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

Supreme Court briefDec 13, 2021

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

IN THE

Supreme Court of the United States

WEST VIRGINIA, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE NORTH AMERICAN COAL CORPORATION

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

WESTMORELAND MINING HOLDINGS LLC

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

NORTH DAKOTA

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR PETITIONER THE NORTH

AMERICAN COAL CORPORATION

YAAKOV M. ROTH

Counsel of Record

JEFFREY R. JOHNSON

J. BENJAMIN AGUIÑAGA

JONES DAY

JEFFERY D. UBERSAX

51 Louisiana Ave., NW

KUSHNER & HAMED CO., LPA Washington, D.C. 20001

1375 E. Ninth St., Ste. 1930 (202) 879-3939

yroth@jonesday.com

Cleveland, OH 44114

CHARLES T. WEHLAND

JONES DAY

77 W Wacker Dr.

Chicago, IL 60601

Counsel for Petitioner

QUESTION PRESENTED

Whether 42 U.S.C. § 7411(d), which authorizes the

EPA to impose standards “for any existing source”

based on limits “achievable through the application of

the best system of emission reduction” that has been

“adequately demonstrated,” grants the EPA authority

not only to impose standards based on technology and

methods that can be applied at and achieved by that

existing source, but also allows the agency to develop

industry-wide systems like cap-and-trade regimes.

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT

The D.C. Circuit consolidated numerous cases

under Case No. 19-1140. Respondents in the D.C.

Circuit proceeding below were the Environmental

Protection Agency and its Administrator.*

Petitioners and intervenors in the D.C. Circuit

proceedings below were as follows.

No. 19-1140: Petitioners were American Lung

Association and American Public Health Association.

Intervenor for petitioners was: State of Nevada.

Intervenors for respondents were: AEP Generating

Company, AEP Generation Resources Inc., America's

Power, Appalachian Power Company, Chamber of

Commerce of the United States of America, Indiana

Michigan Power Company, Kentucky Power

Company, Murray Energy Corporation, National

Mining Association, National Rural Electric

Cooperative Association, Public Service Company of

Oklahoma, Southwestern Electric Power Company,

Westmoreland Mining Holdings LLC, Wheeling Power

Company, Basin Electric Power Cooperative, Phil

Bryant, Governor of the State of Mississippi, Georgia

Power Company, Indiana Energy Association, Indiana

Utility Group, Mississippi Public Service Commission,

Nevada Gold Mines LLC, Nevada Gold Energy LLC,

Powersouth Energy Cooperative, the States of

Alabama, Alaska, Arkansas, Georgia, Indiana,

Kansas, Kentucky, by and through Governor Matthew

During the pendency of the proceedings below, the

Administrator of the EPA was Andrew Wheeler. The current

officeholder is Michael Regan, who is automatically substituted

as a party.

iii

G. Bevin, Louisiana, Missouri, Montana, Nebraska,

North Dakota, Ohio, Oklahoma, South Carolina,

South Dakota, Texas, Utah, West Virginia, and

Wyoming.

No. 19-1179: Petitioner was The North American

Coal Corporation (Petitioner here).

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1165: Petitioners were the States of New

York, California, Colorado, Connecticut, Delaware,

Hawaii, Illinois, Maine, Maryland, Minnesota, New

Jersey, New Mexico, North Carolina, Oregon, Rhode

Island, Vermont, Washington, Wisconsin, District of

Columbia, Commonwealths of Massachusetts,

Pennsylvania, and Virginia, People of the State of

Michigan, City of Boulder, City of Chicago, City of Los

Angeles, City of New York, City of Philadelphia, and

City of South Miami.

No. 19-1166:

Petitioners

were

Appalachian

Mountain Club, Center for Biological Diversity, Clean

Air Council, Clean Wisconsin, Conservation Law

Foundation,

Environmental

Defense

Fund,

Environmental Law and Policy Center, Minnesota

Center for Environmental Advocacy, Natural

Resources Defense Council, and Sierra Club.

Intervenors for respondents were: Indiana Energy

Association and Indiana Utility Group.

No. 19-1173: Petitioner

Foundation, Inc.

was

Chesapeake

Bay

Intervenors for respondents were: International

Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers and Helpers, AFL-CIO,

International Brotherhood of Electrical Workers,

AFL-CIO, and United Mine Workers of America, AFLCIO.

No. 19-1175:

Petitioners

were

Robinson

Enterprises, Inc., Nuckles Oil Company, Inc., doing

business as Merit Oil Company, Construction

Industry Air Quality Coalition, Liberty Packing

Company, LLC, Dalton Trucking, Inc., Norman R.

Brown, Joanne Brown, Competitive Enterprise

Institute, and Texas Public Policy Foundation.

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1176: Petitioner was Westmoreland Mining

Holdings LLC.

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1177: Petitioner was City and County of

Denver Colorado.

No. 19-1185: Petitioner was Biogenic CO2 Coalition.

Intervenors for respondents were: 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 and Policy Center, Minnesota

Center for Environmental Advocacy, Natural

Resources Defense Council, and Sierra Club.

No. 19-1186: Petitioner was Advanced Energy

Economy.

No. 19-1187: Petitioners were American Clean

Power Association and Solar Energy Industries

Association.

No. 19-1188: Petitioners were Consolidated Edison,

Inc., Exelon Corporation, National Grid USA, New

York Power Authority, Power Companies Climate

Coalition,

Public

Service

Enterprise

Group

Incorporated, and Sacramento Municipal Utility

District.

Pursuant to Supreme Court Rule 29.6, The North

American Coal Corporation is a wholly-owned

subsidiary of NACCO Industries, Inc.

NACCO

Industries, Inc., is a publicly-traded corporation that

owns more than 10% of the stock of The North

American Coal Corporation. No other publicly-held

corporation owns more than 10% of the stock of The

North American Coal Corporation.

vii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT ........ ii

TABLE OF AUTHORITIES ...................................... ix

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

PROVISIONS INVOLVED ........................................ 4

STATEMENT ............................................................. 4

Statutory Background ................................ 4

The Clean Power Plan ................................ 6

This Court’s Stay Order ............................. 9

The Affordable Clean Energy Rule .......... 10

Procedural History ................................... 11

SUMMARY OF ARGUMENT .................................. 12

ARGUMENT ............................................................. 14

THE MAJOR QUESTIONS DOCTRINE

FORECLOSES THE D.C. CIRCUIT’S

INTERPRETATION ............................................... 16

Congress Must Clearly Confer

Authority To Resolve Major

Questions .................................................. 17

viii

TABLE OF CONTENTS

(continued)

Page

II.

The D.C. Circuit’s Construction

Runs Afoul of the Major

Questions Doctrine ................................... 22

TEXT, STRUCTURE, AND HISTORY

FORECLOSE THE D.C. CIRCUIT’S

INTERPRETATION ............................................... 33

The Statutory Text Requires

the EPA to Base Its Standards

on Limits Applicable to and

Achievable by Existing Sources ............... 33

The Statutory Structure

Confirms the Limited Scope

of the EPA’s Authority ............................. 41

The History of § 7411(d)

Supports the Narrower,

Source-Specific Reading ........................... 44

CONCLUSION ......................................................... 49

TABLE OF AUTHORITIES

Page(s)

CASES

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

& Human Servs.,

141 S. Ct. 2485 (2021) ...................................passim

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ................................................ 4

Bond v. United States,

572 U.S. 844 (2014) .............................................. 39

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

Def. Council, Inc.,

467 U.S. 837 (1984) .................................. 16, 17, 33

Crowell v. Benson,

285 U.S. 22 (1932) .......................................... 20, 21

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) .......................................... 30

FDA v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) .................................. 17, 19, 26

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................. 19

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................ 20, 21, 22, 27

Indianapolis Power & Light Co. v. EPA,

58 F.3d 643 (D.C. Cir. 1995) ................................ 42

Indus. Union Dep’t, AFL–CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) .............................................. 17

TABLE OF AUTHORITIES

(continued)

Page(s)

King v. Burwell,

576 U.S. 473 (2015) ........................................ 19, 28

Leocal v. Ashcroft,

543 U.S. 1 (2004) .................................................. 16

Maryland v. King,

567 U.S. 1301 (2012) ............................................ 10

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................ 6

Medellín v. Texas,

552 U.S. 491 (2008) .............................................. 48

Mexichem Fluor, Inc. v. EPA,

866 F.3d 451 (D.C. Cir. 2017) .............................. 43

Michigan v. EPA,

576 U.S. 743 (2015) ................................................ 4

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 20

Nat’l Rev., Inc. v. Mann,

140 S. Ct. 344 (2019) ............................................ 25

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) ........................ 47, 48

NLRB v. Noel Canning,

573 U.S. 513 (2014) .............................................. 48

Paul v. United States,

140 S. Ct. 342 (2019) ............................................ 20

Romag Fasteners, Inc. v. Fossil, Inc.,

140 S. Ct. 1492 (2020) .......................................... 34

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) ........................................ 16, 35

Textron Lycoming Reciprocating Engine

Div., Avco Corp. v. Auto. Workers,

523 U.S. 653 (1998) .............................................. 40

U.S. Forest Serv. v. Cowpasture

River Pres. Ass’n,

140 S. Ct. 1837 (2020) .......................................... 43

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ........................ 19, 21

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .......................................passim

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .......................... 20, 21

West Virginia v. EPA,

136 S. Ct. 1000 (2016) ...................................... 9, 10

Weyerhaeuser Co. v. U.S. Fish &

Wildlife Serv.,

139 S. Ct. 361 (2018) ............................................ 38

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .................................. 19, 20, 32

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. art. I ........................................................ 20

26 U.S.C. § 36B .......................................................... 28

28 U.S.C. § 1254 .......................................................... 4

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

42 U.S.C. § 264 .......................................................... 18

Clean Air Act

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

42 U.S.C. § 7429 ................................................... 47

42 U.S.C. § 7607 ..................................................... 9

42 U.S.C. §§ 7651–7651o...................................... 42

42 U.S.C. § 7651f ............................................ 29

42 U.S.C. §§ 7671–7671q ..................................... 42

OTHER AUTHORITIES

American Clean Energy and Security

Act, H.R. 2454, 111th Cong. (2009) ..................... 26

American Renewable Energy and Efficiency

Act, H.R. 5301, 113th Cong. (2014) ..................... 27

40 C.F.R. § 60.22.................................................... 5, 31

Amy Coney Barrett, Suspension and

Delegation, 99 CORNELL L. REV. 251 (2014) ........ 21

Emission Guideline for Sulfuric Acid Mist,

42 Fed. Reg. 55,796 (Oct. 18, 1977) ..................... 45

Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act,

74 Fed. Reg. 66,496 (Dec. 15, 2009) ....................... 6

Al Gore, Opinion, The Climate Crisis Is

the Battle of Our Time, and We Can

Win, N.Y. TIMES (Sept. 20, 2019) ......................... 30

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kraft Pulp Mills; Final Guideline

Document; Availability, 44 Fed.

