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

Supreme Court briefDec 13, 2021

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Text

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

IN THE

Supreme Court of the United States

WEST VIRGINIA, ET AL.,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

THE NORTH AMERICAN COAL CORPORATION,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

WESTMORELAND MINING HOLDINGS LLC,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

NORTH DAKOTA,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

On Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

JOINT APPENDIX (VOLUME I OF IV)

(Pages 1–272)

LINDSAY S. SEE

ELIZABETH B. PRELOGAR

Solicitor General

Solicitor General

Counsel of Record

Counsel of Record

U.S. DEPARTMENT OF JUSTICE OFFICE OF THE W.V. ATT’Y GEN.

950 Pennsylvania Avenue, NW State Capitol Complex

Washington, DC 20530

Building 1, Room E-26

(202) 514-2217

Charleston, WV 25305

(304) 558-2021

supremectbriefs@usdoj.gov

lindsay.s.see@wvago.gov

Counsel for Federal

Respondents

Counsel for Petitioners

West Virginia, et al.

(additional counsel listed on inside cover)

PETITIONS FOR CERTIORARI FILED: APR. 29, 2021 (20-1530),

APR. 30, 2021 (20-1531), JUNE 18, 2021 (20-1778 & 20-1780)

CERTIORARI GRANTED: OCT. 29, 2021

(continued from front cover)

BETH S. BRINKMANN

Counsel of Record

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-5312

bbrinkmann@cov.com

Counsel for Power Company

Respondents

YAAKOV M. ROTH

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

yroth@jonesday.com

Counsel for Petitioner

North American Coal

Corporation

SEAN H. DONAHUE

Counsel of Record

ANDREW M. GROSSMAN

Counsel of Record

DONAHUE, GOLDBERG &

BAKER & HOSTETLER LLP

LITTLETON

1008 Pennsylvania Ave., SE

1050 Connecticut Ave., NW

Washington, DC 20003

Washington, DC 20036

(202) 277-7085

(202) 861-1697

sean@donahuegoldberg.com

agrossman@bakerlaw.com

Counsel for Non-Governmental Counsel for Petitioner

Organization & Trade

Westmoreland Mining

Association Respondents

Holdings LLC

BARBARA D. UNDERWOOD

PAUL M. SEBY

Special Assistant

Solicitor General

Attorney General

Counsel of Record

Counsel of Record

OFFICE OF THE ATT’Y GEN.

GREENBERG TRAURIG, LLP

28 Liberty Street

1144 15th Street, Suite 3300

New York, NY 10005

Denver, CO 80202

(212) 416-8016

barbara.underwood@ag.ny.gov (303) 572-6500

sebyp@gtlaw.com

Counsel for Respondents

Counsel for Petitioner State

New York, States and

of North Dakota

Municipalities

(additional counsel listed on next page)

(continued from inside cover)

ELBERT LIN

Counsel of Record

HUNTON ANDREWS KURTH LLP

951 E. Byrd Street, E. Tower

Richmond, VA 23219

(804) 788-7202

elin@huntonak.com

Counsel for Respondent

America’s Power

EMILY C. SCHILLING

Counsel of Record

HOLLAND & HART LLP

901 K Street NW, Suite 850

Washington, DC 20001

(202) 393-6500

ecschilling@hollandhart.com

Counsel for Respondent Basin

Electric Power Cooperative

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER HAMILTON

SANDERS LLP

227 W. Monroe St., Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

Counsel for Respondent

National Mining Association

i

TABLE OF CONTENTS

Page

VOLUME I

Docket Entries,

American Lung Association, et al. v.

