overbroad readings of a few select words. And fourth, it

raises serious constitutional concerns because it permits

EPA to exercise extraordinary lawmaking power with no

intelligible standards to keep it in check.

Ultimately, EPA’s efforts were no ordinary regulatory

action. And no matter “how serious the problem” at stake,

an agency “may not exercise its authority in a manner that

is inconsistent with the administrative structure that

Congress enacted into law.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 125 (2000) (cleaned up). The

Court should reverse.

OPINION BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit (JA.53-255) is reported at

985 F.3d 914.

JURISDICTION

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

2021. The petition for certiorari was timely filed on April

29, 2021. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The Clean Air Act’s relevant provisions appear at No.

20-1530 Pet.App.204a-209a.

STATEMENT

1. The Clean Air Act targets air pollution “at the

source.” 42 U.S.C. § 7401(a)(3). Sources can be mobile,

like cars, or stationary. Id. § 7602(z). A “stationary

source” is “any building, structure, facility or installation

3

which emits or may emit any air pollutant.”

§ 7411(a)(3) (emphases added).

Id.

The CAA deploys two approaches for controlling

emissions.

In the first, Congress set metrics that limit emissions

to a specific amount or level—regardless whether sources

can meet those standards and continue to operate. The

Act’s Acid Deposition Control program is one example: It

creates a cap-and-trade system to reduce total sulfur

dioxide and nitrogen oxide emissions by a set number. 42

U.S.C. § 7651(b). Covered sources receive an emission

“allowance,” and (with certain exceptions) they must do

whatever it takes to stay within it. See Am. Mun. PowerOhio v. EPA, 98 F.3d 1372, 1373 (D.C. Cir. 1996). The

Stratospheric Ozone Production Program is more

ambitious, aiming to “phase-out” certain ozone-depleting

substances through a detailed statutory process and

schedule. 42 U.S.C. § 7671d. In the same way, EPA may

“prohibit[]” certain “offending” substances outright when

regulating mobile sources. Id. § 7545(c)(1).

In the second and more common approach, Congress

pushed emission-specific goals through improved

technologies and procedures. Unlike the narrower

programs targeting specific pollutants, these provisions

tie standards to what individual sources can do with

available techniques. In New Source Review, for example,

EPA ensures that new or modified stationary sources use

the “best available control technology” or match the

“lowest achievable emission rate.”

42 U.S.C.

§§ 7475(a)(4), 7503(a)(2) (emphases added).

The

Hazardous Air Pollutants program’s first phase similarly

requires “the maximum degree of reduction in emissions”

that sources can achieve through source-specific

“measures, processes, methods, systems or techniques.”

4

Id. § 7412(d)(2). Likewise, Congress relieved nonferrous

smelters from certain requirements if they cannot comply

using “reasonably available” technology. Id. § 7419. And

for solid-waste incinerators, EPA sets standards “based

on methods and technologies” that have “site specific”

effects. Id. § 7429(a)(3).

2. Congress took the second, process-focused

approach in Section 111, which provides for “standards of

performance” for stationary sources. Embracing notions

of achievability and real-world impact, Congress defined

“standard of performance” as 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.

42 U.S.C. § 7411(a)(1).

Under Section 111(b), EPA sets standards of

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

§ 7411(b)(1)(B). But under Section 111(d), the agency

plays a secondary role to the States in regulating existing

ones. Id. § 7411(d). EPA first determines the “best

system of emission reduction.” Id. § 7411(a)(1), (d)(1).

Then it promulgates a “procedure” (“similar” to that for

state implementation plans under Section 110) for States

to submit “plan[s]” setting “standards of performance” for

individual sources within their borders. Id. § 7411(d)(1).

These standards should “reflect[]” the “degree of emission

limitation achievable” through the EPA-identified “best

5

system,” but EPA “shall permit” States to tailor

standards based on source-specific factors like a facility’s

“remaining useful life.” Id. § 7411(a)(1), (d)(1). Section

111(d)’s repeated emphasis on state discretion tracks

Congress’ finding that air pollution prevention and control

“is the primary responsibility of States and local

governments.” Id. § 7401(a)(3). Indeed, EPA may

directly regulate existing sources only if a State fails to

submit or enforce a “satisfactory plan.” Id. § 7411(d)(2).

Section 111’s text and context confirm that Congress

had available, on-site controls in mind. See, e.g., 40 Fed.

Reg. 53,340, 53,344 (Nov. 17, 1975) (explaining in preamble

to original Section 111(d) regulations that a “technologybased approach” allows for source-specific, “meaningful

controls”). Section 111 specifically defines a source

“owner or operator,” for instance, 42 U.S.C. § 7411(a)(5),

but never says that EPA can impose standards of

performance on “owners or operators.” Instead, it bars

them from “operat[ing]” a “source” in violation of the

performance standard “applicable to such source.” Id.

§ 7411(e). When numbers-based emission standards are

infeasible, EPA may mandate a “design, equipment, work

practice, or operational standard” to accomplish the same

regulatory goals. Id. § 7411(h)(1). And the requirements

for case-specific waivers focus on what individual sources

can achieve, too.

Waivers encourage “innovative

technological system[s]” that have not yet been

adequately demonstrated; before issuing one, EPA must

consider “the design, installation, and capital cost of the

technological system or systems.” Id. § 7411(j)(1)(A), (D),

(F).

Given these constraints, EPA correctly expected

Section 111(d) would be narrowly applied, State plans

would “be much less complex” than those under other

6

parts of the Act, and “the number of designated facilities

per State should be few.” 40 Fed. Reg. at 53,345 (1975

regulations). Before 2015, EPA issued only seven Section

111(d) regulations in over 40 years. JA.75-76 (listing

regulations).

These rules concerned four localized

pollutants from five source categories, 79 Fed. Reg.

34,830, 34,844 (June 18, 2014), and none was directed

toward ubiquitous pollutants like carbon. Nor did EPA

try to use Section 111(d) to regulate activities beyond a

specific source’s fenceline. The closest it came was one

rule issued under multiple CAA provisions and another

that succumbed to a court challenge on other grounds—

both allowed trading as a compliance mechanism but

grounded the substantive standards in what individual

sources could achieve. 60 Fed. Reg. 65,387, 65,402 (Dec.

19, 1995); 70 Fed. Reg. 28,606, 28,616 (May 18, 2005), rule

vacated by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir.

2008).

Congress gave little thought to Section 111(d), either.

The House did not even propose to regulate existing

sources in the original 1970 legislation. H.R. 17255, 91st

Cong. (1970), as reprinted in 2 1970 Leg. Hist. at 910-40.

Section 111(d) emerged as a compromise with the Senate,

a minor provision nestled in a section focused on new

sources. See S. 3546, S. 4358, 91st Cong., 116 Cong. Rec.

20601 (1970). Years later, a lead architect of the 1990 CAA

amendments called Section 111(d) “some obscure, neverused section of the law.” Clean Air Act Amendments of

1987: Hearings on S.300, S.321, S.1351 & S.1384 before the

Subcomm. on Env’t Pro. of the S. Comm. on Env’t & Pub.

Works, 100th Cong. 13 (1987).

3. Things changed when EPA finalized the Clean

Power Plan, or CPP, in October 2015. JA.273. After fourand-a-half decades of obscurity, the CPP transformed

7

Section 111(d) into a tool to do unilaterally what Congress

purportedly “wouldn’t”—“lead[] global efforts to address

climate change.” JA.222. EPA took a new approach to

curbing emissions designed to alter the makeup of the

nation’s energy grids—changing which plants generate

electricity and where they generate it.

The CPP required States to achieve reductions that

EPA admitted individual sources could not meet using

current or even near-future technologies and process

improvements. JA.853-54. To address this otherwise fatal

flaw, EPA asserted new authority to regulate source

owners and operators, as opposed to the sources

themselves. JA.543, 737, 761-62.

EPA then crafted a figure it termed the “adjusted CO2

emission rate.” This accounting trick nominally counted

the emission reductions individual plants could achieve,

but it relied mainly on how much EPA believed source

owners could invest in different generators more

acceptable to the agency. Specifically, EPA divided the

amount of emissions from a given source by the amount of

that source’s generation and the amount of generation

from EPA-preferred, zero-emitting sources. JA.1604-06.

The more generation from agency-approved sources

regulated source owners helped fund, the bigger the

denominator and the lower the “adjusted” rate. In this

way, EPA baked into its metric the idea that owners and

operators would subsidize renewable-energy sources like

windmills and solar panels.

EPA used this approach to impose an impossible-toachieve standard on coal-fired plants—limiting them to

two-thirds of the emissions the agency calculated they

could achieve using then-current technology. See JA.300;

EPA, DKT. NO. EPA-HQ-OAR-2013-0602-36850, CO2

EMISSION PERFORMANCE RATE AND GOAL COMPUTATION

8

TECHNICAL SUPPORT DOCUMENT FOR CPP FINAL RULE

12 (Aug. 2015); see also JA.1661 (setting similarly

unachievable limit for natural gas plants). What’s more,

EPA had long said that Section 111(d) regulations would

be “less stringent” than corresponding new-source rules,

considering the relative costs and benefits of retrofitting

existing facilities versus incorporating new technologies

into a construction blueprint. 40 Fed. Reg. at 53,340. Yet

the CPP’s targets for existing sources were lower than the

standards EPA issued the same day for new sources. 80

Fed. Reg. 64,510, 64,513 (Oct. 23, 2015).