Reg. 29,828 (May 22, 1979) .................................. 45

Maxine Joselow & Niina H. Farah, Will the

Supreme Court Take on EPA’s Climate

Rule?, E&E News (Aug. 10, 2021) ....................... 32

National Mining Association, National

Mining Association, EPA’s Clean Power

Plan: An Economic Impact Analysis (2015) ........ 24

Phosphate Fertilizer Plants, Final

Guideline Document Availability,

42 Fed. Reg. 12,022 (Mar. 1, 1977) ...................... 44

Primary Aluminum Plants; Availability

of Final Guideline Document,

45 Fed. Reg. 26,294 (Apr. 17, 1980) ..................... 45

S.J. Res. 24, 114th Cong. (2015) ............................... 27

Save Our Climate Act, H.R. 3242,

112th Cong. (2011) ............................................... 26

Courtney Scobie, Supreme Court Stays

EPA’s Clean Power Plan, AM. BAR

ASS’N PRAC. POINTS (Feb. 17, 2016) ..................... 10

Standards of Performance for Greenhouse

Gas Emissions From New, Modified,

and Reconstructed Stationary Sources:

Electric Utility Generating Units,

80 Fed. Reg. 64,510 (Oct. 23, 2015) ............. 6, 7, 46

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

Standards of Performance for New and

Existing Stationary Sources: Electric

Utility Steam Generating Units,

70 Fed. Reg. 28,606 (May 18, 2005)......... 45, 47, 48

Standards of Performance for New

Stationary Sources and Emissions

Guidelines for Existing Sources:

Municipal Waste Combustors,

60 Fed. Reg. 65,387 (Dec. 19, 1995) ..................... 47

Standards of Performance for New

Stationary Sources and Guidelines

for Control of Existing Sources:

Municipal Solid Waste Landfills,

61 Fed. Reg. 9905 (Mar. 12, 1996) ....................... 45

State Plans for the Control of Certain

Pollutants From Existing Facilities,

40 Fed. Reg. 53,340 (Nov. 17, 1975) .................... 41

Joby Warrick, White House Set to Adopt

Sweeping Curbs on Carbon Pollution,

WASH. POST (Aug. 1, 2015) ................................... 24

The White House, Executive Order on

Tackling the Climate Crisis at Home

and Abroad (Jan. 27, 2021).................................. 32

Ilan Wurman, Nondelegation at the

Founding, 130 Yale L.J. 1490 (2021) .................. 21

INTRODUCTION

Tucked away in a dusty corner of Title 42, § 111(d)

of the Clean Air Act received little attention for the

first 40 years of its existence. And why would it? The

provision is by its nature both ancillary and marginal.

When the EPA sets performance standards for new

sources of air pollution, this subsection allows it to

direct states to adopt performance standards for some

existing sources of the same type. Those standards

must reflect emission limitations that the agency finds

are actually “achievable” through the “best system of

emission reduction” that has been “adequately

demonstrated” for that “source.” The EPA’s long-held

understanding was that those standards must be

performable by the source, using controls applicable to

that source—like a filter on a smokestack. Indeed,

invoking that power just a handful of times since 1970,

the EPA used it to mandate control technologies like

scrubbers to reduce fluoride emissions from phosphate

fertilizer plants, and evaporator systems to limit

sulfur emissions from kraft pulp mills.

All of that changed in 2015. Eager to find ways to

bypass Congress and combat climate change with a

pen and a phone, the EPA “discovered” that 42 U.S.C.

§ 7411(d) is far broader. The “best system” of emission

reduction, it now claimed, can transcend measures at

the source level and extend to systemic, industry-wide

policies—even those that would require existing

sources to close or to subsidize their competitors. On

that view, this provision is revolutionary. Instead of a

gap-filler that lets the EPA ensure efficient operations

through modern technology, it is a blank check for the

agency to mandate any nationwide “system” it can

devise.

That extraordinary interpretation was the premise

for the EPA’s 2015 “Clean Power Plan” (CPP), a

sweeping top-down overhaul of the nation’s electric

power generation grid. The CPP rested on the EPA’s

determination that the “best system” for reducing

greenhouse gas emissions from existing coal- and gasfired power plants was to use them less. These plants

could reduce emissions by “shifting” generation to

other sources, e.g., by investing in renewable energy or

acquiring “credits” from those lower-emitting sources.

Section 7411(d) was thus used to justify the imposition

of a national cap-and-trade regime that Congress not

only had never enacted, but had repeatedly rejected.

Faced with this unprecedented rule, this Court took

equally unprecedented action, by staying the CPP

even before the D.C. Circuit reviewed it on the merits.

Soon after, the EPA took the hint and went back to the

drawing board, so that litigation never proceeded to

the merits. Instead, the agency repealed the CPP on

the basis that it exceeded the EPA’s statutory

authority. Returning to its traditional understanding,

the EPA explained that § 7411(d) directs standards

“for any existing source,” based on the best achievable

“system of emission reduction” that can be applied at

and by that source. But the agency cannot formulate

a “system of emission reduction” for an industry as a

whole, demanding that electricity providers reduce

emissions by “shifting” generation beyond their own

boundaries. The “best system,” in short, must be

source-based, not industry-wide. Accordingly, the EPA

promulgated a new rule, the Affordable Clean Energy

plan (ACE Rule), which developed achievable emission

standards for coal and gas plants, based on measures

that a coal or gas plant itself could actually adopt.

In the decision below, however, a D.C. Circuit panel

vacated the EPA’s repeal and replacement of the CPP.

The majority held that the statute is capacious enough

to empower the EPA to refashion an industry. So five

years after this Court stayed the CPP because it so

clearly exceeded the EPA’s authority, the D.C. Circuit

held that the EPA has precisely that authority.

This Court should reverse. Using ordinary tools of

statutory construction, the panel below was wrong to

find ambiguity here. Particularly when the statutory

definitions are plugged into § 7411(d), it is clear that

the EPA is limited to “achievable” emission reduction

measures “for” an “existing” source, not any “system”

that calls on the facility’s owner to replace it.

But even if the court were correct that this statute

could be read to authorize any national climate change

policies that the EPA finds “best,” the major questions

doctrine forecloses that construction. This Court has

long refused to discover, in mouseholes far larger than

this, vast delegations of power for agencies to resolve

major economic and political questions. That canon

reflects not only common sense about congressional

action, but deeper constitutional values touching the

separation of powers. Major policy choices affecting

the national economy should not be made by unelected

agency officials—and this Court should certainly not

construe ambiguity to authorize otherwise. That rules

out the D.C. Circuit’s limitless interpretation of the

statute. How to combat climate change on a national

level is a serious issue that tees up hard policy choices.

This Court should reverse to ensure that those

momentous trade-offs are made by Congress, as the

Constitution contemplates.

OPINIONS BELOW

The D.C. Circuit’s decision (JA.53) is reported at 985

F.3d 914.

JURISDICTION

The D.C. Circuit issued its decision on January 19,

2021. JA.53. This Court granted a timely petition for

writ of certiorari on October 29, 2021, and has

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

PROVISIONS INVOLVED

The core statutory provisions at issue are 42 U.S.C.

§ 7411(a)–(d), reprinted at Pet.App.204a.

STATEMENT

A. Statutory Background.

“The Clean Air Act establishes a series of regulatory

programs to control air pollution from stationary

sources (such as refineries and factories).” Michigan

v. EPA, 576 U.S. 743, 747 (2015). Each program has

its own unique target and regulatory structure.

The program at issue here is set forth in 42 U.S.C.

§ 7411. Titled “Standards of performance for new

stationary sources,” 42 U.S.C. § 7411, that provision

“directs the EPA ... to list ‘categories of stationary

sources’ that ‘[it believes] ... caus[e], or contribut[e]

significantly to, air pollution.’ ” Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410, 424 (2011). After listing

such a category of sources, the EPA must set rules

establishing federal standards of performance for

emissions from new sources in that category. 42

U.S.C. § 7411(b)(1)(B). “[N]ew source[s]” are those

that are built after the relevant regulation is proposed.

Id. § 7411(a)(2).

Although § 7411 is focused (as its title suggests) on

new sources, an ancillary subsection ((d)) addresses

existing sources. In parallel to the definition of a “new”

source, an “existing” source is any “building, structure,

facility, or installation which emits or may emit any

air pollutant,” and which is built before the regulation

is proposed. Id. § 7411(a)(3), (6).

After the EPA publishes “standards of performance”

for new sources—and assuming the pollutant at issue

is one of the rare few not already subject to regulation

under certain other programs in the Act—it must

“prescribe regulations” calling for states to establish

“standards of performance for any existing source” of

that type. Id. § 7411(d). A “standard of performance”

is one that “reflects the degree of emission limitation

achievable through the application of the best system

of emission reduction” that the EPA “determines has

been adequately demonstrated,” while considering

cost, health and environmental impact, and energy

needs. Id. § 7411(a)(1).

This is a multi-step process. The EPA first issues

an “emission guideline that reflects the application of

the best system of emission reduction (considering the

cost of such reduction) that has been adequately

demonstrated for designated facilities.” 40 C.F.R.

§ 60.22. States then develop and impose a “standard

of performance” based on the achievable emission

reductions identified by the EPA “for any existing

source” in the category. 42 U.S.C. § 7411(d)(1). Thus,

while the states ultimately impose the standards,

those standards are necessarily based on and defined

by the “system” from which the EPA derives its

guideline. If a state fails to impose a plan, the EPA

can do so directly. Id. § 7411(d)(2).

B. The Clean Power Plan.

In Massachusetts v. EPA, this Court held that

carbon dioxide and other greenhouse gases could fit

within the Clean Air Act’s general definition as air

pollutants. 549 U.S. 497, 511 (2007). In 2009, the EPA

issued an “endangerment finding,” concluding that a

mix of six greenhouse gases emitted by motor vehicles

may “reasonably be anticipated both to endanger

public health and to endanger public welfare.”

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean

Air Act, 74 Fed. Reg. 66,496, 66,497 (Dec. 15, 2009).

Largely on the basis of that finding, the EPA in 2015

published a rule, known as the Clean Power Plan (or

CPP), regulating the emission of carbon dioxide from

existing power plants. JA.273.1 The EPA’s stated

“authority for this rule” was § 7411(d). JA.496. In the

CPP, the EPA set “final emission guidelines” for states

to use in establishing performance standards for those

plants. JA.273. The performance rates and targets in

those guidelines were derived from what the EPA had

identified as the “best system of emission reduction”

for existing fossil-fuel-fired plants. Id.