EPA, et al., No. 19-1140 (D.C. Cir.) ................... 1

Opinion of the United States Court of Appeals

for the District of Columbia Circuit

(Jan. 19, 2021) .................................................. 53

Respondents’ Motion for a Partial Stay of

Issuance of the Mandate (Feb. 12, 2021) ....... 256

Order of the United States Court of Appeals

for the District of Columbia Circuit

Granting the Motion for a Partial Stay of

Issuance of the Mandate (Feb. 22, 2021) ....... 270

Formal Partial Mandate of the United States

Court of Appeals for the District of

Columbia Circuit (Mar. 5, 2021) .................... 272

VOLUME II

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units,

80 Fed. Reg. 64,662 (Oct. 23, 2015) ............... 273

VOLUME III

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg.

64,662 (Oct. 23, 2015) (cont.) ......................... 867

ii

TABLE OF CONTENTS

(continued)

Page

VOLUME IV

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg.

64,662 (Oct. 23, 2015) (cont.) ....................... 1445

EPA, Regulatory Impact Analysis for the

Repeal of the Clean Power Plan, and

the Emission Guidelines for Greenhouse

Gas Emissions from Existing Electric

Utility Generating Units (June 2019)

(Excerpted).................................................... 1669

Repeal of the Clean Power Plan; Emission

Guidelines for Greenhouse Gas

Emissions From Existing Electric Utility

Generating Units; Revisions to Emission

Guidelines Implementing Regulations,

84 Fed. Reg. 32,520 (July 8, 2019) ............... 1725

1

General Docket

United States Court of Appeals

for District of Columbia Circuit

Court of Appeals Docket #: 19-1140

American Lung Association, et al v. EPA, et al

Appeal From: Environmental Protection Agency

Fee Status: Fee Paid

Docketed: 07/08/2019

Termed: 01/19/2021

***

Current Cases:

Consolidation

Lead

Member

Start

19-1140

19-1165

08/16/2019

19-1140

19-1166

08/14/2019

19-1140

19-1173

08/30/2019

19-1140

19-1175

09/06/2019

19-1140

19-1176

09/06/2019

19-1140

19-1177

09/06/2019

19-1140

19-1179

09/06/2019

19-1140

19-1185

09/06/2019

19-1140

19-1186

09/09/2019

19-1140

19-1187

09/09/2019

19-1140

19-1188

09/09/2019

***

End

2

Date Filed

Docket Text

07/08/2019

PETITION FOR REVIEW CASE

docketed.

[19-1140]

[Entered:

07/09/2019 10:54 AM]

***

08/01/2019

MOTION [1800270] for leave to

intervene

[Disclosure

Listing:

Attached] filed by National Rural

Electric

Cooperative

Association

[Service Date: 08/01/2019 ] [191140]—[MODIFIED PARTY FILER—

Edited

08/02/2019

by

LMC]

(Lorenzen,

Thomas)

[Entered:

08/01/2019 02:24 PM]

***

08/06/2019

MOTION [1800958] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Chamber of

Commerce of the United States

[Service Date: 08/06/2019 ] [191140]—-[MODIFIED

PARTY

FILER—Edited 08/07/2019 by LMC]

(Beckner, C.) [Entered: 08/06/2019

04:15 PM]

08/07/2019

MOTION [1801004] for leave to

intervene

[Disclosure

Listing:

Attached] filed by National Mining

Association

[Service

Date:

08/07/2019 ] [19-1140]—[MODIFIED

PARTY FILER—Edited 08/07/2019 by

3

LMC] (McGuffey, Carroll) [Entered:

08/07/2019 10:01 AM]

08/07/2019

MOTION [1801050] for leave to

intervene

[Disclosure

Listing:

Attached] filed by America’s Power

[Service Date: 08/07/2019 ] [191140]—[MODIFIED PARTY FILER—

Edited 08/07/2019 by LMC] (Wood,

Allison) [Entered: 08/07/2019 11:47

AM]

08/07/2019

MOTION [1801137] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Appalachian Power

Company, AEP Generating Company,

AEP Generation Resources Inc.,

Indiana Michigan Power Company,

Kentucky Power Company, Public

Service Company of Oklahoma,

Southwestern

Electric

Power

Company, and Wheeling Power

Company [Service Date: 08/07/2019 ]