The CPP, then, did not impose traditional emission

limits. Instead, EPA created a restrictive credit system

that required sources to subsidize “energy generated or

saved with zero associated CO2 emissions” elsewhere.

JA.1605, 1615-16.

EPA was candid about the consequences of a

“standard” that made coal- and gas-fired plants’ business

models functionally unlawful. The CPP would have forced

some operators into new lines of business, cutting existing

operations and investing in alternate generation types

instead. JA.593-94. Others would have had to subsidize

their competitors’ or out-of-State companies’ investments

to keep existing power plants online. JA.668-69. And

economic realities as they were, some plants would have

closed. JA.226-29.

Source owners and operators would have also faced

staggering implementation costs, and consumers would

have paid much higher utility bills. JA.226. The CPP

would have forced the States to reorder their electricity

infrastructure to meet energy needs—those most

dependent on fossil-fuel-fired energy sources would have

borne the brunt of it. The CPP also did away with States’

guaranteed flexibility to adjust performance standards

9

based on sources’ individual characteristics. JA.1237.

Instead, it required States to impose EPA’s investment

preferences unless they adopted mass-based emission

allowances that would achieve the same dramatic changes,

or could somehow create equivalent state-level programs.

JA.1008-37.

4. Faced with this alarming scheme, twenty-seven

States and many other parties challenged the CPP in the

D.C. Circuit. JA.1738. The challengers urged that court

to stay the CPP, but it refused. Order, West Virginia v.

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

This Court, however, responded. In February 2016 it

stayed the CPP, sounding the alarm that EPA’s new

approach to Section 111(d) was likely defective. West

Virginia v. EPA, 136 S. Ct. 1000 (2016) (No. 15A773). The

lower court then held the challenges in abeyance while

EPA reconsidered the rule. JA.88. It later dismissed the

petitions before issuing a decision. JA.88.

5. Meanwhile, EPA heeded this Court’s “not-sosubtle hint,” JA.224, and repealed the CPP in July 2019.

JA.1725. EPA concluded that the CPP had “significantly

exceeded” the agency’s statutory authority, and it

returned to Section 111(d)’s traditional reading—one

limited to control systems that can be applied at individual

sources. JA.1731. The major questions canon of

construction bolstered this approach given the CPP’s

consequences and broad scope. JA.1770-71. EPA also

explained that the rule undermined the CAA’s cooperative

federalism framework and infringed areas of traditional

state sovereignty. JA.1773-78. And it found telling the

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

contrary approach. JA.1771-72. EPA thus saw no way to

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

10

discretion of this breadth”—including power to regulate

“fundamental sector[s] of the economy.” JA.1772.

EPA replaced the CPP with new Section 111(d)

guidelines for existing coal-fired power plants, saving

natural-gas-fired plants for another rulemaking. JA.1786.

EPA’s Affordable Clean Energy rule (“ACE”) affirmed

that measures achievable on only a regional or grid-wide

level could not be a valid “system of emission reduction.”

JA.89-94.

6. A new group of States and other parties challenged

the CPP repeal and ACE replacement, with many others

(including Petitioners) intervening to support both rules.

JA.95-96, 224. In January 2021, the D.C. Circuit issued a

2-1 decision vacating and remanding ACE and the CPP’s

repeal. JA.53-215, 224.

The majority rejected EPA’s position that Section

111(d) requires a more inhibited view of EPA’s powers

than the agency had claimed in the CPP. The majority

relied on an expansive understanding of two words—

“system” and “application,” JA.108-10—found in Section

111(a)(1)’s definition of “standard of performance.” These

standards in turn apply to a particular source, but the

majority concluded that EPA could rely on systems that

apply to “the source category” as a whole or all

“emissions” in general. JA.115, 118.

The majority also rebuffed the renewed regulatory

restraint that led EPA to repeal the CPP. According to

the majority, EPA unduly “tied its own hands” even in the

CPP by considering only systems that “target supplyside” activities or reduce emissions directly rather than

offset their effects. JA.143 n.9. The majority thought

Section 111 was a broader statute—“Congress imposed no

limits on the types of measures the EPA may consider” as

11

long as EPA satisfies the minimal directive to “take

account” of cost, nonair health and environmental impacts,

and energy requirements. JA.108. It rejected EPA’s view

that the statute includes more substantive constraints,

JA.106-08, and all but instructed the agency to wield the

full swath of powers it concluded Congress had bestowed,

JA.137.

The majority further concluded that Section 111 does

not offend what it labeled the “so-called ‘major questions

doctrine.’” JA.135. Applying a self-created standard, the

majority asked only whether “it [was] implausible in light

of the statute and subject matter in question that

Congress authorized such unusual agency action.”

JA.135-36. It concluded it was not, emphasizing that

Congress gave EPA power to regulate generally power

plants’ greenhouse gas emissions. JA.188-93.

Similarly, the court rejected the idea that federalism

concerns triggered a separate clear-statement

requirement. Many States argued that the CPP infringed

their primary authority over electricity generation and

intrastate energy needs. The majority, however, declared

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

state regulation.” JA.154-61. So long as EPA exercises

its power in the name of pollution mitigation, the majority

saw nothing wrong with mandating measures with

serious, direct consequences for States’ electricitygeneration fleets. JA.154-61.

7. Concurring in part and dissenting in part, Judge

Walker would have held that EPA “was required to repeal

[the CPP] and wrong to replace it” under Section 111.

JA.217. Although he based that conclusion on a separate

12

question no longer at issue,* he was also highly skeptical

that Congress implicitly delegated the vast power the

CPP and majority opinion reflect—particularly

considering the major consequences that would have

followed. JA.217-33. The CPP was designed to push

“groundbreaking” restructuring of the country’s power

sector and slash carbon emissions “equal to the annual

emissions from more than 166 million cars,” while levying

“almost unfathomable costs.”

JA.225-26 (footnotes

omitted).

The dissent accordingly found nothing “minor” about

“one of the most consequential rules ever proposed by an

administrative agency.” JA.225. How to address climate

change and “who should pay” for solutions are matters of

“vast economic political significance.” JA.229 (quoting

Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)

(“UARG”)). And a little play in the enabling statute’s

joints was not enough to give EPA the go-ahead to

address so great an issue: “Either a statute clearly

endorses a major rule, or there can be no major rule.”

JA.230, 232.

SUMMARY OF ARGUMENT

I. Section 111 of the Clean Air Act does not clearly give

EPA authority to upend the power industry. Two

independent canons of construction confirm that the D.C.

Circuit misconstrued that provision.

First, EPA now wields power to decide major

questions implicating hundreds of billions of dollars, tens

of thousands of potentially regulated parties, and years of

Judge Walker thought that Congress had disabled EPA from

regulating under Section 111 pollutants “emitted from a source

category which is regulated under [Section 112]” already—like coalfired power plants. JA.232 (quoting 42 U.S.C. § 7411(d)).

*

13

congressional wrangling. The agency may compel plant

owners to pay competitors. It can even force plants to

shut down. Yet Congress did not clearly say in any part

of the CAA, much less Section 111, that EPA can exercise

this transformative power. That omission dooms any

claim that EPA can.

Second, the D.C. Circuit’s opinion reordered the

traditional “division of responsibilities” between States

and the federal government—over clean air and energyrelated issues alike. Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60, 79-80 (1975).

Regulating electricity

generation is the States’ domain. The CAA, too, assigns

the States primary responsibility for regulating existing

emission sources. Yet the D.C. Circuit’s approach to

Section 111 allows EPA to drive the essential decisions in

both areas. If Congress meant for that result, it would

have clearly said so. Here again, it did not.

II. The text Congress set down limits EPA’s power,

too. Section 111 directs EPA to identify an “achievable”

“best system of emission reduction”; that system is then

used to calculate guidelines, and the States must develop

plans for sources within their borders to meet them.

Everything about Section 111—the words Congress used,

the structure, the context—shows that “system” means

measures implemented at the source level, that is, inside

a facility’s fenceline.

The D.C. Circuit, however, concluded that Congress

put “no limits” on what “systems” EPA may use. The

court plucked select words from a definitional provision

and read them broadly, then refused to test its

construction against the statute’s operative provisions to

see if it held up in practice. This approach was wrong. A

plain reading of the statute does not give EPA power to

reorder entire economic sectors.

14

III. Lastly, the lower court construed Section 111 in

a way that raises grave doubts about its constitutionality.

If the D.C. Circuit majority is right, then Section 111 is an

enormous delegation of legislative power with only trifling

standards to guide EPA’s work. The Court should reject

that reading because the canons- and context-based

alternative avoids this serious non-delegation concern.

ARGUMENT

I.

Section 111 Does Not Vest EPA With IndustryTransforming, State-Displacing Power.

The lower court faulted EPA for not assuming a

broader mandate under Section 111(d). It urged EPA to

not just reorder the power sector, but also undertake

whatever other sweeping changes it decides will help

reduce carbon emissions. Yet neither Section 111 nor

anything else in the CAA provides a clear statement from

Congress that it intended EPA to take this power on.

Without a clear statement, two independent canons of

construction—the major-questions doctrine and the

federalism canon—confirm that the text does not grant

EPA these powers. Congress must delegate with

unmissable clarity if it intends to give an agency economytransforming abilities to decide major questions or alter

the power balance between the States and the federal

government. Here, it did no such thing.