The EPA defined that “best system” as comprising

three “building blocks.” JA.483–84. The first was

uncontroversial: “[i]mproving heat rate at affected

coal-fired” plants, through “equipment upgrades” and

“improved staff training.” JA.484, 576. But the other

building blocks were not technologies or systems that

1 The EPA issued a separate rule for new power plants.

See

Standards of Performance for Greenhouse Gas Emissions From

New, Modified, and Reconstructed Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015).

could be adopted or applied by any given plant.

Rather, they were methods of “generation shifting”

across the grid, meaning a reduction in electricity

generated by the source in favor of more supply from

other energy sources. One such “method” was moving

generation from coal-fired plants to (relatively lower

emitting) gas-fired plants. JA.484. The second was to

shift generation from gas-fired plants to renewable

sources like solar or wind. Id.

As noted, the EPA derived “emission performance

rates” for coal and gas plants, as well as targets for

each state, from those “building blocks.” JA.484. That

is, the agency projected the degree to which coal- and

gas-fired energy could be replaced by available

renewable sources, and then used those “replacement

potential” figures to set adjusted emissions rates on a

regional and then state-by-state basis. JA.998; see

also JA.950–1008. By backing into emissions rates

and targets that way, i.e., by assuming replacement of

gas- and coal-fired generation, the EPA effectively

mandated that replacement.

Remarkably, the resulting target performance rates

for existing sources were lower than those imposed for

new sources. Compare Standards of Performance for

Greenhouse Gas Emissions From New, Modified, and

Reconstructed Stationary Sources: Electric Utility

Generating Units, 80 Fed. Reg. 64,510, 64,513 (Oct.

23, 2015), with JA.484. The EPA demanded, in other

words, that existing plants reduce their emission rates

below even the requirements for new such plants

(themselves so stringent that new coal-fired plants are

virtually never built, see 80 Fed. Reg. at 64,526).

Of course, nobody believed the existing plants could

actually achieve those dramatically reduced emission

rates just by modifying their own operations. Rather,

under the EPA’s regime, existing plants would acquire

“rate-based emission credits” by building or investing

in renewable energy sources, and those credits would

then be treated as “reducing” the coal or gas plant’s

own emissions rate. See JA.601–13. This legal

fiction—that an individual plant was reducing its own

emissions by funding other energy sources—was an

“integral part” of the EPA’s “analysis.” JA.606.

Existing plants could also comply by reducing their

own activity or closing down. See JA.572.

Thus, the EPA openly recognized that the standards

it contemplated were, by definition, not based on

measures that could actually be applied at most

existing coal- and gas-fired plants on their own, like

improved efficiency or carbon capture. Nor could the

CPP’s standards actually be achieved by those plants

on their own. “Rather, most of the CO2 controls need

to come in the form of ... replacement of higher

emitting generation with lower- or zero-emitting

generation.” JA.579–80; see also, e.g., JA.583 (“[T]he

magnitude of emission reductions included in the

proposed rule from generation shifting is achievable.”

(emphasis added)). Put another way, the agency’s

plan assumed replacing many of the “existing” sources

that the EPA had been directed to regulate.

Given § 7411(d)’s narrow scope, the EPA previously

had used it to issue only a half-dozen rules, targeting

an even smaller number of pollutants. See JA.1725,

1756 & n.63. Never had the agency imposed standards

based on emission reduction measures not achievable

by the source itself. JA.1758 & n.65.

The EPA’s textual basis for this sweeping authority

was not the operative language of § 7411(d), but rather

a definitional subsection, 42 U.S.C. § 7411(a). Section

7411(d) calls for “standards of performance for any

existing source,” and the agency hung its hat on the

definition of a “standard of performance”: one that

“reflects the degree of emission limitation achievable

through the application of the best system of emission

reduction.” Id. § 7411(a)(1). In the phrase “best

system of emission reduction,” the EPA believed it had

found a concept “sufficiently broad,” JA.543, to include

not only technologies and systems that individual

sources could adopt to improve their own operations,

but also sector-wide “generation shifting” between

sources. The EPA interpreted “system” to encompass

any “set of measures that work together to reduce

emissions,” id., regardless of whether they could be

used at or achieved “inside the fence” of any source.

C. This Court’s Stay Order.

Given the novelty of its reading of the Act and the

dramatic forecasts of its effect on the power industry,

the CPP unsurprisingly sparked immediate challenge.

Consistent with the Clean Air Act’s judicial-review

provision, 42 U.S.C. § 7607(b)(1), a group of states and

private parties filed petitions for review in the D.C.

Circuit. See, e.g., West Virginia v. EPA, No. 15-1363

(D.C. Cir. Oct. 23, 2015). They also unsuccessfully

sought a stay of the CPP in that court, pending judicial

review. Id., Doc. No. 1594951. The challengers then

sought a stay in this Court. See West Virginia v. EPA,

136 S. Ct. 1000 (2016).

Reportedly for the first time ever,2 this Court stayed

a regulation before a lower court reviewed it. Id. In

granting that relief, a majority of Justices necessarily

concluded that there was at least: “(1) ‘a reasonable

probability’ that th[e] Court w[ould] grant certiorari,

(2) ‘a fair prospect’ that the Court w[ould] then reverse

the decision below, and (3) ‘a likelihood that

irreparable harm [will] result from the denial of a

stay.’ ” Maryland v. King, 567 U.S. 1301, 1302 (2012)

(Roberts, C.J., in chambers).

D. The Affordable Clean Energy Rule.

Following the stay, the EPA reassessed its position;

the litigation “was held in abeyance and ultimately

dismissed.” JA.88. Rather than defend the CPP, the

EPA took the hint and replaced it.

In its 2019 ACE Rule, the EPA explained that the

CPP “read the statutory term ‘best system of emission

reduction’ so broadly as to encompass measures the

EPA had never before envisioned in promulgating

performance standards under [§ 7411].” JA.1741.

“This was the first time the EPA interpreted the [best

system of emission reduction] to authorize measures

wholly outside a particular source.” JA.1758.

The EPA now concluded that the statute could not

bear this interpretation. For one, the text was clear:

“Congress expressly limited the universe of systems of

emission reduction from which the EPA may choose ...

to those systems whose ‘application’ to an ‘existing

source’ will yield an ‘achievable’ ‘degree of emission

JA.1745.

For another, the EPA

limitation.’ ”

“believe[d] that [the major questions] doctrine should

2 Courtney Scobie, Supreme Court Stays EPA’s Clean Power

Plan, AM. BAR ASS’N PRAC. POINTS (Feb. 17, 2016).

apply … and that its application confirm[ed]” a narrow

reading. JA.1770. After all, “[a]t the time the CPP

was promulgated, its generation-shifting scheme was

projected to have billions of dollars of impact,” and it

“would have affected every electricity customer (i.e.,

all Americans)” and “disturbed the state-federal and

intra-federal jurisdictional scheme.”

JA.1770–71.

Such vast power cannot be inferred without a clearer

statement vesting it in the agency. See id.

The EPA thus “conclude[d] that the interpretation

relied upon in the CPP ignored or misinterpreted

critical statutory elements and rules of statutory

construction,” and repealed it. JA.1759. In its place,

the EPA promulgated standards and limits that could

be applied at and achieved by a source itself.

E. Procedural History.

Numerous states, activist groups, and industry

participants challenged various aspects of the rule in

the D.C. Circuit. Most objected to repeal of the CPP,

arguing that § 7411 does authorize the EPA to require

generation shifting, ergo the repeal was unlawfully

premised on a flawed narrower view. Petitioner here,

the North American Coal Corporation, was also a

party below, but supported repeal of the CPP.

The D.C. Circuit agreed with the challengers. The

majority believed the definitional phrase “best system

of emission reduction” could include category-wide

systems, as opposed to those applicable to particular

sources. JA.108–10. The court also dismissed the

major questions doctrine, concluding it did not apply

because regulating greenhouse gases was in “the

EPA’s wheelhouse.” JA.137. In the court’s view, this

doctrine was particularly misplaced because the Clean

Air Act imposed “its own limits” on the agency,

Congress had preserved “the States’ independent role”

in the process, and the EPA had “tied its own hands”

through other regulatory requirements. JA.139, 143

n.9, 149. Incredibly, the majority did not even mention

this Court’s stay of the CPP.

Judge Walker dissented. “Hardly any party,” he

observed, “makes a serious and sustained argument

that § [7411(d)] includes a clear statement

unambiguously authorizing the EPA to consider offsite solutions like generation shifting.” JA.217. “And

because the rule implicates ‘decisions of vast economic

and political significance,’ Congress’s failure to clearly

authorize the rule means the EPA lacked the

authority to promulgate it.” Id.

After the decision, the EPA secured a partial stay of

the mandate as to repeal of the CPP, so the agency

could consider a new rule consistent with the decision.

JA.256–72. This Court granted certiorari.

SUMMARY OF ARGUMENT

The question presented is whether the EPA was

right in the CPP (when it asserted the power to adopt

guidelines based on any “system” it concludes is “best”

for the industry as a whole), or in the later ACE Rule

(when it concluded that the guidelines must reflect

measures that are applicable to and achievable by an

individual source itself). The D.C. Circuit held that

the agency got it right the first time, and that the

repeal of the CPP therefore reflected legal error by the

EPA about the scope of its authority. This Court

should reverse and hold that the ACE Rule correctly

adopted a limiting principle firmly grounded in Clean

Air Act’s text, structure, and history.

I. Even if the statute on its face were ambiguous,

the major questions doctrine forecloses the expansive

interpretation that the D.C. Circuit embraced. Under

that doctrine, courts refuse to construe ambiguity as

delegating to agencies vast power over major economic

or political decisions. Such interpretations are less

plausible as a matter of legislative practice, and test

the limits of Congress’s power to delegate legislative

authority as a matter of constitutional structure.

This case is a perfect example, because the D.C.

Circuit’s construction allows the EPA to restructure

every carbon-emitting industry, yielding the agency

an extravagant level of control over economic activity

across the nation. The Clean Air Act would, on this

reading, empower the EPA to set emission standards

based on any “system” it believes is “best” for solving

the global problem of climate change. Such an

expansive delegation of such enormous power cannot

fairly be inferred from mere ambiguity.

II. In all events, § 7411(d) is unambiguous. Its text

calls for emission standards “for any existing source,”

not for the industry or nation as a whole. And layering

on the statutory definitions confirms that such sourcespecific performance standards must be “achievable”

through the “application” to that source of an emission

reduction system, not jerry-rigged on the premise that

sources will cease to exist or fictionally “reduce” their

emissions rate by acquiring credits from others. Only

by decoupling statutory definitions from the operative

provision was the D.C. Circuit able to shed § 7411(d)’s

obvious source-specific focus. That is indefensible as a

matter of statutory construction. The court’s error

also makes a hash of the statutory scheme, and

reverses over forty years of agency practice.