[19-1140]—[MODIFIED

PARTY

FILER—Edited 08/08/2019 by LMC]

(Smith, Amy) [Entered: 08/07/2019

03:49 PM]

08/07/2019

MOTION [1801180] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Westmoreland

Mining Holdings LLC [Service Date:

08/07/2019 ] [19-1140]—[MODIFIED

PARTY FILER—Edited 08/08/2019 by

4

LMC] (Cheren, Robert)

08/07/2019 09:56 PM]

[Entered:

08/07/2019

MOTION [1801182] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Murray Energy

Corporation

[Service

Date:

08/07/2019 ] [19-1140]—[MODIFIED

PARTY FILER—Edited 08/08/2019 by

LMC] (Lazzaretti, John) [Entered:

08/07/2019 10:33 PM]

08/14/2019

CLERK’S ORDER [1802141] filed

consolidating

cases

19-1166

(Consolidation started 08/14/2019)

with 19-1140; directing party to file in

19-1166

initial

submissions:

PETITIONER docketing statement

due

09/13/2019.

PETITIONER

statement of issues due 09/13/2019

[19-1140,

19-1166]

[Entered:

08/14/2019 03:03 PM]

08/16/2019

CLERK’S ORDER [1802500] filed

consolidating

cases

19-1165

(Consolidation started 08/16/2019)

with 19-1140; directing party to file in

19-1165

initial

submissions:

PETITIONER docketing statement

due

09/16/2019.

PETITIONER

statement of issues due 09/16/2019

[19-1140, 19-1165, 19-1166] [Entered:

08/16/2019 11:29 AM]

***

5

08/30/2019

CLERK’S ORDER [1804335] filed

consolidating

cases

19-1173

(Consolidation started 08/30/2019)

with 19-1140; directing party to file in

19-1173

initial

submissions:

PETITIONER docketing statement

due

09/30/2019.

PETITIONER

statement of issues due 09/30/2019

[19-1140, 19-1165, 19-1166, 19-1173]

[Entered: 08/30/2019 10:14 AM]

09/06/2019

CLERK’S ORDER [1805317] filed

consolidating

cases

19-1179

(Consolidation started 09/06/2019)

with 19-1140 [19-1140, 19-1165, 191166, 19-1173, 19-1179] [Entered:

09/06/2019 11:24 AM]

09/06/2019

CLERK’S ORDER [1805339] filed

consolidating

cases

19-1176

(Consolidation started 09/06/2019)

with 19-1140 [19-1140, 19-1165, 191166, 19-1173, 19-1176, 19-1179]

[Entered: 09/06/2019 12:17 PM]

09/06/2019

CLERK’S ORDER [1805359] filed

consolidating cases 19-1177, 19-1175,

19-1185

(Consolidation

started

09/06/2019) with 19-1140 [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185]

[Entered: 09/06/2019 12:52 PM]

09/06/2019

MOTION [1805447] for leave to

intervene [Disclosure Listing: Not

6

Applicable to this Party] filed by State

of North Dakota [Service Date:

09/06/2019 ] [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185]—[Edited

09/09/2019 by AY] (Seby, Paul)

[Entered: 09/06/2019 05:38 PM]

***

09/09/2019

CLERK’S ORDER [1805671] filed

consolidating cases 19-1186, 19-1187

(Consolidation started 09/09/2019)

with 19-1140 [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187] [Entered: 09/09/2019 03:10 PM]

***

09/09/2019

CLERK’S ORDER [1805728] filed

consolidating

cases

19-1188

(Consolidation started 09/09/2019)

with 19-1140, et al. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187,

19-1188]

[Entered:

09/09/2019 05:27 PM]

***

09/10/2019

MOTION [1805769] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Indiana Energy