A. Congress Did Not Clearly Delegate to EPA

Power to Tackle the Major Questions

Inherent in Restructuring Full Industries.

1. The “nature of the question” is critical when

answering whether Congress delegated powers to an

agency.

Brown & Williamson, 529 U.S. at 159.

Ambiguous statutory text may be enough to delegate

15

smaller efforts—the routine, interstitial work of the

administrative state. See Zuni Pub. Sch. Dist. No. 89 v.

Dep’t of Educ., 550 U.S. 81, 90 (2007). But the Court

“expect[s] Congress to speak clearly if it wishes to assign

to an agency decisions of vast economic and political

significance.” UARG, 573 U.S. at 324 (cleaned up).

The reason? Major questions are poor candidates for

agency decision-making. Top-level, political decisions

“should be made by the national legislature, the branch

best equipped by its structure and constituency” to

respond to competing interests and priorities. United

States v. District of Columbia, 669 F.2d 738, 744 (D.C. Cir.

1981).

Further, “[a]dministrative knowledge and

experience largely account for the presumption that

Congress delegates interpretive lawmaking power to [an]

agency.” Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019)

(cleaned up).

Major questions, however, implicate

crosscutting matters extending beyond one agency’s core

expertise.

The major-questions doctrine therefore responds to

“the danger posed by the growing power of the

administrative state.” City of Arlington v. FCC, 569 U.S.

290, 315 (2013) (Roberts, C.J., dissenting). It rests on “two

overlapping and reinforcing presumptions”—that

Congress “intends to make major policy decisions itself,”

and that Congress should make those choices under a

“separation of powers-based” default against delegating

“major lawmaking authority.” U.S. Telecom Ass’n v. FCC,

855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J.,

dissenting from denial of rehearing en banc). The doctrine

also acts “in service of the constitutional rule that

Congress may not divest itself of its legislative power.”

Gundy v. United States, 139 S. Ct. 2116, 2142 (2019)

(Gorsuch, J., dissenting); see also, e.g., William N.

16

Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional

Law: Clear Statement Rules As Constitutional

Lawmaking, 45 VAND. L. REV. 593, 631 (1992) (clearstatement canons “assure that the political branches make

the most important policy choices in democracy”).

With considerations like these in mind, the Court has

repeatedly called the major-questions doctrine into action.

Four decades ago, a plurality of the Court found it

“unreasonable to assume” Congress delegated

“unprecedented power over American industry” without

“a clear [textual] mandate.” Indus. Union Dept., AFLCIO v. Am. Petroleum Inst., 448 U.S. 607, 645-46 (1980)

(plurality op.). Last summer, the Court found it equally

unlikely that statutory ambiguity empowered the Centers

for Disease Control and Prevention to impose a

nationwide eviction moratorium. Ala. Ass’n of Realtors v.

Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2486

(2021). The same reasoning permeates decisions in the

decades between. See King v. Burwell, 576 U.S. 473, 486

(2015) (IRS lacked authority without an “express[]”

delegation to determine applicability of Affordable Care

Act tax credits that involved billions in spending and

affected millions of people); Gonzales v. Oregon, 546 U.S.

243, 267-68 (2006) (Attorney General lacked authority

from “oblique” statutory provision to criminalize assisted

suicide); Brown & Williamson, 529 U.S. at 160 (FDA

lacked authority to regulate cigarettes because delegation

on a matter of “such economic and political significance”

would not occur “in so cryptic a fashion”); MCI

Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231

(1994) (FCC lacked authority to excuse non-dominant

long-distance carriers from rate-filing requirements, as “a

subtle [statutory] device” did not establish that Congress

left “determination of whether an industry will be entirely,

17

or even substantially,

discretion”).

rate-regulated

to

agency

Major-questions review is no stranger to the CAA,

either—the Court has already deployed the doctrine to

hold that Congress did not give EPA certain powers it

claimed. UARG considered whether EPA could extend

permitting requirements to a vast category of greenhouse

gas-emitting sources. 573 U.S. at 315. It could not.

Otherwise, EPA would have worked “an enormous and

transformative expansion [of its] regulatory authority

without clear congressional authorization.” Id. at 324. If

EPA “lay[s] claim to extravagant statutory power over the

national economy,” then it must explain why the statute

“compel[s]” that interpretation. Id.; see also Whitman v.

Am. Trucking Assocs., 531 U.S. 457, 468 (2001) (holding

EPA could not consider implementation costs when

setting national ambient air quality standards without a

“clear” “textual commitment” on that score).

This case is cast from the same mold. The decision

below improperly reads Section 111 to extend EPA’s

regulatory powers to a major issue “without clear

congressional authorization.” UARG, 573 U.S. at 324.

2. Make no mistake: Congress never provided a clear

statement of authority that could permit the powers the

D.C. Circuit read into Section 111(d). No one below

offered a “serious and sustained argument that § 111

includes a clear statement.” JA.206. The majority instead

went hunting through “the statute and subject matter” for

something that might make a broad delegation to EPA

“implausible.” JA.135-36. Demanding a clear denial

rather than a clear grant of authority, however, gets the

analysis backward. Cf. Atl. City Elec. Co. v. FERC, 295

F.3d 1, 9 (D.C. Cir. 2002) (“Were courts to presume a

delegation of power absent an express withholding of such

18

power, agencies

hegemony.”).

would

enjoy

virtually

limitless

The majority also chased irrelevancies. It led with

skepticism of the whole major-questions enterprise.

JA.135 (referring to the “so-called” major-questions

doctrine with a lineage of “few” cases).

Then it

emphasized EPA’s charge to regulate power plants’

greenhouse gas emissions in some fashion. JA.147. Yet it

is one thing to say Congress spoke clearly to what and

whom EPA may regulate. JA.141; but see Massachusetts

v. EPA, 549 U.S. 497, 555-60 (2007) (Scalia, J., dissenting)

(disagreeing that the CAA includes greenhouse gas

emissions). It is quite another to find a clear statement for

how EPA may do so—particularly when the majority read

“how” to mean any method EPA deems necessary. See

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 427

(2011) (explaining that Section 111 does not give EPA a

“roving license”). Gonzales confirms this method-blind

approach cannot be right. Though the Attorney General

concededly has powers to fight drug diversion and certain

authority over physicians, the Court held he overstepped

in asserting a major new way of exercising anti-diversion

power over physicians without a clear textual statement

that he could. Gonzales, 546 U.S. at 259-68.

The sole potential candidate for a clear statement is the

phrase “best system of emission reduction,” a subset of

the “standard of performance” definition in Section

111(a)(1). But that provision, like the rest of Section 111,

“is a wafer-thin reed on which to rest such sweeping

power.” Ala. Ass’n, 141 S. Ct. at 2489. Even the majority

was only willing to call Section 111 “ambig[uous].” JA.214.

By definition, Congress does not speak clearly through

ambiguous text.

19

3. So the only issue remaining—and it is no close one,

really—is whether the broad powers EPA may now wield

under Section 111(d) implicate a major question. They do.

According to the majority, EPA may use Section 111(d)

to employ any “common plan,” JA.108, that applies to

whatever pollutant, source, or category EPA designates,

JA.112, so long as the plan “concern[s]” a regulated

source, JA.117. In doing so, EPA need only “tak[e] into

account” cost, nonair health and environmental

consequences, and energy needs. 42 U.S.C. § 7411(a)(1).

The statute says nothing about how the agency must

weigh these factors, and agency-deference principles

would set a high barrier for any challenge to their use.

The D.C. Circuit thus extended Section 111 beyond

even the CPP’s unprecedented scope. The breadth of this

new regulatory supremacy is hard to overstate. Outside

the electricity sector, any buildings that draw from or

produce

carbon-generating

power—manufacturing

plants, homes, hospitals, and otherwise—now fall under

EPA’s mandate. The rationale below instructs EPA to

consider demand-side (that is, consumer-focused)

measures as an option. JA.143 n.9. EPA could view fees—

de facto taxes—as a new incentive “system” to promote

using sources it prefers at the expense of others. Or EPA

could force financial divestment from carbon-producing

activities, or determine that the “best system” includes

banning import or export of carbon-intensive goods. And

nothing but administrative grace would prevent EPA

from issuing rules that require shutting down carbonemitting sources in any economic sector. So while EPA

must justify its choice by reference to the three statutory

factors, the decision below finds “no limits on the types of

measures that EPA may consider.” JA.118.

20

Given the CPP’s consequences, the dissent was right to

characterize the plan—a narrower one than those the

D.C. Circuit blessed—as “one of the most consequential

rules ever proposed.” JA.225. Every factor for deciding

whether a question is “major” says the same. See, e.g.,

U.S. Telecom Ass’n, 855 F.3d at 422-23 (Kavanaugh, J.,

dissenting from denial of rehearing en banc) (listing cost,

overall economic impact, number of affected persons, and

degree of public and political attention).

First, take the money involved. It is hard to reduce the

colossal scale of the EPA’s new mandate to dollars and

cents. Implementing even the CPP’s vision would have

cost hundreds of billions of dollars. See, e.g., NERA

ECONOMIC CONSULTING, POTENTIAL ENERGY IMPACTS

OF THE EPA PROPOSED CLEAN POWER PLAN 21 (Oct.