ARGUMENT

The EPA’s longstanding construction of § 7411(d)—

abandoned only briefly to prop up the revolutionary

CPP—calls on the agency to undertake a source-level

inquiry into what emissions reductions are actually

“achievable,” and to derive performance standards

from those achievable limits. Under that intuitive

understanding, the EPA can mandate that gas power

plants use the most up-to-date equipment to avoid gas

leaks, or direct coal plants to use modern heat transfer

technology to improve efficiency and reduce emissions.

In short, the EPA can ensure that existing sources

operate as cleanly and efficiently as feasible—but it

cannot simply ban those sources into obsolescence.

That would fight the premise of imposing “achievable”

standards of “performance” on “existing” sources.

By contrast, the D.C. Circuit interpreted the statute

to allow the EPA to devise a “best system of emission

reduction” at a far higher level of generality. Under

this account, the agency need not concern itself with

what measures any particular source could actually

adopt or what emission reductions it could actually

achieve by modernizing or upgrading its operations.

Instead, the EPA can pick and choose the sources it

prefers—and regulate the rest out of existence by

“shifting” their production through tradeable credits

and similar artifices. Indeed, the EPA’s authority is

nearly unlimited: It can impose a carbon tax, cap-andtrade regime, or any other policy it wants—any could

qualify as the “best system” to reduce emissions.

Section 7411 is thereby transformed from a narrow

and rarely-used means of keeping older facilities upto-date into an open-ended mandate for the EPA to

“solve” climate change however it sees fit.

Importantly, even the D.C. Circuit majority did not

claim that § 7411 must be read that expansively. It

instead held that the statute does not unambiguously

foreclose the revolutionary interpretation. It then

reasoned that the EPA acted arbitrarily by refusing to

consider adopting it. The Court should reverse for two

reasons.

First, even accepting the D.C. Circuit’s premise that

the statute is otherwise ambiguous, that ambiguity is

resolved by the major questions doctrine. That tool of

construction, informed by constitutional principles,

requires rejecting the interpretation under which

Congress has broadly delegated to executive agencies

the vast power to decide matters of great economic or

political significance. Akin to the rule of lenity or the

federalism clear-statement rule, the major questions

doctrine safeguards constitutional values by resolving

statutory ambiguity in favor of a particular outcome—

here, that major policy decisions are made by elected

legislators, not outsourced to agency officials and staff.

Second, traditional tools of statutory construction

compel the same result. The panel went out of its way

to find ambiguity in a text that has none. Section 7411

allows the EPA to direct states to impose a “standard

of performance” that is “achievable” by “application” of

the “best system of emission reduction” “for” “any

existing source.” On its face and in ordinary parlance,

this requires the “best system” to be performable by

the existing source on its own and within its own

boundaries—it does not allow the EPA to declare it

“best” to reshape an entire industry by instructing coal

plant owners to build wind farms. Nor can the radical

interpretation below be reconciled with the statutory

structure or history.

In short, whether there is no ambiguity in the first

place or whether the major questions doctrine resolves

that ambiguity, the decision below is wrong about the

scope of the statute. This Court should thus reverse

and remand to sustain the repeal of the CPP.

THE MAJOR QUESTIONS DOCTRINE FORECLOSES

THE D.C. CIRCUIT’S INTERPRETATION.

Courts often will construe statutory ambiguity as a

silent delegation to the agency charged with enforcing

that statutory scheme, to make a “reasonable choice

within a gap left open by Congress.” Chevron U.S.A.

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866

(1984). But not always. Sometimes another canon of

construction supersedes that deference. When the

statute carries criminal penalties, for example, the

rule of lenity requires resolving ambiguity in favor of

the defendant. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8

(2004). Or if one interpretation threatens to disturb

the balance of powers between the federal government

and the states, courts do not allow agencies to adopt

that interpretation without a clear statement. See

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159, 172 (2001).

This case implicates a similar rule, dubbed by some

the major questions doctrine.

It embodies the

commonsense presumption—backed by constitutional

concerns about delegation of legislative power—that

Congress does not use statutory ambiguity to confer

authority on agencies over especially significant or farreaching matters. Applying that rule resolves any

ambiguity the court below purported to have found in

§ 7411(d), and so the EPA in the ACE Rule was not

mistaken about the scope of its legal authority.

A. Congress Must Clearly Confer Authority

To Resolve Major Questions.

The major questions doctrine is effectively a clearstatement rule, under which Congress must “speak

clearly if it wishes to assign to an agency decisions of

vast ‘economic and political significance.’ ” Util. Air

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

It rests on two foundations: a descriptive presumption

about how Congress writes laws, and a substantive

guardrail for the separation of powers.

1. Although the label is more recent, the major

questions doctrine itself traces back at least 20 years

in this Court’s jurisprudence, if not further. In FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120

(2000), the Court considered the FDA’s novel effort to

regulate cigarettes as medical devices. The Court

explained that, notwithstanding Chevron deference, in

some cases there is “reason to hesitate before

concluding that Congress has intended ... an implicit

delegation” to the agency. Id. at 159. And the FDA’s

new assertion of “jurisdiction to regulate an industry

constituting a significant portion of the American

economy” was a perfect example. Id. “Congress could

not have intended to delegate a decision of such

economic and political significance to an agency in so

cryptic a fashion.” Id. at 160; see also Indus. Union

Dep’t, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607,

645 (1980) (plurality opinion) (finding it would be

“unreasonable to assume that Congress intended to

give the Secretary the unprecedented power over

American industry that would result from the

Government’s view of” his delegated authority, at least

in “the absence of a clear mandate in the Act”).

In the Clean Air Act context, this Court applied the

same rule in UARG. There, the Court considered two

provisions that require permits to construct or operate

any facility that is a major source of “air pollutants.”

573 U.S. at 308–09. The EPA defined “air pollutant”

to include greenhouse gases. This Court rebuffed that

reading, however, since it amounted to “an enormous

and transformative expansion in EPA’s regulatory

authority without clear congressional authorization.”

Id. at 324. The Court outlined the practical impacts of

the EPA’s interpretation: It would “require permits for

the construction and modification of tens of thousands,

and the operation of millions, of small sources”—an

“extravagant statutory power over the national

economy.” Id. And that in turn made the construction

impermissible. The Court greets “with a measure of

skepticism” an agency’s claim to have found “in a longextant statute an unheralded power to regulate a

‘significant portion of the American economy.’ ” Id.

Most recently, the Court invoked that skepticism to

effectuate an injunction against the CDC’s eviction

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

& Human Servs., 141 S. Ct. 2485 (2021). The agency

cited its authority under the Public Health Service Act

“to prevent the introduction, transmission, or spread

of communicable diseases.” 42 U.S.C. § 264(a). This

Court held that “[e]ven if the text were ambiguous, the

sheer scope of the CDC’s claimed authority ... would

counsel against the Government’s interpretation.”

141 S. Ct. at 2489. Reaching potentially millions of

tenants, the moratorium’s “economic impact” was

projected to be “nearly $50 billion.” Id. Even more

important, it was “hard to see what measures” the

CDC’s interpretation “would place outside [its] reach.”

Id. Without a clear statement, the Court refused to

embrace the agency’s self-serving “claim of expansive

authority.” Id.

As then-Judge Kavanaugh once summarized, “[i]f

an agency wants to exercise expansive regulatory

authority over some major social or economic

activity … an ambiguous grant of statutory authority

is not enough.” U.S. Telecom Ass’n v. FCC, 855 F.3d

381, 421 (D.C. Cir. 2017) (Kavanaugh, J., dissenting

from the denial of rehearing en banc); see also King v.

Burwell, 576 U.S. 473, 485 (2015) (refusing to defer to

IRS on question that “involv[ed] billions of dollars in

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

insurance for millions of people”); Gonzales v. Oregon,

546 U.S. 243, 267–68 (2006) (requiring more than

“implicit delegation” to support “broad and unusual

authority” to define legitimate medical practice).

2. The major questions doctrine stems from two

main sources. The first is a commonsense assumption

about legislative practice. As a general rule, Congress

“does not … hide elephants in mouseholes,” meaning

that it does not grant transformative power in “vague

terms or ancillary provisions.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001). In major

questions cases, the issue is whether Congress gave

someone else power to resolve critical issues within the

traditional legislative wheelhouse. It is “unlikely”

that Congress would do so through “cryptic” phrasing,

Brown & Williamson, 529 U.S. at 160, or “implicit

delegation,” Gonzales, 546 U.S. at 268. Rather,

Congress “surely” would “do[] so expressly.” King, 576

U.S. at 486. Conversely, if Congress has not “sp[oken]

clearly,” UARG, 573 U.S. at 324, the Court assumes it

did not intend to hand over control.

The second, deeper rationale for the major questions

canon relates to constitutional avoidance. Where “a

serious doubt of constitutionality is raised” about a

federal statute, “this Court will first ascertain whether

a construction of the statute is fairly possible by which

the question may be avoided.” Crowell v. Benson, 285

U.S. 22, 62 (1932). Major questions cases raise such

concerns. The Constitution “vest[s]” “[a]ll legislative

Powers … in a Congress of the United States.” U.S.

Const. art. I, § 1. In light of that vesting clause and

the separation-of-powers principles it serves, Congress

may not delegate “powers which are strictly and

exclusively legislative.” Wayman v. Southard, 23 U.S.

(10 Wheat.) 1, 20 (1825) (Marshall, C.J.).

Of course, current doctrine does allow Congress to

“delegate power under broad general directives” so

long as it “lay[s] down … an intelligible principle” to

guide the delegee. Mistretta v. United States, 488 U.S.

361, 372 (1989). But even then, “the degree of agency

discretion that is acceptable varies according to the

scope of the power,” meaning Congress “must provide

substantial guidance” when it tries to give an agency

power to issue rules “that affect the entire national

economy.” Whitman, 531 U.S. at 475. And five

Justices have recently noted that serious questions

remain about whether delegations of true legislative

authority fit within our constitutional scheme. See,

e.g., Gundy v. United States, 139 S. Ct. 2116, 2131–43

(2019) (Gorsuch, J., joined by Roberts, C.J., and

Thomas, J., dissenting); id. at 2130–31 (Alito, J.,

concurring in the judgment) (expressing “support” for

reconsidering cases allowing “agencies to adopt

important rules pursuant to extraordinarily capacious

standards”); Paul v. United States, 140 S. Ct. 342, 342

(2019) (Kavanaugh, J., respecting denial of certiorari)

(referring to “important points” in Justice Gorsuch’s

Gundy opinion). Cf. Amy Coney Barrett, Suspension

and Delegation, 99 CORNELL L. REV. 251, 318 (2014)

(describing “notoriously lax” non-delegation test).