Association and Indiana Utility Group

[Service Date: 09/10/2019 ] [19-1140,

7

19-1166] (Flannery, David) [Entered:

09/10/2019 09:48 AM]

***

09/11/2019

CLERK’S ORDER [1806013] filed

consolidating

cases

19-1189

(Consolidation started 09/11/2019)

with 19-1140, et al. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188, 19-1189] [Entered:

09/11/2019 12:16 PM]

***

09/11/2019

CLERK’S ORDER [1806066] filed

granting motions for leave to

intervene [1801182-2] [1801180-2]

[1801137-2] [1801050-2] [1801004-2]

[1800958-2] [1800270-2]. [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188, 19-1189]

[Entered: 09/11/2019 02:52 PM]

09/12/2019

JOINT MOTION [1806337] for leave

to intervene [Disclosure Listing: Not

Applicable to this Party] filed by State

of Wyoming, State of Utah, State of

Texas, State of South Dakota, State of

South Carolina, State of Oklahoma,

State of Ohio, State of Nebraska,

State of Montana, State of Missouri,

Mississippi

Public

Service

Commission, Phil Bryant, State of

8

Louisiana, State of Kentucky, State of

Kansas, State of Indiana, State of

Georgia, State of Arkansas, State of

Alaska, State of Alabama and State of

West

Virginia

[Service

Date:

09/12/2019 ] [19-1140, 19-1165]—

[MODIFIED PARTY FILER—Edited

09/24/2019 by LMC] (See, Lindsay)

[Entered: 09/12/2019 06:29 PM]

***

09/17/2019

MOTION [1806910] for leave to

intervene

[Disclosure

Listing:

Attached] filed by International

Brotherhood of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers

and Helpers, AFL-CIO in 19-1173

[Service Date: 09/17/2019 ] [19-1173,

19-1140, 19-1165, 19-1166, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188, 19-1189]—

[Edited 09/18/2019 by AH] (Trisko,

Eugene) [Entered: 09/17/2019 01:22

PM]

09/17/2019

MOTION [1806911] for leave to

intervene

[Disclosure

Listing:

Attached] filed by International

Brotherhood of Electrical Workers,

AFL-CIO in 19-1173 [Service Date:

09/17/2019 ] [19-1173, 19-1140, 191165, 19-1166, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188, 19-1189]—[Edited

9

09/18/2019 by AH] (Trisko, Eugene)

[Entered: 09/17/2019 01:27 PM]

09/17/2019

MOTION [1806915] for leave to

intervene

[Disclosure

Listing:

Attached] filed by United Mine

Workers of America, AFL-CIO in 191173 [Service Date: 09/17/2019 ] [191173, 19-1140, 19-1165, 19-1166, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188, 191189]—[Edited 09/18/2019 by AH]

(Trisko, Eugene) [Entered: 09/17/2019

01:35 PM]

***

10/04/2019

MOTION [1809451] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Basin Electric

Power Cooperative in 19-1140

[Service Date: 10/04/2019 ] [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19- 1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188, 19-1189]—

[MODIFIED PARTY FILER—Edited

10/04/2019

by

LMC]

(Gomez,

Christina) [Entered: 10/04/2019 01:24

PM]

***

10/04/2019

MOTION [1809530] for leave to

intervene [Disclosure Listing: Not

Applicable to this Party] filed by State

of Nevada [Service Date: 10/04/2019 ]

10

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]—

[MODIFIED PARTY FILER—Edited

10/07/2019 by LMC] (Stern, Heidi)

[Entered: 10/04/2019 07:19 PM]

***

10/07/2019

MOTION [1809705] for leave to

intervene

[Disclosure

Listing:

Previously Filed] filed by Sierra Club,

et al. [Service Date: 10/07/2019 ] [191175, 19-1176, 19-1179, 19-1185]—

[Edited 10/17/2019 by JAD] (Restrepo,

Andres) [Entered: 10/07/2019 03:00

PM]