2014), https://perma.cc/HFU2-QZSA. Costs of wholesale

electricity were expected “to rise by $214 billion,” with

another $64 billion needed to replace the capacity the CPP

axed. JA.226. EPA itself acknowledged these costs—not

to mention spikes in consumer electricity rates and the

tens of thousands of energy-sector jobs projected to

disappear before 2025. See EPA, REGULATORY IMPACT

ANALYSIS FOR THE CLEAN POWER PLAN FINAL RULE 625 (Oct. 23, 2015), https://perma.cc/7FDZ-8M2C. These

numbers tower over even those for the major rules in

King, 576 U.S. at 486, and Alabama Ass’n, 141 S. Ct. at

2489; those cases involved “only” billions.

Second, economic costs fail to capture the broader

transformative effects of the majority’s view of EPA’s

power. Electricity is an “essential” and foundational

element of modern life. See Puerto Rico v. Franklin Cal.

Tax-Free Tr., 136 S. Ct. 1938, 1950 (2016). The electricpower industry is thus an even more “significant portion

of the American economy” than tobacco, and this Court

21

considered an attempted overhaul of the latter to be a

major question. Brown & Williamson, 529 U.S. at 159.

What EPA already tried under Section 111 is no less an

overhaul: EPA designed the CPP to be “groundbreaking”

and economy-changing. JA.225. Starting from the

premise that “lives are at stake,” it was intended to mark

“the moment when the rise of the oceans began to slow

and our planet began to heal.” JA.227, 229. EPA was

forthright about its goals, too: It wanted to boost “zeroemitting generation” and reduce significantly “CO2emitting generation.” JA.558-59, 572-73. Yet the D.C.

Circuit looked at all this and told EPA, “Do more.”

The court below dismissed the breadth and costs of the

CPP by linking them to the size of the “problem, not of the

best-system’s role in the solution.” JA.148. But a

regulation’s scope is most always tied to the scale of the

issue it aims to solve; an agency’s decision to “assert

jurisdiction” over vast questions like these is what

triggers the need for a clear statement. Brown &

Williamson, 529 U.S. at 159; see also MCI, 512 U.S. at 229

(agency action could “be justified only if it ma[de] less than

radical or fundamental change” to the regulatory scheme).

Similarly, the lower court was wrong to brush aside costs

by guessing that any “system of emission reduction”

might have a similar price tag. JA.148-49. No one

suggests source-specific measures would have imposed

extraordinary and system-wide expense. The ACE rule’s

projected costs, for instance, were orders of magnitude

lower than the CPP’s. See EPA, FACT SHEET: PROPOSED

AFFORDABLE CLEAN ENERGY RULE—OVERVIEW (Aug.

2018), https://perma.cc/U79K-ZYX9 (estimating $400

million in annual savings).

Third, the vast powers claimed in the CPP and

extended in the decision below are new. Just as

22

longstanding agency “practice may shed light on the

extent of power” Congress delegated, failure to assert

“power by those who presumably would be alert to

exercise it” is telling. FTC v. Bunte Bros., 312 U.S. 349,

352 (1941).

EPA’s first Section 111(d) regulations contemplated

on-site measures—“construction or installation of

emission control equipment or process change.” 40 C.F.R.

§ 60.21(h)(3). Consistent with that view, EPA did not use

Section 111(d) before the CPP to require measures other

than on-the-scene technologies. See, e.g., 61 Fed. Reg.

9,905, 9,914 (Mar. 12, 1996) (standards for landfill gas

emissions based on gas collection and control systems).

The only potential outliers allowed sources to use outsidethe-fenceline measures to comply with standards derived

from inside-the-fenceline “control technology available at

the time.” 70 Fed. Reg. at 28,616-17, rule vacated by New

Jersey, 517 F.3d 574; see also 60 Fed. Reg. at 65,402. In

other words, although EPA had at times given incentives

to use cost-effective trading options, it had not compelled

owners to shift capital to other sources in a gambit to

restructure the industry. Thus, the CPP used a “decadesold statute” to justify sweeping regulations of a new kind.

Ala. Ass’n, 141 S. Ct. at 2486. Courts are rightly

suspicious of claims to “discover in a long-extant statute

an unheralded power to regulate a significant portion of

the American economy.” UARG, 573 U.S. at 324 (cleaned

up).

The majority downplayed the CPP’s novelty by

pointing to prior EPA regulations that could have had

“some generation-shifting effect” because they affected

the “cost of doing business for particular plants.” JA.151.

That approach conflates a rule’s ripple effects with its

primary aim. Authority to take steps with “implications

23

for criminal enforcement,” after all, did not empower the

Attorney General to “declare[] certain conduct criminal”

in the first place. Gonzales, 546 U.S. at 262. Neither can

EPA dictate industry shakeups because some of its prior

rules had second-order consequences for electricity

generation.

Fourth, the lower court’s interpretation sanctions

regulatory authority over countless new entities. The

CPP asserted for the first time power to regulate source

“owners and operators” directly, rather than identifying

technology and setting standards for individual sources.

JA.543 (quoting 42 U.S.C. § 7411(d)(1)). Untying Section

111(d) from “the sources themselves” allowed EPA to

appoint itself regulator of the “complex machine” of “the

North American power system.” JA.543, 569. And though

the CPP focused on the energy sector, the same move in

the majority’s hands now allows EPA to regulate any

producer in any economic sector—or really any building

owner. Yet remember what UARG said: Imposing new

regulatory burdens on “the operation of millions[] of

sources nationwide falls comfortably within the class of

authorizations” the Court has been “reluctant to read into

ambiguous statutory text.” 573 U.S. at 324; see also, e.g.,

Brown & Williamson, 529 U.S. at 159-60 (rejecting

expanded agency jurisdiction over new “portion[s] of the

American economy”). The CPP’s reach alone thus more

than suggests a major question; the D.C. Circuit’s reading

confirms it.

The majority again moved too quickly past this factor.

Yes, Section 111(d) has covered existing power plants

before. JA.136, 140-41, 147. But nothing before the CPP

suggested that their owners, or power grids as singular

units, were subject to standards of performance, too. To

view this shift as within “the heart of the EPA’s mandate,”

24

JA.150, confuses the CAA’s purposes with its textual

reach. See Mexichem Fluor, Inc. v. EPA, 866 F.3d 451,

460-61 (D.C. Cir. 2017) (“[W]ell-intentioned policy

objectives with respect to climate change do not on their

own authorize [EPA] to regulate.”). And the D.C. Circuit

ignored the myriad other people and entities swept within

Section 111’s expanded scope—homeowners, for instance,

are a potential regulated class tens of millions strong.

Fifth, it would be especially wrong to assume Congress

charged EPA with taking on these new issues and parties

when the questions at stake span multiple sectors—

including many well outside EPA’s lane. In the CPP, EPA

assumed authority to direct investment decisions, assess

consumer energy use, resolve questions of energy

reliability and need, manipulate energy prices, drive

employment markets, and more. Of course, the federal

government already has an energy regulator for some of

these concerns: FERC. And the Court has had no

patience for similarly unauthorized, multi-jurisdictional

rulemakings. Gonzales is again a good example. There,

forbidding doctors from prescribing regulated drugs for

physician-assisted suicide fell outside the Attorney

General’s authority in part because the issue involved

“quintessentially medical judgments” beyond his

“expertise.” 546 U.S. at 248, 267. Gonzales was no fluke,

either. The Court was also concerned when the IRS

asserted power over insurance markets in King, 576 U.S.

at 486, and when the CDC regulated housing markets in

Alabama Ass’n, 141 S. Ct. at 2488.

Sixth and finally, these issues are at the center of

substantial political and public attention. On the political

side, Congress has remained heavily engaged in climatechange-related issues.

Before the CPP, Congress

considered a carbon tax, S. Con. Res. 8, S. Amdt. 646,

25

113th Cong. (2013); fees on greenhouse gas emissions,

Climate Prot. Act of 2013, S. 332, 113th Cong. (2013); and

a greenhouse gas cap-and-trade program, Clean Energy

Jobs & Am. Power Act, S. 1733, 111th Cong. (2009); Am.

Clean Energy & Security Act, H.R. 2454, 111th Cong.

(2009). It has continued debating approaches to emission

regulation in the years since. See, e.g., Am. Energy

Innovation Act of 2020, S. 2657, 116th Cong. (2020);

Massachusetts, 549 U.S. at 506-09 (describing

congressional efforts to address climate change). And it

has created programs encouraging investment in natural

gas and renewables in the meantime. See, e.g., Further

Consolidated Appropriations Act of 2020, Pub. L. No. 11694 (extending Renewable Energy Production Tax Credit

through 2020); EIA, DIRECT FEDERAL FINANCIAL

INTERVENTIONS AND SUBSIDIES IN ENERGY IN FISCAL

YEAR 2016, at 3, 16 (Apr. 24, 2018), https://perma.cc/YPY8

-F4B6 (identifying billions in subsidies to the renewableenergy industry). The Court should not permit EPA to

short-circuit this ongoing legislative process.

For that matter, when EPA did try to assume control

of these major issues, Congress condemned the attempt

by passing a joint resolution under the Congressional

Review Act to overturn the CPP. S.J. Res. 24, 114th Cong.

(2015) (later vetoed). This “unique political history” is yet

another reason to think Congress did not silently shunt

the task of reordering the energy system to EPA. Brown

& Williamson, 529 U.S. at 159.