The major questions doctrine avoids those weighty

constitutional questions by hewing to a presumption

in favor of narrower delegations.

If a statute

authorizes agency action, but is ambiguous regarding

whether the agency is bounded in a material way or

assumes final say on momentous economic, social, or

political issues, the Court must—under the canon of

avoidance—adopt the former interpretation if “fairly

possible.” Crowell, 285 U.S. at 62. And that approach

is consistent with the traditional understanding of the

separation of powers. As this Court put it long ago,

there must be a line that “separates those important

subjects, which must be entirely regulated by the

legislature itself, from those of less interest, in which

a general provision may be made, and power given to

those who are to act ... to fill up the details.” Wayman,

23 U.S. (10 Wheat.) at 43; see also Ilan Wurman,

Nondelegation at the Founding, 130 Yale L.J. 1490,

1497 (2021) (“Overall, the picture the Founding-era

history paints is one of a nondelegation doctrine

whereby Congress could not delegate to the Executive

decisions over ‘important subjects’ ”).

Thus, just as the rule of lenity functions to protect

due process and the federalism clear-statement rule

works to preserve the Constitution’s vertical division

of powers, the major questions doctrine reflects a

horizontal “separation of powers-based presumption.”

U.S. Telecom, 855 F.3d at 417, 419 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc). It

serves the “constitutional rule that Congress may not

divest itself of its legislative power by transferring

that power to an executive agency.” Gundy, 139 S. Ct.

at 2141–42 (Gorsuch, J., dissenting).

B. The D.C. Circuit’s Construction Runs

Afoul of the Major Questions Doctrine.

The statutory dispute over the meaning of § 7411(d)

implicates the major questions doctrine. That is so

because the interpretation offered by the D.C. Circuit

gives the EPA unfettered control over not only the

nation’s power grid, but the entire economy. If that is

not a major question, nothing is. Yet not even the D.C.

Circuit claimed the statute compelled that sweeping

approach, only that the text was not “unambiguous”

enough to foreclose it. See JA.102–03, 107, 118. That

flips the presumption of the major questions doctrine.

The expansive interpretation is impermissible unless

the statute is clear. Accordingly, even if the D.C.

Circuit’s reading were otherwise permissible—which

it is not, infra Part II—that is still not enough.

1. To recap, this is the interpretation the EPA first

adopted and then abandoned, and the court below held

was within the agency’s grasp: Section 7411(d) allows

the EPA to set guidelines tethered to emission limits

that cannot actually be achieved by any given existing

source but are instead derived from a “system” that

transcends that source and requires actions beyond its

boundaries. JA.108–09. What that means is the EPA

can effectively impose any measures it wants to reduce

greenhouse gas emissions. Whatever policies it comes

up with are the “best system” for emission reduction,

and the resulting reductions can be baked into binding

EPA guidelines that states must implement.

Unpacking the statutory text as glossed by the D.C.

Circuit, the EPA must prescribe regulations under

which the states establish “standards of performance

for any existing source.” 42 U.S.C. § 7411(d). But

according to the panel, the preposition “for” does not

imply that the standards must apply “ ‘at’ and ‘to’ ” the

source; to the contrary, “[e]missions trading” can be “a

way ‘for’ a source to meet a standard.” JA.107. The

standards, in turn, must be based on “the degree of

emission

limitation

achievable

through

the

application of the best system of emission reduction

which ... the [EPA] determines has been adequately

demonstrated.” 42 U.S.C. § 7411(a)(1). But again, the

lower court reads “best system” as any plan to reduce

emissions, even one targeting “the source category” as

a whole (e.g., power plants) or “emissions” generally

(e.g., greenhouse gases), rather than a given existing

source. JA.115.

In practice, what this means is that the lower court’s

interpretation authorizes the EPA to develop any “best

system” it wants to reduce emissions, whether on an

industry-wide or even a national scale. That system

need not be tied in any real way to the source being

regulated; indeed, the “system” could simply be to shut

down the source, force it to transform into something

else, or compel it to subsidize competitors. The EPA

would then calculate the emission reductions flowing

from that “system,” and direct states to translate them

into standards of performance for the existing sources

(whether they are achievable by those sources or not).

While not mandating the EPA’s “best system” directly,

this scheme would effectively force states to adopt any

policy measures the agency wanted.

If that interpretation is right, there is no real limit

to how the EPA could regulate the power industry (just

to start). The agency could declare a cap-and-trade

regime the “best system” for emission reduction, and

thereby effectively compel states to adopt such a

framework in order to set performance standards. The

agency could announce that the “best system” for gasfired plants is to reduce their operations to two hours

per day, adopting guidelines based on the emission

reductions such a mandate would effectuate. Or the

agency could cancel coal entirely, deeming that the

“best system” and forcing states to match the emission

reductions that flow from replacing this energy source

with new or subsidized wind farms.

These are not just hypotheticals. Whatever the

EPA’s future plans may hold, the way the agency used

the expansive understanding of § 7411(d) in the CPP

is a powerful illustration of its “limit[less]” scope.

JA.108. The CPP’s “best system” would have forced

disfavored sources to scale back production, subsidize

lesser-emitting plants, or close shop entirely. In other

words, it would have wrought massive changes in one

of the most important sectors of the economy. See

JA.606–07, 771–72. No wonder friends and foes alike

noted its breathtaking significance. It was “the

biggest, most important step we’ve ever taken to

combat climate change” according to President

Obama, Joby Warrick, White House Set to Adopt

Sweeping Curbs on Carbon Pollution, WASH. POST

(Aug. 1, 2015), and the cause of impending “double

digit increases in wholesale electricity costs” according

to the National Mining Association, National Mining

Association, EPA’s Clean Power Plan: An Economic

Impact Analysis, at 4 (2015).

Nor is the practical significance of this statutory

dispute limited to the energy industry. Rather, the

lower court’s interpretation gives the EPA near-carteblanche authority to mandate a comprehensive

national response to climate change, “one of the most

hotly debated issues of the day,” Nat’l Rev., Inc. v.

Mann, 140 S. Ct. 344, 347 (2019) (Alito, J., dissenting

from the denial of certiorari). After all, power plants

are far from the only “stationary source” of greenhouse

gases; every building that emits the gases, including

residential homes and run-of-the-mill commercial

facilities, qualifies as a “source” subject to conceivable

regulation under § 7411(d).

Consider, then, what the D.C. Circuit’s reading of

the Act would allow the EPA to do to other parts of the

economy. Factories emit carbon dioxide; the agency

could conclude that the “best system” for reducing

those emissions is to drastically limit manufacturing.

Our homes emit greenhouse gases when we heat or

cool them; the EPA could determine that the “best

system” for reduction of those emissions would be to

prohibit gas hookups to residences or “shift” heating

from gas furnaces to solar-powered units. Gas stations

also emit; the agency could announce that the “best

system” to deal with that problem is to impose a gas

tax, the proceeds of which are used to subsidize electric

cars. These may sound like fanciful hypotheticals (for

now), but so was the prospect that the CDC would

“mandate free grocery delivery to the homes of the

sick,” or compel “telecommunications companies to

provide free high-speed Internet service to facilitate

remote work.” Ala. Ass’n, 141 S. Ct. at 2489. These

examples illustrate the untenable breadth of the D.C.

Circuit’s theory, and that breadth dooms it.

In short, if the EPA can adopt any “common plan” to

reduce emissions, nothing constrains its authority to

cap economic activity, demand that certain operations

close down, mandate carbon taxes or cap-and-trade

regimes, or take any number of other courses of action

to reduce greenhouse gas emissions systemically on a

national basis. If the agency is not limited to sourcelevel and source-achievable systems, the next Clean

Power Plan could be the “Green New Deal”—complete

with emissions standards predicated on eco-friendly

home-thermostat mandates, solar panel installation,

or mandatory composting. And all without the need

for any vote by elected representatives in Congress.

These are clearly “decisions of vast ‘economic and

political significance,’ ” and the Court should therefore

expect that Congress “speak clearly” before construing

the Clean Air Act as handing those powers to the EPA.

UARG, 573 U.S. at 324. As in Alabama Association,

the “sheer scope” of the EPA’s supposed authority is

reason enough to reject it. 141 S. Ct. at 2489.

2. The major questions doctrine is especially apt in

this case, because—much as in Brown & Williamson—

“Congress considered and rejected bills” calling for

even less-far-reaching schemes. 529 U.S. at 144.

For example, Congress did not enact the American

Clean Energy and Security Act, H.R. 2454, 111th

Cong. (2009), which would have created a cap-andtrade regime to limit greenhouse gases and imposed

renewable energy mandates on retail electricity

providers. Congress likewise failed to pass the Save

Our Climate Act, H.R. 3242, 112th Cong. (2011), which

would have imposed an excise tax based on the amount

of carbon dioxide produced by burning fossil fuels. Nor

did Congress adopt the American Renewable Energy

and Efficiency Act, H.R. 5301, 113th Cong. (2014),

which sought to cut emissions by imposing a complex

renewable energy credit scheme on retail electricity

suppliers. See JA.221 n.19 (Walker, J., dissenting).

No matter: Per the decision below, the EPA can do all

of this and more—unilaterally.

That historical evidence proves that at least one of

the two theoretical grounds for the major questions

doctrine is at play here. Perhaps Congress’s rejection

of these bills means they do not command legislative

support, bolstering the presumption that Congress did

not intend to delegate the matter to the EPA. Accord

S.J. Res. 24, 114th Cong. (2015) (disapproving of CPP).

Or perhaps Congress did not enact these bills because

they are politically toxic, and prefers to sit back and

let an agency impose these policies by fiat. Cf. Gundy,

139 S. Ct. at 2135 (Gorsuch, J., dissenting) (noting

that legislators often “face rational incentives to pass

problems to the executive branch”). The latter is, of

course, exactly why the non-delegation doctrine is so

important and in need of protection.

3. The D.C. Circuit tried to dodge the major

questions doctrine by minimizing its scope in general

and the significance of the court’s interpretation of

§ 7411 in particular. Neither maneuver works.

First, the court claimed the doctrine does not apply

because the EPA has authority to regulate greenhouse

gases as “air pollutants” under the Clean Air Act, and

had to address them once it found that they “pose[] [a

threat] to human health and welfare.” JA137–38.

Because “each critical element of the Agency’s

regulatory authority on this very subject has long been

recognized,” the major questions canon supposedly did

not apply. JA.136. The court distinguished this

Court’s precedents by observing that they involved

only “whether the agency had authority to regulate” or

“whom the EPA was attempting to regulate,” not how.

JA.138, 140 (emphasis added).