As for public attention, EPA received over 4.3 million

comments when it proposed the CPP—the most the

agency had ever received. JA.284. The rule spurred

litigation before EPA even finalized it. See generally In

re Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015).

More generally, everyone agrees “[c]limate change has

26

staked a place at the very center of this Nation’s public

discourse.” Nat’l Rev., Inc. v. Mann, 140 S. Ct. 344, 348

(2019) (Alito, J., dissenting from denial of certiorari); see

also, e.g., Janus v. Am. Fed’n of State, Cnty. & Mun.

Emps., Council 31, 138 S. Ct. 2448, 2476 (2018) (referring

to the “controversial subject[]” of “climate change”).

“[E]arnest and profound debate” like this provides one

last signal that the question EPA seized is major.

Gonzales, 546 U.S. at 249.

All told, if the decision below does not involve a major

question, it is hard to imagine what would. An unbridled

reinterpretation of Section 111 allows an agency without

political accountability to impose measures that affect

millions of Americans and impose hundreds of billions in

costs. Worse still, EPA can only address environmental

matters. While this mission is vital, it renders EPA’s

regulatory solutions necessarily incomplete—EPA

cannot, for instance, help States dull the economic pain its

rules exact. Without clear evidence that Congress

intended these results, the Court should not construe

Section 111 to permit them implicitly.

B. Congress Did Not Clearly Delegate to EPA

Power to Upend Traditional State and

Federal Roles.

Enlarging Section 111’s reach violates a second “wellestablished principle” of statutory construction—that

Congress must provide a “clear statement” if it wants to

alter the “usual constitutional balance of federal and state

powers.” Bond v. United States, 572 U.S. 844, 858 (2014)

(citations omitted). This choice requires “exceedingly

clear language,” U.S. Forest Serv. v. Cowpasture River

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

must make its intent “unmistakably clear in the language

27

of the statute,” Will v. Mich. Dep’t of State Police, 491 U.S.

58, 65 (1989). The Court thus demands even plainer terms

when a statute implicates federalism concerns than when

Congress delegates major questions.

1. Regulating utilities, including electricity generation,

is “one of 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). States

have “traditional authority over the need for additional

generating capacity, the type of generating facilities to be

licensed, land use, ratemaking, and the like.” Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 212 (1983). They also have wide

discretion when modifying existing energy systems or

exploring new ones. See Hughes v. Talen Energy Mktg.,

LLC, 136 S. Ct. 1288, 1299 (2016).

The federal government can play a role in this space—

within limits. In statutes focused on power and energy

needs, for instance, Congress assigned only certain

regulatory duties to federal agencies and maintained

States’ existing authority over many others. FERC v.

Elec. Power Supply Ass’n, 577 U.S. 260, 266-73 (2016)

(“EPSA”). Regulations under these statutes “would

exceed [the agencies’] authority” if they intrude on “a job

for the States alone.” Id. at 280. Respect for the

traditional assignment of power is even more important

here. State regulators have “the greatest knowledge

regarding questions of grid reliability” in their States,

while power-grid-related issues lie outside EPA’s

expertise. Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016).

2. Nothing in the CAA suggests Congress crossed this

time-honored, state-federal line. Quite the opposite. The

28

Act reflects a calibrated mix of federal and state roles,

with an emphasis on the States. Congress found that

preventing and controlling air pollution—the statute’s

overarching goal—“is the primary responsibility of

States and local governments.” 42 U.S.C. § 7401(a)(3)

(emphasis added). This federalism-advancing policy is on

full display in Section 111(d): Congress established a

structure that, as in other cooperative-federalism

statutes, “allows the States, within limits established by

federal minimum standards, to enact and administer their

own regulatory programs, structured to meet their own

particular needs.” Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 288-89 & n.30

(1981). States, not EPA, set the performance standards

that bind each existing source. Only if States fail to submit

“satisfactory” plans may EPA step in, and then only with

certain procedural safeguards. 42 U.S.C. § 7411(d)(2)(A);

see also Train, 421 U.S. at 79 (explaining that Section

111(d) “relegate[s]” EPA “to a secondary role”).

The D.C. Circuit reasoned that Section 111 might

implicitly reorder federal and State roles precisely

because the CAA embraces cooperative federalism.

JA.156-58. But it is hard to square Congress’ statutory

choices to preserve States’ authority with a construction

that allows EPA to trample those same prerogatives. The

lower court, at least, could not convincingly do it. In the

first case it marshaled Congress had “unquestionably”

taken “regulation of [certain] local telecommunications

competition away from the States,” AT&T Corp. v. Iowa

Util. Bd., 525 U.S. 366, 378 n.6 (1999); in the second, the

Court did not address the federalism canon, see Alaska

Dep’t of Env’t Conservation v. EPA, 540 U.S. 461 (2004).

Nor does federalism fall aside—and with it the

unmistakably clear statement requirement—because

29

“interstate air pollution is not an area of traditional state

regulation.” JA.156. That broad-brush notion suggests

that an agency need only invoke a traditional federal

interest to erase a traditional state interest. But Congress

always has some federal interest in mind when it delegates

to an agency. Particularly when Congress went out of its

way to reinforce the States’ roles in the CAA, there is

vanishingly little basis to assume it authorized this agency

mission creep.

3. With no clear statement in sight, the CPP and the

decision below significantly upend the federal-state

balance of power.

The CPP handicapped States by taking away even

Section 111’s express avenues for tailoring. First, it

required stringent, region-wide emission reductions that

state plans could meet only by restructuring. See JA.57879, 705. Second, despite Section 111(d)’s guarantee that

EPA “shall permit” States to consider “remaining useful

life” and similar factors, EPA decreed that “consideration

of facility-specific factors” would not have justified

“further adjustments to [sources’] performance rates.”

JA.1237. Both elements are far from FERC’s “notable

solicitude toward the States” in the form of “veto power”

over issues States worried skirted too close to their core

powers. EPSA, 577 U.S. at 287.

The CPP’s follow-on consequences would have been

worse. States would have had to account for EPA’s

judgments touching on electricity reliability. They would

have needed to reorder their regulatory regimes to allow

new ways to dispatch electricity—moving fossil-fuel-fired

sources from the front of the pack to the back. The agency

also knew the CPP would create generation gaps, and it

expected state regulators to make non-fossil-fuel

generators “responsible for compliance and liable for

30

violations” if they failed to fill them in. JA.1148; 40 C.F.R.

§§ 60.5745(a)(7), 60.5780(a)(5)(iii) (2015). And, of course,

the concrete task of building up EPA’s preferred

generation sources would have required immense state

investment. Consequences like these are a significant

affront to state sovereignty—if not outright

commandeering. See, e.g., Nat’l Fed. of Indep. Business

v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (“forc[ing] the

States to implement a federal program” threatens vital

“political accountability”).

The lower court dismissed these impositions by

suggesting that the CPP “merely … alter[ed] consumers’

incentives.” EPSA, 577 U.S. at 284 (cited at JA.156). Yet

the CPP’s entire purpose was to force grid-wide changes

through standards custom-made for that goal—

generation shifting was not an incidental effect of the

CPP, but the key variable in its “adjusted CO2 emission

rate.” JA.1605.

The lower court also supposed that the CPP gave

States flexibility in how to hit the CPP’s targets. JA.15960. This response forgets, though, that the targets were

reverse-engineered to be “unachievable or too costly to

meet” without shifting generation. JA.223; see also

JA.890, 928-29, 966-67. EPA calculated how much change

it thought the grids could tolerate without collapsing and

set standards accordingly. JA.993-1008. Because of that

uncompromising approach, EPA admitted that every

purported “choice” led back to implementing the CPP’s

mandate. JA.579-80 (recognizing that States would “need

to” replace some forms of generation with others). States

would have had to “ensure” that any alternate program

incorporated the CPP’s “relative incentives,” which

advanced EPA’s goals of shuttering fossil-fuel-fired plants

and promoting other generators. JA.1008-14. Those

31

States unlucky enough to lack the wind, solar, or other

power generators that EPA preferred would have also

become necessarily reliant on resources or emission

credits from their more fortunate neighbors. With many

losers in this scenario already among our nation’s most

economically disadvantaged States, these federalism

intrusions deserve more than the majority’s passing

glance.

In the end, Congress must decide whether and how to

assign federal pieces of a problem to a federal agency.

When that choice comes at the expense of traditional state

power, Congress must state it with “exceeding[]” clarity.

Cowpasture, 140 S. Ct. at 1849-50. Lack of that clear

statement—what Congress did not say in the text—is

reason enough to reverse.

II.

Section 111’s Text and Context Require SourceSpecific Regulation.

No fair construction of what Congress did say in

Section 111 supports the majority’s near-boundless view,

either. As EPA correctly explained when repealing the

CPP, Section 111 operates “inside the fenceline.”

JA.1760-69.

Again, although EPA sets standards for new sources

directly, 42 U.S.C. § 7411(b), EPA creates a process for

States to set “standards of performance for any [covered]

existing source,” id. § 7411(d)(1). An “existing source” is

any “stationary source” other than a new one, and a

“stationary source” means “any building, structure,

facility, or installation which emits or may emit any air

pollutant.”

Id. § 7411(a)(3), (6).

A “standard of

performance,” in turn, is:

32

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).

Sections 111(a)(1), (b), and (d) operate as a funnel that

narrows from EPA’s system-identifying role to the

specific standard for a particular stationary source. EPA

identifies a best system that is adequately demonstrated

and accounts for the three enumerated factors. That

system is used to determine an achievable degree of

emission limitation. The States or EPA then set

standards of performance reflecting that limitation for

individual sources to meet.

The D.C. Circuit went off course treating these

interlocking provisions as discrete objects. It focused on

select, isolated terms (“system” and “for”) and used

dictionaries that supported their most expansive

meanings. It broadened its interpretation further by

emphasizing the statute’s use of a nominalization instead

of a verb (“application” versus “apply”) and lack of an

express indirect object. Then it refused to test whether

its capacious construction made sense by reading the

“standard of performance” definition within the

provisions where it is used. The result lets EPA pick

effectively anything as a “system,” then dictate rules

through “application” of that system to anything else.

JA.106-20.

33

That’s not how statutory interpretation works. Courts

“construe statutes, not isolated provisions.” Graham

Cnty. Soil & Water Cons. Dist. v. U.S. ex rel. Wilson, 559

U.S. 280, 290 (2010). Statutory construction “is a holistic

endeavor,” and only context shows whether a term “may

or may not extend to the outer limits of its definitional

possibilities.” Koons Buick Pontiac GMC, Inc. v. Nigh,

543 U.S. 50, 60 (2004); Abuelhawa v. United States, 556

U.S. 816, 819-20 (2009). Courts accordingly do not divorce

definitions from the provisions where they operate. Cyan,

Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061,

1071 (2018). Indeed, as the Court noted for another

environmental law, the importance of reading together

“interlocking language and structure of the relevant text”

increases with a statute’s complexity. Territory of Guam

v. United States, 141 S. Ct. 1608, 1613 (2021) (CERCLA).

The alternative—“[s]licing a statute into phrases while

ignoring their contexts”—“is a formula for disaster.”

Herrmann v. Cencom Cable Assocs., Inc., 978 F.2d 978,

982 (7th Cir. 1992) (Easterbrook, J.).

The Court should thus give fidelity to all the words

Congress chose and the context where it used them—both

immediate and “the broader context of the statute as a

whole.” UARG, 573 U.S. at 321. When properly read this

way, Section 111 gives the lie to “no limits.” It describes a

process steeped in technological realities and focused on

individual, achievable performance metrics. It does not

empower EPA to regulate across industries, force

shutdowns, or manage the nation’s electricity supply.

A. Section 111(a)(1) Reveals A Source-Specific

Focus.

Although the lower court was wrong to end with the

definition of “standard of performance,” that definition is

34

the right place to start. 42 U.S.C. § 7411(a)(1). The Court

should read each of its pieces together to glean “more

precise content” from “the neighboring words with which

[they are] associated.” Life Techs. Corp. v. Promega

Corp., 137 S. Ct. 734, 740 (2017). So construed, “standards

of performance” refer to measures that particular, stilloperating sources can adopt to reduce their own

emissions.

1. To begin, Section 111(a)(1) defines a standard of

“performance.” “Performance” implies action, what a

stationary source does. Although the majority overlooked

this term, even its chosen dictionary agrees that

“perform” denotes doing. WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1678 (1968) (“act or process

of carrying out something”; “execution of an action”)

(dictionary cited at JA.108-09). Focusing on action also

makes sense of Section 111’s “prohibited act[]”—

“operat[ing]” a source contrary to a performance

standard. 42 U.S.C. § 7411(e) (emphasis added). The

CAA’s general definitions agree, too. Id. § 7602(l)

(defining “standard of performance” to include “any

requirement relating to the operation or maintenance of

a source to assure continuous emission reduction”

(emphases added)), (k) (similar for “emission limitation”).

In contrast, the CPP’s and majority’s views are

indifferent to performance—a particular source can

perform worse yet fully comply with a cap-and-trade or

generation-shifting “system.” And if that system is

stringent enough to put disfavored sources out of

business, then EPA has effectively mandated inaction,

which is no “performance” standard at all. Athletes, after

all, do not perform better by retiring.

Standards of performance must also reflect

“achievable” degrees of emission reduction through an

35

“adequately demonstrated” system. These terms carry a

dose of empiricism. EPA must employ real-world

solutions; “experimental” or “theoretical” will not do.

Nat’l Asphalt Pavement Ass’n v. Train, 539 F.2d 775, 786

(D.C. Cir. 1976). Both terms align with source-specific

technologies or processes—those in early research-anddevelopment phases are not yet “adequately

demonstrated,” nor have they established what they

might “achiev[e].” But the terms are a bad fit for many

measures EPA could adopt under the majority’s reading.

Telling an operator to shift generation to hit an EPAdictated target reflects a policy choice about emission

outcomes and preferred sources; it does not assess

evidence-based techniques. What would it mean for a

system to be “adequately demonstrated” if EPA can pick

any target it wants and instruct regulated parties to

reduce or shift output until they meet it? And if EPA can

average emissions across multiple categories of sources,

zooming out far enough makes any “system” “achievable.”

Section 111(a)(1) speaks to emission “limitation” and

“reduction,” as well. The D.C. Circuit (again) never

defined these terms, but both imply lower emission levels,

not elimination. See, e.g., OXFORD ENGLISH DICTIONARY

436 (2d ed. 1989) (defining “reduction” as “diminution,

lessening, cutting down”).

Yet generation shifting

involves a de facto bar on certain sources’ emissions,

potentially a complete one. The CAA refers to “reduction”

and “elimination” separately, see 42 U.S.C. § 7401(a)(3), so

treating the terms interchangeably would render one

superfluous. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617, 632 (2018) (courts “give effect, if possible, to

every word Congress used” (cleaned up)). Congress also

knows how to write statutes that stop sources from

performing rather than pushing them to perform more

efficiently. E.g., 15 U.S.C. § 792(a)(1) (empowering

36

Federal Energy Administrator to prohibit “any

powerplant” “from burning natural gas or petroleum

products as its primary energy source”). Because

Congress did not write Section 111 that way, “system of

emission reduction” is different from “system of emission

elimination.”

2. Though the majority faulted the CPP repeal for

purportedly adding words to Section 111(a)(1), JA.118, its

own reasoning depends on subtraction. The court latched

onto the terms “system” and “application” and gave them

decisive weight—at the expense of the five other key

words in the definition (just discussed) pointing another

way. Even so, the majority’s select words do not decide

this case.

Take first its view of “system.” The majority relied on

a definition from a “widely criticized” dictionary, see MCI,

512 U.S. at 228 n.3 (discussing WEBSTER’S THIRD), to

conclude that EPA could impose any “complex unity …

subject to a common plan or serving a common purpose,”

so long as it “place[d] a high priority on efficiently and

effectively reducing emissions.” JA.118-19. The court

thought this broad term gave EPA maximum

“flexibility”—the genesis of its “no limits” holding.

JA.118.

Yet “words that have one meaning in a particular

context frequently have a different significance in

another.” United States v. Raynor, 302 U.S. 540, 547-48

(1938). All the more for a general term like “system”: In

one statute it refers to a device for making phone calls,

Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021)

(“automatic telephone dialing system”), in another it

describes a series of related waters, United States v. Dist.

Ct. In & For Eagle Cnty., 401 U.S. 520, 523 (1971) (“river

system”). Particularly for a term like this, “construing

37

statutory language is not merely an exercise in

ascertaining” its most expansive meaning, FCC v. AT&T,

562 U.S. 397, 407 (2011), as courts should not “indulge

efforts to endow the Executive Branch with maximum

bureaucratic flexibility,” Niz-Chavez v. Garland, 141 S.

Ct. 1474, 1484 (2021). The lower court erred in stopping

with “system’s” broadest meaning without asking whether

context called for a more tempered read. At the least,

“system’s” context demands only “complex unities” that

individual sources can perform.

The majority was also wrong to interpret “application”

in an unbounded, context-free way.

Standards of

performance “reflect” the degree of limitation possible

“through the application” of the best system of emission

reduction. 42 U.S.C. § 7411(a)(1). As the noun form of the

verb “apply,” “application” means “to put to use with a

particular subject matter.” Application, BLACK’S LAW

DICTIONARY (11th ed. 2019). Putting a system of emission

reduction “to use” means using it for something. The

obvious “something” here is the facility that emits—in

Sections 111(b) and (d) terms, a new or existing stationary

source. Thus, the “best system” “appl[ies]” to a stationary

source—that is, a “building, structure, facility, or

installation.” 42 U.S.C. § 7411(a)(3).

The lower court resisted this conclusion by observing

that a sentence can be grammatically correct with no

express indirect object, particularly when it employs a

nominalized verb like “application.” JA.111-13. In its

view, then, “best system” need not apply to any specific

entity. JA.112-13. But the insight that a sentence without

an indirect object may not break the rules of grammar

does not change the reality that “apply” (no matter its

form) must be directed to something (express or not).

Plenty of words work this way. “They told the story” is a

38

grammatically correct sentence conveying that they told

the story to someone.

Though the D.C. Circuit imagined other potential

indirect objects—such as “the air pollutant to be

limited”—it explained neither the textual basis for those

alternatives nor how they would work in practice. JA.113.