But there is no principled distinction between

whether and whom, on the one hand, and how on the

other. To the contrary, it is precisely because the EPA

does have authority over all greenhouse-gas sources

that “how” becomes the critical constraint on agency

power. All the justifications for the major questions

doctrine apply just as forcefully to this inquiry.

Nor has this Court applied the doctrine as inflexibly

as the panel suggested. In UARG, there was no doubt

the EPA had authority over “any air pollutant” and

“the Act require[d] permits for major emitters.” 573

U.S. at 316. Yet the Court still reasoned that Congress

must “speak [more] clearly if it wishes to assign to an

agency decisions of vast ‘economic and political

significance.’ ” Id. at 323–24. In King, Congress had

expressly empowered Treasury to adopt regulations

for health-insurance subsidies, 26 U.S.C. § 36B(h)(1),

yet the Court nonetheless held that Congress would

not have implicitly “assign[ed]” to the agency the

specific question at hand, bearing on “billions of

dollars” of subsidies and “affecting the price of health

insurance for millions of people.” 576 U.S. at 485–86.

And in Alabama Association, the CDC’s power to adopt

some “measures … preventing the interstate spread of

disease” did not empower it “to take whatever

measures it deems necessary.” 141 S. Ct. at 2488.

That the agency has some power relating to the subject

matter is only the beginning of the story.

So too here. The EPA surely has many significant

roles to play in protecting the environment in general

and regulating carbon emissions in particular. Still,

Congress would not have silently given the agency the

power to so radically restructure American life in

doing so. The source-specific reading embraced in the

ACE Rule respects that need for a limiting principle,

but the D.C. Circuit’s interpretation flouts it.

Second, the D.C. Circuit tried to downplay the

significance of its interpretation by citing supposed

limits on the EPA’s power. Specifically, the EPA must

“take into account such factors as available technology

and the cost of compliance.” JA.139 (citing 42 U.S.C.

§ 7411(a)(1)). But these supposed constraints are

illusory for a host of reasons.

To start, it takes considerable chutzpah for the D.C.

Circuit to suggest that taking “available technology”

into account can serve as a brake on the EPA’s power.

In this very case, that court held that the “best system”

under § 7411(d) need not be limited to technology that

can be implemented at and applied to existing sources.

See JA.120 (contrasting § 7411(d) with 42 U.S.C.

§ 7651f(b)(2), which refers to “taking into account

available technology”).

Cost fares no better as a limiting principle. Per the

EPA itself, the CPP was projected to “cost billions of

dollars and eliminate thousands of jobs.” JA.226

(Walker, J., dissenting). Those massive figures were

neither a deterrent to the agency nor a successful basis

for judicial review. In fact, the panel scoffed at the

billion-dollar cost, calling it “not atypical for Clean Air

Act rulemakings.” JA.149.

The D.C. Circuit’s attempt to rely on technology and

cost as limiting principles—like its reliance on the

EPA’s duty to consider “health,” “environmental

impacts,” and “energy requirements,” JA.139—also

suffers from a more fundamental flaw. These are

competing factors that must be balanced. And when

an agency engages in “value-laden decisionmaking

and the weighing of incommensurables under

conditions of uncertainty,” courts are reluctant to

engage in “second-guessing” of its “weighing of risks

and benefits.” Dep’t of Com. v. New York, 139 S. Ct.

2551, 2571 (2019). Under the D.C. Circuit’s approach,

then, the EPA could get away with virtually anything

it wants to do as part of its control over our emissionsbased economy. It is hard to imagine a court vacating

a regulation on the ground that its compliance costs

outweigh the dangers of climate change, particularly

when many believe the latter portends “catastrophic,

civilization-ending consequences.” Al Gore, Opinion,

The Climate Crisis Is the Battle of Our Time, and We

Can Win, N.Y. TIMES (Sept. 20, 2019).

Third, casting a true red herring, the D.C. Circuit

reasoned that, “[o]nce the EPA identifies a best system

that meets [the statute’s requirements] and calculates

the degree of emission limitation it allows,” states may

“set their own standards of performance for their

existing pollution sources.” JA.143; see also id. (noting

that states have “discretion in achieving” the EPA’s

“emission limitations”). The court apparently thought

that, because of that limited state role in translating

the EPA’s guidelines into standards of performance for

particular sources, the statutory dispute here does not

“entail[] resolution of a major question.” JA.144.

That is disingenuous. It is true that, after the EPA

adopts “emission guideline[s] that reflect[] the ... best

system of emission reduction,” 40 C.F.R. § 60.22, it is

the states that set standards of performance based on

those reduction figures, 42 U.S.C. § 7411(d)(1); see also

id. § 7411(d)(2) (authorizing the EPA to impose a plan

if a state fails to do so). But the fact that EPA policies

are effectuated through state-adopted standards does

not minimize the significance of the agency’s power.

The EPA-selected “best system” dictates the degree of

reductions the state must satisfy; those measures are

baked in. That is why no one disputes, for example,

that the performance rates for coal and gas plants

under the CPP were so stringent that, as a practical

matter, they could only be satisfied through reducing

production, subsidizing renewable energy in exchange

for credits, or shutting down. JA.771–72. Given how

they could force states to transform their grids, calling

these mere “guidelines” is a misnomer. In effect, they

are mandates.

Last (and least), the D.C. Circuit highlighted selfimposed limits on the EPA’s power. According to the

court, the EPA “tied its own hands” by requiring that

the best system “reduce emissions” rather than

“captur[e]” them after release, and (in the final rule,

as opposed to the proposal) by “target[ing] supply-side

activities” in lieu of seeking to influence consumer

demand. JA.143 n.9; see also JA.327 (noting that final

rule omitted proposed fourth building block targeting

demand-side). In a similar vein, respondents argued

in opposing certiorari that the D.C. Circuit’s decision

does not mandate the CPP’s broad reading of the

statute, but merely makes it available to the EPA.

SG.BIO.19; States.BIO.23; Power.BIO.15.

To all of this, the response is the same: So what?

Congress must “speak clearly if it wishes to assign to

an agency decisions of vast ‘economic and political

significance.’ ” UARG, 573 U.S. at 324. Whether the

agency has (yet) chosen to press the limits of its

supposed power is beside the point; what matters is

whether Congress clearly conferred that authority in

the first place. Just as an agency cannot “cure an

unconstitutionally standardless delegation of power

by declining to exercise some of that power,” Whitman,

531 U.S. at 473, it cannot evade the major questions

doctrine by promising to decide major questions

responsibly. And that is especially true here, where

the agency has studiously declined to say just what it

plans to do with its enormous powers—other than to

ominously suggest that it “looks to craft” even more

“aggressive rule[s] to curb climate pollution from the

power sector.” Maxine Joselow & Niina H. Farah, Will

the Supreme Court Take on EPA’s Climate Rule?, E&E

News (Aug. 10, 2021); see also The White House,

Executive Order on Tackling the Climate Crisis at

Home and Abroad (Jan. 27, 2021) (proclaiming that

the world faces “a profound climate crisis,” with only a

“narrow moment to pursue action at home and abroad

in order to avoid the most catastrophic impacts”).

The D.C. Circuit empowered the EPA not only to

tweak the operations of existing emission sources, but

to radically restructure the country’s power supply—

and American life more generally. But in the absence

of a clear delegation, critical questions about how to

regulate greenhouse gases on a systemic, national

level must be returned for decisionmaking to where

they constitutionally reside: the U.S. Congress.

II. TEXT, STRUCTURE, AND HISTORY FORECLOSE THE

D.C. CIRCUIT’S INTERPRETATION.

Major questions aside, § 7411 cannot bear the D.C.

Circuit’s boundless interpretation. Courts exhaust all

“traditional tools” of statutory construction before

concluding that ambiguity exists. Chevron, 467 U.S.

at 843 n.9. Even on its face, the text of the statute here

makes clear in multiple ways that the standards of

performance for existing sources must be applicable to

and achievable by such a source, not notional targets

that are reverse-engineered from a bureaucrat’s

system-wide rejiggering of an industry. The Clean Air

Act’s structure and history drive that conclusion home.

For this reason too, this Court must reverse.

A. The Statutory Text Requires the EPA to

Base Its Standards on Limits Applicable

to and Achievable by Existing Sources.

Whether read in isolation or with the aid of

statutory definitions, nothing about § 7411(d) confers

extraordinary authority on the EPA to restructure

every carbon-emitting industry in the country. To the

contrary, the statute presupposes that the standards

of performance for each existing source will be targets

that each source itself can actually hope to “perform”

(while continuing to “exist”).

1. Starting with the text of § 7411(d), four features

showcase the source-specific focus and design of the

statutory scheme.

First, the text requires performance standards “for

any existing source,” in the singular. That language

describes standards that operate at the level of an

individual source. Had Congress wanted standards to

operate across multiple sources or entire categories of

sources, it could have said that. Indeed, Congress

could have used the phrase “category of sources,”

which it deployed elsewhere in § 7411, to show that

standards should be derived from, applied to, and

achievable by the category of sources in the aggregate.

See 42 U.S.C. § 7411(b)(1), (f)(1), (f)(2)(C); cf. Romag

Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492, 1495

(2020) (refusing to “read into statutes words that

aren’t there,” especially “when Congress ... included

the term in question elsewhere in the very same

statutory provision”).

Second, Congress also expressly provided that the

standards are “for” the “existing source”—not “for” the

“owner or operator” of the source, which is a separate

defined term. See 42 U.S.C. § 7411(a)(5) (defining

“owner or operator” as “any person who owns, leases,

operates, controls, or supervises a stationary source”).

Had Congress wanted to authorize generation shifting

or emission-credit trading, it would have been more

natural to regulate owners or operators (who can

comply by buying credits or building new plants), as

opposed to sources (which are physical structures).

Buildings, unlike their proprietors, are not in the habit

of investing in wind farms or trading “credits” through

commercial transactions. Indeed, the EPA confessed

to this misalignment of terms, when it admitted in the

CPP that its guidelines were based on systems that

must be “implemented—‘applied’— … as a practical

matter, by actions taken by the owners or operators.”

JA.543 (brackets omitted); see also JA.594–95

(explaining that source “owner/operator” can “invest”

in renewable sources or “purchase” the “CO2-reducing”

credits to comply with the standards). That is a poor

fit with the statutory language.

Third, § 7411(d) refers to an “existing source.” That

terminology presupposes that the source will continue

to exist and operate, and thus is inconsistent with an

interpretation of the scheme that allows the agency to

effectively direct the closure of the source. Devising a

standard based on shifting the source’s generation

elsewhere, thereby rendering it obsolete, defeats the

purpose of separately regulating “existing” sources as

such. Indeed, it is implausible that Congress meant

for the EPA to exercise more rigorous control over

existing sources, which engender reliance interests,

than new ones. Yet that is the strange consequence of

the D.C. Circuit’s construction. See JA.122 (reasoning

that new sources can be regulated through technology

mandates but EPA maintains “wider range of ways to

reduce emissions” from “existing sources”); infra at 46.