This leap-before-you-look approach leaves States and

regulated entities with empty assurance that the agency

will figure it out later. Still, it is hard to fathom how

“appl[ying]” a “system” to carbon dioxide in the abstract

results in a standard of performance for an individual

stationary source. Even EPA has not stretched so far. To

offset the CPP’s “very broad” view of “system,” EPA

understood “application” to mean “measures that can be

implemented—applied—by the sources themselves.”

JA.543. The CPP tried to get around this concededly

“important [textual] limitation” by improperly redefining

“source” to include “owners and operators.” But unlike

the D.C. Circuit, it never snatched “application” from its

context. Neither should the Court.

B. Other Parts Of Section 111 Confirm EPA’s

“Inside-the-Fenceline” Power.

Determining whether Section 111 is “plain” requires

reading its “words in their context and with a view to their

place in the overall statutory scheme.” King, 576 U.S. at

486 (cleaned up). As the CPP repeal correctly concluded,

Section 111’s operative provisions also show that “best

system” is narrower than the majority thought.

Section 111(a)(1)’s “standard of performance”

definition applies to Sections 111(b) and (d) alike, so its

construction must make sense of both provisions. The

majority found “no basis” to read “the source-specific

language of subsection (d)(1) … upstream into subsection

39

(a)(1),” asserting that these provisions describe “distinct

steps” with different actors. JA.106. But while only EPA

identifies a “best system,” Section 111(a)(1) defines

“standards of performance”—and under Sections 111(b)

and (d), EPA and the States set those. This interplay

makes Sections 111(a)(1), (b), and (d) quintessential

examples of “interlocking language and structure.”

Guam, 141 S. Ct. at 1613.

More generally, courts routinely interpret definitions

along with their statute’s operative provisions, see Cyan,

138 S. Ct. at 1071, especially when “mechanical”

constructions of a definition would create “incongruities”

in how the statute operates, Lawson v. Suwannee Fruit &

S.S. Co., 336 U.S. 198, 200-01 (1949). UARG rejected an

earlier attempt to expand EPA’s powers through a CAA

definitional provision based on how the definition operates

in practice. See 573 U.S. at 316. The same principle

counsels the same result here.

Starting with “source,” Section 111 makes plain that

standards of performance are individual targets, which in

turn makes it hard to interpret “best system” (an essential

input to those standards) apart from anything a particular

source could achieve. Consistent with EPA’s national

mandate, Section 111(b) directs the agency to list

categories of “sources” and issue performance standards

for the “new sources” within each category. 42 U.S.C.

§ 7411(b)(1). In contrast, Section 111(d) starts and ends

with “source” in the singular: States establish standards

“for any existing source,” and may consider factors

specific to “the existing source” when applying them. Id.

§ 7411(d)(1). If the majority is right, though, then Section

111(d) becomes just another way to regulate groups or

categories of sources. Congress’ choice of singular and

plural carries weight. Niz-Chavez, 141 S. Ct. at 1482. The

40

Court should construe “standard of performance” in a way

that works with both.

Unlike their deliberate use of source and sources,

neither Section 111(b) nor (d) refers to a source “owner or

operator”—another defined term. 42 U.S.C. § 7411(a)(5).

Section 111 regulates the “source,” id. § 7411(b), (d)(1),

and an owner violates the statute by operating “such

source in violation of any standard of performance

applicable to such source,” id. § 7411(e) (emphases added).

These textually required limits drove EPA to redefine

“source” in the CPP to encompass owners and

operators—the agency could order them to take economic

actions outside their facilities in service of remaking the

nation’s power grids. JA.543. Yet courts have not

sanctioned EPA’s prior attempts to “change the basic

unit” to which CAA obligations apply, ASARCO Inc. v.

EPA, 578 F.2d 319, 327 (D.C. Cir. 1978), and the statute

does not permit that sleight of hand here, either.

Congress used “different terms to describe different

categories of people or things.” Mohamad v. Palestinian

Auth., 566 U.S. 449, 456 (2012). That choice matters.

Section 111 also describes standards “for” an existing

source. 42 U.S.C. § 7411(b)(1)(B), (d)(1). The D.C. Circuit

thought this preposition unleashed EPA, allowing any

standards that “concern” a source. JA.117 (citing OXFORD

ENGLISH DICTIONARY (2d ed. 1989)). But as with

“system,” finding a definition “broad enough to

encompass one sense of a word” does not mean “the word

is ordinarily understood in that sense.” Taniguchi v. Kan

Pac. Saipan, Ltd., 566 U.S. 560, 568 (2012).

“Concern” is too broad a definition of “for,” in general

and in this context. “For” is “a function word to indicate

the object or recipient of a perception, desire or activity.”

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 454

41

(10th ed. 1995). It is therefore narrower than terms akin

to “concern,” like “relating to.” United Rentals Nw., Inc.

v. Yearout Mech., Inc., 237 P.3d 728, 732 (N.M. 2010)

(explaining that “contracts for construction” describes a

narrower category than “contracts relating to

construction”); see also, e.g., United States v. Pinson, 331

F.2d 759, 760 (5th Cir. 1964) (“easements for public

utilities” meant easements for facility construction and

maintenance, not all easements “belonging to public utility

companies”). Even when a statute does use broader terms

“like ‘relating to’ or ‘in connection with,’” courts reject

“hyperliteral meaning[s]” that risk allowing a statute to

“assum[e] near infinite breadth.” EPSA, 577 U.S. at 278.

Here, if standards of performance need only “concern” an

existing source, then EPA could use Section 111(d) to set

standards for anything directly or indirectly connected to

the source. Context joins with text to refute a construction

of “for” this far afield, as performance standards are not

only “for” any existing source, but also “apply[]” and are

“applicable to” the source. 42 U.S.C. § 7411(d)(1), (e).

Finally, Section 111(d) requires EPA to preserve

States’ authority to “take into consideration” sourcespecific factors like an existing facility’s “remaining useful

life.” 42 U.S.C. § 7411(d)(1). As retrofits can be pricier

and harder to justify than incorporating measures into a

new build, this Section 111(d) safeguard allows flexibility

that Congress did not write into Section 111(b). If,

however, best systems can apply across a source category,

market, or pollutant, States would have little room to

consider something as granular as “useful life.” The CPP

showed what that approach does to source-specific

tailoring—when EPA both sets standards and effectively

dictates how they apply, state “discretion” becomes an

illusion. JA.537.

42

C. The CAA As A Whole Confirms Section

111(d)’s Limited Scope.

Going broadest still, the rest of the CAA confirms that

best systems of emission reduction apply at the source.

See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008)

(whenever possible, courts construe statutes to make “the

statutory scheme … coherent and consistent”).

When Congress wants an industry or source to hit an

emission target by any means—including outside-thefenceline measures—it says so directly. The CAA has

express cap-and-trade programs, after all. Title IV’s Acid

Deposition Control program includes a trading system

pegged to specific tonnage-based emission levels. 42

U.S.C. § 7651(b). Congress added that program in 1990—

the same time it amended Section 111(d) and did not

revise it to include cap-and-trade or other nonperformance-based measures. The Stratospheric Ozone

Protection Program uses a similar trading approach, id.

§ 7671d, and Congress approved market-based trading

options under the national ambient air quality program, as

well, id. § 7410(a)(2)(A).

Section 111 is not like these target-driven programs.

Contrary to the majority’s view that Congress’ express

discussion of cap-and-trade in the acid-rain program is

evidence it silently authorized a similar program here,

JA.151, Section 111 does not mention cap-and-trade or

credits. So while the text creating those programs started

elephant-sized, Section 111’s requires the lower court’s

convoluted approach to get there. This Court should

“presume[]” Congress acted deliberately when it

“include[d] particular language in one section of [the CAA]

but omit[ted] it in another.” INS v. Cardoza-Fonseca, 480

U.S. 421, 432 (1987).

43

Section 111 thus differs from parts of the CAA less

concerned with source-specific operations. The majority

stressed that Section 111(a)(1) does not read like other

parts of the CAA that discuss “retrofit application[s]” or

“retrofit technology.”

JA.120 (quoting 42 U.S.C.

§§ 7651f(b)(2), 7491(b)(2)(A), (g)(2)). But retrofits are for

existing buildings. It would be odd to see similar language

in a definition that applies when regulating new

construction, too. In reality, Congress designed Section

111 “exactly like other performance-based limits found

throughout the environmental laws,” as it “clearly

contemplates

individualized,

performance-based

standards.” Lisa Heinzerling & Rena I. Steinzor, A

Perfect Storm: Mercury and the Bush Administration, 34

ENV’TL L. REP. 10,297, 10,309 (2004). Its standards of

performance focus on “pollution control devices.” Union

Elec. Co. v. EPA, 427 U.S. 246, 257 (1976). Lagging

facilities must “install new control equipment.” Nat’lSouthwire Aluminum Co. v. EPA, 838 F.2d 835, 841 (6th

Cir. 1988). And emission limits must be “to the fullest

extent compatible with the available technology and

economic feasibility.” H.R. REP. NO. 1146, 91st Cong., 2d

Sess., at 10, reprinted in 1970 U.S. CODE CONG. & ADMIN.

NEWS 5356, 5365 (emphasis added).

The lower court’s contrary construction flowed from an

unduly expansive view of the CAA’s purposes. Though the

Act advances the important goal of improving air quality,

JA.129-30, that purpose is nuanced. The lower court

elided, for instance, Congress’ statutory finding that

States and localities bear “primary responsibility” for

preventing and controlling air pollution. 42 U.S.C.

§ 7401(a)(3). It also minimized the many ways the CAA

balances environmental remediation with “the allowance

of reasonable economic growth.” Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984).

44

Because Congress designed different parts of the statute

to operate differently, a broad view of one of its purposes

cannot drive the interpretive cart.

And if Section 111’s proper construction leaves EPA

with too little power to respond to the serious issues

surrounding climate change, the solution is not

reinterpreting it with a purposivist bent. The answer is

the same as when Congress confronted the problem of

acid rain: When “policy considerations suggest that the

current scheme should be altered, Congress must be the

one to do it.” Intel Corp. Inv. Pol’y Comm. v. Sulyma, 140

S. Ct. 768, 778 (2020); see also Fed. Power Comm’n v. La.

Power & Light Co., 406 U.S. 621, 635-36 (1972) (“[The]

need for federal regulation does not establish [agency]

jurisdiction that Congress has not granted.”). For better

or worse, Congress designed Section 111 as a tool to

improve the performance of individual stationary sources,

not a springboard for market transformation.

III.

The Court Should Construe Section 111 To

Avoid Substantial Non-Delegation Questions.

Finally, while clear-statement canons and plain-text

constructions ask whether Congress delegated power in

the first place, the non-delegation doctrine demands that

Congress provide sufficient guidance for how agencies

should exercise it. Congress must make “fundamental

policy decisions” itself—“the hard choices.”

Am.

Petroleum Inst., 448 U.S. at 687 (Rehnquist, J.,

concurring in the judgment). So though agencies are a

reality of modern life, holding delegation within proper

bounds remains “vital to the integrity and maintenance”

of our constitutional order. Marshall Field & Co. v. Clark,

143 U.S. 649, 692 (1982); see also Gundy, 139 S. Ct. at 2133

(Gorsuch, J., dissenting).

45

Yet courts do not jump to invalidate statutes on

constitutional grounds. If “fairly possible,” they will

construe a statute “to avoid not only the conclusion that it

is unconstitutional but also grave doubts upon that score.”

Almendarez-Torres v. United States, 523 U.S. 224, 237-38

(1998). Thus, unless “plainly contrary to the intent of

Congress,” courts reject constructions that “would raise

serious constitutional problems” even if they are

“otherwise acceptable.” Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 173,

(2001). Even if the lower court’s interpretation were

acceptable, it would raise grave doubts about Section 111’s

constitutionality because it endorses an improper

delegation of legislative power. The Court should reject it

on this basis, too.

First, the standard. Delegation is constitutional only

through statutes with “specific restrictions” that

“meaningfully constrain[]” agency discretion. Touby v.

United States, 500 U.S. 160, 166-67 (1991).

The

Constitution bars Congress from giving “literally no

guidance” or overly vague standards when conferring

agency power. Whitman, 531 U.S. at 474. At a minimum,

Congress must provide “an intelligible principle to which

[the agency] is directed to conform.” Gundy, 139 S. Ct. at

2123 (cleaned up); see also id. at 2139-40 (Gorsuch, J.,

dissenting) (questioning whether even a few “intelligible

principles” are enough to save an overbroad delegation of

legislative power). Agencies may fill in statutory gaps

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

(cleaned up), but Congress cannot ask them to set “the

criteria against which to measure” their own decisions,

Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting).

Policymaking directives must instead be “sufficiently

definite and precise” to know whether the agency stays

46

within its lane—or not. Yakus v. United States, 321 U.S.

414, 426 (1944).

How much discretion the Constitution tolerates also

“varies according to the scope of the power” at stake.

Whitman, 531 U.S. at 475. When delegation swells “to

immense proportions,” Congress’ standards “must be

correspondingly more precise.” Synar v. United States,

626 F. Supp. 1374, 1386 (D.D.C. 1986) (three-judge panel).

Delegations that “encompass[] all American enterprise,”

for example, require more rigorous standards than those

limited to “a single industry.” Int’l Union, United Auto.,

Aerospace & Agr. Implement Workers of Am., UAW v.

OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991). The

Constitution therefore demands “substantial” guidance

for air standards that, as here, “affect the entire national

economy.” Whitman, 531 U.S. at 475; see also Michigan

v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring)

(noting “potentially unconstitutional delegation[]” if EPA

had unfettered discretion over “which policy goals” it

pursued). CAA Section 109 satisfied this standard

because Congress limited EPA’s authority to a “discrete

set of pollutants” and tied its discretion to specific healthand-safety metrics and “air quality criteria that reflect the

latest scientific knowledge.” Whitman, 531 U.S. at 473

(analyzing 42 U.S.C. § 7409(b)(1)-(2)).

Properly understood, Section 111 satisfies the nondelegation doctrine, too. Cabining the statute to sourcelevel “systems” leverages EPA’s scientific and

engineering expertise about techniques for optimizing a

source’s emission reductions.

This guardrail is

“intelligible.” And by limiting Section 111 to sources

(rather than their owners or entire markets), there is little

risk of “delegation running riot.” A.L.A. Schechter

47

Poultry Corp. v. United States, 295 U.S. 495, 553 (1935)

(Cardozo, J., concurring).

Not so for the decision below. Section 111 applies

beyond “a discrete set of pollutants” and does not specify

“requisite” regulatory outcomes. Whitman, 531 U.S. at

473. This extended reach makes it even more troubling

the majority untethered EPA from any meaningful

statutory criteria. The majority found enough flexibility

to support a broad delegation, yet left the central

questions unanswered when it comes to how EPA may use

it—including how to measure success and when, if ever,

EPA must stop. Does a “best system of emission

reduction” eliminate the source category’s “significant

contribution” to air pollution? 42 U.S.C. § 7411(b)(1).

Should EPA aim at mitigating danger to “the public

health” or “public welfare?” Id. § 7409(b)(1)-(2). And

should—or even may—EPA worry about keeping some

(all? many?) sources operational when identifying a “best

system”?

To be sure, EPA must “take[] into account” three

factors when identifying the best system: “cost,” “nonair

quality health and environmental impact,” and “energy

requirements.” 42 U.S.C. § 7411(a)(1). Yet without the

rest of the textual constraints the majority jettisoned,

these are not “substantial” guidance. Whitman, 531 U.S.

at 475. The majority itself recognized “no limits on the

types of measures that EPA may consider.” JA.108

(emphasis added). EPA must check the box to explain

how the factors affect its ultimate choice, but it has a

universe of options to start from. Nor does Section 111

explain what “taking into account” means or how strong

countervailing factors must be to overlook even

substantial downsides. The three factors will likely

appear slight once EPA lines up the costs of not acting

48

against “the most pressing environmental challenge of our

time.” JA.71 (quoting Massachusetts, 549 U.S. at 505).

It bears repeating: the D.C. Circuit’s decision has no

limiting principle. Removing the “inside the fenceline”

limit for how EPA may exercise its delegated powers

allows the agency to fashion whatever “system” it chooses,

with the entire economy compelled to respond

accordingly. It could, for instance, bring demand-side

measures to the table—administrative-speak for limited

electricity use or other measures with significant

consequences for consumers. Rolling brownouts, closure

orders, and reconstructing power grids are in play. So too

caps and quotas for all emitters, including manufacturing

plants and private homes. EPA can pick economic

winners and losers among States and source types based

on its own preferences. In the lower court’s view,

Congress intended all this—and maybe more.

Contrast this approach with other statutes that

expressly permit agencies to manage portions of the

economy. The Natural Gas Act authorizes FERC to

greenlight new natural-gas plants using the statutory

benchmark of whether they are “or will be required by the

present or future public convenience and necessity.” 15

U.S.C. § 717f(c)(1), (e). The Clayton Act gives DOJ and

the FTC pre-approval authority over mergers and other

industry movements of capital, but charges them to focus

only on market shifts that “substantially … lessen

competition, or tend to create a monopoly.” 15 U.S.C.

§§ 18, 18a. Even the Emergency Price Control Act did not

grant the unilateral discretion the majority handed EPA.

It tasked the Office of Price Administration with setting

“generally fair and equitable” prices and rents, but it

measured “generally fair and equitable” against prices

during a two-week period in 1941, and required the agency

49

to “effectuate” specific policy goals. Yakus, 321 U.S. at

420-21.

The D.C. Circuit’s version of Section 111(d) contains

none of these guardrails. It allows EPA to unilaterally

reshape the American economy based on its important—

but singular—mission to protect the environment. That

reading at least “sail[s] close to the wind with regard to

the principle that legislative powers are nondelegable.”

Reynolds v. United States, 565 U.S. 432, 450 (2012)

(Scalia, J., dissenting). The Court should moor the agency

back to a rightly construed Section 111.

CONCLUSION

The Court should reverse the decision below.

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

MICHAEL R. WILLIAMS*

Special Counsel

THOMAS T. LAMPMAN

CALEB A. SECKMAN

Assistant Solicitors

General

*admitted in the District of

Columbia, Michigan, and

Virginia; practicing under

supervision of West

Virginia attorneys

Counsel for Petitioner State of West Virginia

50

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

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LESLIE RUTLEDGE

Attorney General

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DAVE YOST

Attorney General

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Attorney General

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MIKE HUNTER

Attorney General

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Attorney General

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Attorney General

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Attorney General

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Attorney General

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Attorney General

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Attorney General

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51

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