Finally, in a similar vein, Congress used the phrase

“standard of performance,” which implies that the

existing source can, in fact, “perform” to the standard.

But no such performance at the source-level is needed

or even contemplated under the D.C. Circuit’s reading.

A source that diminishes its capacity or shuts down is

not “performing” anything. Nor is an existing source

“performing” to a standard, in any ordinary sense of

the word, when its owner invests in renewable energy

to acquire rate credits. So here, too, § 7411(d)’s scope

is properly read as limited to measures “perform[able]”

by a source, on its own terms and within its own fenceline. To be sure, “standard of performance” is itself a

defined term, as discussed below, but the term itself

retains meaning. See Solid Waste Agency, 531 U.S. at

171–72 (although defined by the statute, “navigable

waters” retains meaning).

2. Digging deeper, the statutory definitions of the

various phrases in § 7411(d) confirm that the EPA’s

authority is limited to defining emissions standards

achievable by a given source through modifications to

that source’s own technology or operations.

To start, take the statutory definition of “source”

and insert that into the operative provision, § 7411(d).

That yields the following: The EPA must prescribe

regulations to establish a “standard[] of performance

for any existing [building, structure, facility, or

installation].” 42 U.S.C. § 7411(a)(2), (3), (6), (d). That

only underscores the individualized nature of what is

being regulated: the unitary source. The standard of

performance is not “for” an industry, or a category of

buildings, or a pollutant, or even, as noted above, “for”

owners and operators. It is “for” an existing “building,

structure, facility, or installation.” That indicates a

standard that can be applied to, and achieved by, any

particular structure or facility.

And that indication is bolstered by the definition of

“standard of performance,” even though it is the latter

definition upon which the D.C. Circuit heavily relied

for its open-ended account of the EPA’s authority. A

“standard of performance” is one “which reflects the

degree of emission limitation achievable through the

application of the best system of emission reduction.”

Id. § 7411(a)(1). Substituting in that defined term,

layered onto the above definition of “source,” the full

provision thus directs “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 for any building,

structure, facility, or installation.”

The definition of “standard of performance,” which

in isolation lacks a referent, fits into § 7411(d) like a

glove. With the full benefit of the defined phrases, the

statute makes clear that the “best system of emission

reduction”—the benchmark from which the EPA must

derive its guidelines—is “for” a given “building.” That

is, the standards of performance must reflect the best

system of emission reduction for any existing building,

based on what is “achievable” for that source. There is

no way to read this language as allowing guidelines

based on category-wide credit trading or generation

shifting, which are not the “best system” of emission

reduction “for” any “existing source” but are instead

higher-order policies that operate above the source

level and outside the source boundaries. Far from

burnishing the D.C. Circuit’s reading, the definitional

provisions destroy it.

3. The D.C. Circuit offered two textual grounds for

its contrary reading. Neither holds up.

a. The lower court’s key move was to assert that the

definition of “standard of performance”—which it

believed was “the root of the EPA’s authority”—was

not constrained by “the source-specific language” of

§ 7411(d). JA.106. From that premise, the court

concluded that the phrase “best system of emission

reduction” was so broad that it allowed a “standard of

performance” to be derived from a macro-analysis of

an entire industry, an aggregate national “system.”

JA.108–10. Thus, so long as the EPA considered “cost,

any nonair quality health and environmental impacts,

and energy requirements,” the D.C. Circuit believed

there were “no limits” on the “measures” the agency

could treat as the “best system” of emission reduction

under § 7411(a)(1). JA.108.

The problem is that reading a definitional provision

in isolation as a grant of authority makes no sense—

not as a general matter, and certainly not here. Again,

§ 7411(a)(1) defines a “standard of performance” as

one “which reflects the degree of emission limitation

achievable through the application of the best system

of emission reduction.” Looking at those words alone

raises more questions than answers: The degree of

emission reduction must be “achievable” by what? The

best system of emission reduction must be “appli[ed]”

to whom? Without a referent, these phrases have no

meaning. Cf. Weyerhaeuser Co. v. U.S. Fish & Wildlife

Serv., 139 S. Ct. 361, 368 (2018) (rejecting argument

that “statutory definition of critical habitat is complete

in itself,” because that definition “tells us what makes

habitat ‘critical,’ not what makes it ‘habitat’ ”).

As explained, plugging the statutory definition into

§ 7411(d) reveals the necessary referent: the “source.”

The degree of emission limitation that is baked into

the standard must be “achievable” by the source. The

best system of emission reduction must be “appli[ed]”

to the source. And those reductions are contemplated

“for” the source. Section 7411(d) focuses on the source

as the object of regulation, and § 7411(a)’s definitions

necessarily adopt that focus when they are imported

into that operative provision.

Even if the definition in the abstract could support

the D.C. Circuit’s reading, when a statutorily defined

term appears in the Clean Air Act’s “operative

provisions,” this Court has held that it must often be

“given” a “narrower, context-appropriate meaning.”

UARG, 573 U.S. at 316; see id. at 320 (defined term

“ ‘may take on distinct characters from association

with distinct statutory objects’ ”). And that approach

is “particularly” warranted if there is any “dissonance”

between “the ordinary meaning of a defined term” and

“the reach of the definition.” Bond v. United States,

572 U.S. 844, 861 (2014). That cautionary note applies

here, as there is no way to read the phrase “standard

of performance” for a source to include shutting down

that source or compelling it to subsidize others.

Even the EPA never maintained that § 7411(a)(1)

gives it freestanding power unbounded by § 7411(d)’s

source-specific language. To the contrary, the agency

acknowledged in the CPP that any “system” required

by its standards of performance “must be limited to

measures that can be implemented—‘applied’—by the

sources themselves.” JA.543 (brackets omitted); see

JA.737 (“When read in context, the phrase ‘system of

emission reduction’ ” requires that the systems be

“implementable by the sources themselves”). To

circumvent this problem, the EPA equated “the

sources themselves” with “actions taken by the owners

or operators of the sources,” JA.543, and reasoned that

even offsite activities or commercial investments by

owners can qualify as measures taken by the sources,

JA.729–30. As explained, all of that is indefensible in

its own right. See supra Part II.A.1. But at no point

did the agency go so far as the panel did, to dispense

with § 7411(d)’s “source-specific language” entirely.

b. When the D.C. Circuit finally got around to the

operative provision here, it seized on the word “for,”

asserting that “a system of emission reduction ‘for’ a

source just means that the system is … ‘concerning’

the source,” which would permit “a broader array” of

industry-wide measures, even if they are unachievable

by the source on its own. JA.117.

Given this preposition’s “numerous definitions,” the

meaning of “the word ‘for’ ” “cannot be determined in

isolation, but must be drawn from the context in which

it is used.’ ” Textron Lycoming Reciprocating Engine

Div., Avco Corp. v. Auto. Workers, 523 U.S. 653, 656–

57 (1998). Here, context makes clear that a “standard

of performance” “for” any “existing source” cannot be

one that the source cannot hope to satisfy. See supra

at 35. That would be like saying an educational plan

“for” a disabled student could be one that presumes the

student will drop out. Semantically possible, perhaps,

but at war with the context.

The D.C. Circuit’s preposition games become even

less persuasive when the rest of § 7411 is examined.

The panel contrasted the word “to,” which it conceded

“tend[s] to connote direct physical proximity or

contact” and thus offers the “critical” “physical on-site

connotation” it found absent from “for.” JA.117. Yet,

in fact, § 7411(d) uses the preposition “to” as well. It

directs the EPA to permit states, “in applying a

standard of performance to any particular source,” to

account for “the remaining useful life of the existing

source to which such standard applies.” 42 U.S.C.

§ 7411(d)(1) (emphases added). That presumes that

any standard will be “applie[d]” “to” a specific source.

Likewise, § 7411(d) applies only if “a standard of

performance ... would apply if such existing source

were a new source,” and new sources are governed by

performance standards “applicable to” those facilities.

Id. § 7411(d)(1), (a)(2) (emphasis added). Finally, the

very next subsection prohibits owners from operating

sources in violation of any standard “applicable to such

source.” Id. § 7411(e) (emphasis added). The panel,

however, never mentioned any of these phrases.

B. The Statutory Structure Confirms the

Limited Scope of the EPA’s Authority.

Context and structure confirm the plain reading of

§ 7411. Construing that provision to allow the EPA to

decide which type of sources live or die “would be

inconsistent with—in fact, would overthrow—the Act’s

structure and design.” UARG, 573 U.S. at 321.

1. For starters, § 7411 is bifurcated into two distinct

schemes—the primary one for new sources, and an

ancillary one for certain existing sources. Congress

was aware that existing sources implicate reliance

interests and therefore must be approached differently

from new sources. So, while § 7411(d)’s “cooperative

federalism” approach gives the states the first crack at

setting standards for existing sources, § 7411(b) cuts

them out of the picture when it comes to new ones.

Moreover, § 7411(d)(1) allows state plans to account

for “the remaining useful life of the existing source.”

And the EPA has long understood that in considering

“the cost of achieving” emissions reductions, reliance

interests make existing sources different. See State

Plans for the Control of Certain Pollutants From

Existing Facilities, 40 Fed. Reg. 53,340, 53,344 (Nov.

17, 1975) (explaining that cost considerations are

“inherently different” for existing sources, as “physical

limitations may make installation of particular control

systems impossible or unreasonably expensive”).

But this division makes sense only if the existing

sources continue to exist. Congress’s decision to single

out “existing” sources for distinct regulation—and

allow states to account for “the remaining useful life”

of each one—implies that Congress presupposed their

continued existence. It was authorizing the agency to

ensure that they would operate as efficiently as

practicable—not to shut them down if it saw fit.

Nothing in § 7411 suggests Congress wanted the

builder of a power plant to spend a fortune complying

with the EPA’s stringent standards for new sources,

only to see that plant shuttered when the agency later

decides to weigh the balance differently.

Had Congress intended to grant the EPA the

authority to restructure industries, ban sources, favor

others, and generally pick and choose which sources

would continue operating, there would have been no

reason to distinguish new from existing sources—all

would be subsumed by the agency’s far-reaching

authority to develop whatever “best system” it saw fit

for reducing emissions on a national level. The panel’s

interpretation therefore assumes that Congress not

only hid an elephant in a mousehole, it then unleashed

it to trample down the rest of the statutory scheme.

2. Moving beyond § 7411 to the Clean Air Act more

generally, Congress’s other statutory programs also

undermine any reading that would grant the EPA

power to institute industry-wide “systems” like capand-trade regimes. Congress did confer that authority

elsewhere—using very different language.

For instance, in Title IV, 42 U.S.C. §§ 7651–7651o,

and Title VI, 42 U.S.C. §§ 7671–7671q, of the Clean

Air Act, Congress specifically provided for the sort of

detailed, industry-wide systems that the CPP tried to

impose on power plants. Title IV (aimed at acid rain)

sets emission caps for new and existing power plants

(the same sources at issue here), and establishes a

trading program for credits. See Indianapolis Power

& Light Co. v. EPA, 58 F.3d 643, 644 (D.C. Cir. 1995).

Title VI directed the EPA to phase out certain ozonedepleting substances nationally. See Mexichem Fluor,

Inc. v. EPA, 866 F.3d 451, 454 (D.C. Cir. 2017).

The CPP invoked those programs (JA.772–81), but

they contrast rather than compare with § 7411, which

says nothing about cap-and-trade or phasing out any

energy source. The CPP’s reliance on § 7411(d) is thus

“especially questionable here, given that Congress has

used express language in other” parts of the Act to

grant the EPA the type of authority it believed it had

uncovered there. U.S. Forest Serv. v. Cowpasture

River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020).

3. The D.C. Circuit said not a word about these

structural inconsistencies with its interpretation of

§ 7411. Instead, it contrasted the phrase “best system

of emission reduction” with “more specific categories of

emission-reduction tools” in other provisions of the

Clean Air Act, like one that directs the EPA to require

“the ‘best available retrofit technology.’ ” JA.120. The

court inferred that § 7411(d) is broader.

That contrast is misplaced, as nobody contends that

§ 7411(d) limits the EPA to technological solutions. In

fact, even the ACE Rule recognized that standards

under § 7411(d) could include other “techniques” and

“practices,” such as “training” programs. JA.1755–56

& nn.61–62, JA.1822. The problem with the CPP was

not that it permitted an expansive set of “emissionreduction tools,” JA.120, but rather that these “tools”

embraced industry-wide regimes, offsite activities,

and commercial arrangements that were not

achievable by an existing source in any meaningful

sense. That scope is inconsistent with both the text

and the structure of the statutory provision.

C. The History of § 7411(d) Supports the

Narrower, Source-Specific Reading.

Finally, it is worth observing that the interpretation

proffered by the D.C. Circuit finds no support in the

EPA’s actual practices over the first 40 years of the

statute’s existence. To the contrary, before the CPP,

the EPA’s sparse invocations of § 7411(d) reflected the

intuitive, source-specific understanding. That is yet

another strike against the decision below, for “[w]hen

an agency claims to discover in a long-extant statute

an unheralded power to regulate ‘a significant portion

of the American economy,’ ” courts “typically greet its

announcement with a measure of skepticism.” UARG,

573 U.S. at 324; see also Ala. Ass’n, 141 S. Ct. at 2489

(rejecting CDC’s “claim of expansive authority” to

issue an eviction moratorium based in part on its

“unprecedented” nature).

1. From § 7411’s enactment in 1970 until 2015, “no

regulation premised on it ha[d] even begun to

approach the size or scope” of the CPP, Ala. Ass’n, 141

S. Ct. at 2489, much less the bestiary of unbounded

climate-change measures permitted by the novel

interpretation blessed below.

In the ACE Rule, the EPA identified six pre-CPP

rulemakings under § 7411(d), most of which date from

the Carter administration. JA.1756 & n.63. The first

set fluoride emissions guidelines for phosphate

fertilizer plants based on controls that could be

“install[ed] … in existing facilities”—namely, “spraycrossflow packed bed (SCPB) scrubbers.” Phosphate

Fertilizer Plants, Final Guideline Document

Availability, 42 Fed. Reg. 12,022, 12,022 (Mar. 1,

1977). The EPA followed that up with sulfuric acid

mist guidelines, likewise derived from “equipment”

that could be “installed” at the relevant sources.

Emission Guideline for Sulfuric Acid Mist, 42 Fed.

Reg. 55,796, 55,797 (Oct. 18, 1977). The agency’s third

§ 7411(d) rule similarly relied on technologies that

could “be purchased and installed” at kraft pulp mills,

also to reduce sulfur emissions—such as “evaporator

systems” or “straight recovery furnace systems.” Kraft

Pulp Mills; Final Guideline Document; Availability, 44

Fed. Reg. 29,828, 29,829 (May 22, 1979). The EPA

then issued fluoride emissions guidelines for

aluminum plants, also derived from “recommended

control technologies” that could be “applied as new

retrofits to existing plants,” including “dry scrubbers”

or “reduction cell hooding.” Primary Aluminum

Plants; Availability of Final Guideline Document, 45

Fed. Reg. 26,294, 26,294 (Apr. 17, 1980).

Section 7411(d) then lay dormant until 1996, when

the EPA dusted off this provision to issue emission

guidelines for municipal solid waste landfills based on

a “well-designed and well-operated gas collection

system” along with “a control device capable of

reducing” certain emissions “in the collected gas by 98

weight-percent.” Standards of Performance for New

Stationary Sources and Guidelines for Control of

Existing Sources: Municipal Solid Waste Landfills, 61

Fed. Reg. 9905, 9907 (Mar. 12, 1996). Last, the agency

in 2005 promulgated the Clean Air Mercury Rule,

which set mercury emissions guidelines for coal-fired

plants “based on control technology available in the

relevant timeframe.” Standards of Performance for

New and Existing Stationary Sources: Electric Utility

Steam Generating Units, 70 Fed. Reg. 28,606, 28,617

(May 18, 2005).

As these descriptions reflect, none of these six rules

imposed standards that were unachievable by an

existing source itself. JA.1758. Those decades of

consistent understanding are telling.

The EPA has also issued around 70 “standards of

performance” for new sources under § 7411(b)—which

uses the same “best system of emission reduction”

definition—and each one of them directly applied to

individual sources as well. See JA.1756–57. Indeed,

the CPP’s parallel regulation for new plants called a

generation-shifting scheme “inappropriate for new

sources.” 80 Fed. Reg. at 64,627. The absence of any

system-wide approach in the EPA’s many dozens of

“standards of performance” for new sources confirms

again that no such power was ever conferred.

2. Starting with the latter point, the D.C. Circuit

dismissed standards under § 7411(b) as “irrelevant”

on the theory that while source-based standards may

provide “the best systems for new sources,” the best

“systems for reducing emissions from existing power

plants” could involve “shift[ing] generation away from”

disfavored ones. JA.128. But that analysis turns

§ 7411 on its head: Congress sought to protect existing

sources from the more stringent requirements that

would apply to new constructions. See supra at 41–42.

Nor is there any reason why the “best system,” on the

D.C. Circuit’s sweeping understanding of that phrase

(which governs both new and existing sources), would

exclude a prohibition on building new sources. The

EPA’s refusal to take such action in a sphere where it

has more leeway is powerful reason to be skeptical of

its authority here. And its adoption of standards that

are more demanding for existing plants than new ones

is a surefire signal that something is off.

Turning to § 7411(d) itself, the D.C. Circuit invoked

three prior EPA actions that it believed supported its

expansive reading. One was the “Clean Power Plan”

itself, JA.129, which did rest on the broad reading—

but which this Court found so dubious as to stay

pending review. That is anti-precedent.

The two other instances were the Clean Air Mercury

Rule, and a Municipal Waste Combustors Rule that

drew on both § 7411(d) and the EPA’s wastemanagement authority under 42 U.S.C. § 7429 (and is

therefore not included in the list of exclusive § 7411(d)

rules above). See Standards of Performance for New

Stationary Sources and Emissions Guidelines for

Existing Sources: Municipal Waste Combustors, 60

Fed. Reg. 65,387 (Dec. 19, 1995). Neither adopted or

supports the lower court’s interpretation.

Both rules allowed states to use emissions-trading

in their compliance plans. JA.126. But neither

involved emission guidelines that were derived from

such programs. Rather, the agency based its analysis

on traditional source-focused controls, and merely

authorized states to meet those targets using a

“voluntary cap-and-trade program” if they preferred.

New Jersey v. EPA, 517 F.3d 574, 577 (D.C. Cir. 2008)

(mercury); see also Municipal Waste Combustors Rule,

60 Fed. Reg. at 65,390 (describing guidelines as “based

on maximum achievable control technology” and

noting they will require plants to “purchase and

install ... equipment”). Indeed, in the Clean Air

Mercury Rule, the EPA based its caps on the premise

that “the technology needed to achieve the chosen cap

level” would be “widely available” in time for

compliance. 70 Fed. Reg. at 28,620. The trading

regime for emission allowances served only to provide

flexibility to comply “with the least cost,” and states

were thus “not required” to create those programs. Id.

at 28,619. That presumably is why the agency there

acknowledged that even if § 7411 “prohibited an

emissions cap and allowance trading program,” the

“technologies on which EPA has based its cap

calculations are consistent with and permitted by” this

provision. Id. at 28,620 n.5. Accord JA.1758 n.65 (so

understanding the Clean Air Mercury Rule).

That is a far cry from the interpretation below,

under which the EPA can derive binding guidelines by

assuming targets that existing sources cannot achieve.

In other words, the problem is not allowing states to

engage in emissions-trading or the like; the problem is

effectively compelling them to do so by baking those

measures into the EPA guidelines as components of

the best system of emission reduction.

In any event, of course, “ ‘[p]ast practice does not, by

itself, create power.’ ” Medellín v. Texas, 552 U.S. 491,

532 (2008). And these two rules should be the last

candidates for some theory of “power through adverse

possession,” NLRB v. Noel Canning, 573 U.S. 513, 613

(2014) (Scalia, J., concurring in the judgment)—as one

appears never to have been subjected to judicial

review, and the other did not survive it. See id. at 613–

14 (explaining that such a theory would require “an

ambiguous text” and “a consistent and unchallenged

practice over a long period of time”); New Jersey, 517

F.3d at 583–84 (vacating Clean Air Mercury Rule on

other grounds). Indeed, the first time this theory of

agency authority was presented to this Court, the

Court stayed the agency’s action—history the decision

below left unmentioned. So even if the CPP were not

the first of its kind, it should be the last.

CONCLUSION

This Court should reverse the judgment below and

remand for reinstatement of the ACE Rule’s repeal of

the CPP.

DECEMBER 2021

Respectfully submitted,

YAAKOV M. ROTH

Counsel of Record

JEFFREY R. JOHNSON

J. BENJAMIN AGUIÑAGA

JONES DAY

JEFFERY D. UBERSAX

51 Louisiana Ave., NW

KUSHNER & HAMED CO., LPA Washington, D.C. 20001

(202) 879-3939

1375 E. Ninth St., Ste. 1930

yroth@jonesday.com

Cleveland, OH 44114

CHARLES T. WEHLAND

JONES DAY

77 W Wacker Dr.

Chicago, IL 60601

Counsel for Petitioner

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