***

10/07/2019

MOTION [1809803] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Georgia Power

Company [Service Date: 10/07/2019 ]

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188,

19-1189]—[MODIFIED

PARTY

FILER—Edited 10/08/2019 by LMC]

(Campbell,

Margaret)

[Entered:

10/07/2019 05:22 PM]

***

10/07/2019

MOTION [1809825] for leave to

intervene

[Disclosure

Listing:

Attached] filed by Nevada Gold Mines

11

LLC and Newmont Nevada Energy

Investment LLC [Service Date:

10/07/2019 ] [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187,

19-1188,

19-1189]—

[MODIFIED PARTY FILER—Edited

10/08/2019 by LMC] (Santini, Jacob)

[Entered: 10/07/2019 06:06 PM]

***

10/07/2019

MOTION [1809833] for leave to

intervene

[Disclosure

Listing:

Attached] filed by PowerSouth Energy

Cooperative

[Service

Date:

10/07/2019 ] [19-1188, 19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186,

19-1187,

19-1189]—

[MODIFIED PARTY FILER—Edited

10/08/2019 by LMC] (Moore, C.)

[Entered: 10/07/2019 07:10 PM]

***

10/07/2019

JOINT MOTION [1809842] for leave

to intervene [Disclosure Listing: Not

Applicable to this Party] filed by New

York,

California,

Colorado,

Connecticut,

Delaware,

Hawaii,

Illinois,

Maine,

Maryland,

Massachusetts, Michigan, Minnesota,

Nevada, New Jersey, New Mexico,

North

Carolina,

Oregon,

Pennsylvania,

Rhode

Island,

12

Vermont, Virginia, Washington, D.C.,

et al. [Service Date: 10/07/2019 ] [191175, 19-1176, 19-1179]—[Edited

10/17/2019 by JAD] (Myers, Michael)

[Entered: 10/07/2019 09:12 PM]

***

11/18/2019

CLERK’S ORDER [1816311] filed

granting motions for leave to

intervene [1809833-2], [1809825-2],

[1809803-2], [1809530-2] in 19-1140,

19-1166, 19-1165, 19-1173, 19-1179,

19-1175, 19-1176, 19-1185, 19-1177,

19-1186, 19-1187, 19-1188, granting

motions for leave to intervene

[1809451-2], [1806915-2], [18069112], [1806910-2], [1806337-2] in 191140, 19-1165, granting motion for

leave to intervene [1805769-2] in 191140, 19-1166, granting motion for

leave to intervene [1805447-2] in 191140, granting motion for leave to

intervene [1809842-2] in 19-1179, 191175, 19-1176 [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188, 19-1189] [Entered:

11/18/2019 02:54 PM]

***

11/22/2019

PER CURIAM ORDER [1817249]

filed denying motion to expedite case

[1803976-2] in 19-1140, 19-1166, 191165; denying motions to hold case in

13

abeyance [1808208-2], [1808103-2],

[1807492-2]; denying motion to sever

issue [1808208-3] in 19-1140, 19-1185;

directing party to file briefing format Proposed formats due 12/23/2019.

SEE ORDER FOR DETAILS. Before

Judges: Rogers and Griffith. [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188] [Entered:

11/22/2019 03:05 PM]

***

04/17/2020

APPELLANT BRIEF [1838611] filed

by Joanne Brown, Norman R. Brown,

Competitive Enterprise Institute,

Construction Industry Air Quality

Coalition, Dalton Trucking, Inc.,

Liberty Packing Company, LLC.,

Nuckles Oil Company, Inc., Robinson

Enterprises, Inc. and Texas Public

Policy Foundation in 19-1175 [Service

Date: 04/17/2020 ] Length of Brief:

4,459 words. [19-1140, 19-1175]

(Hadzi-Antich, Theodore) [Entered:

04/17/2020 11:47 AM]

04/17/2020

PETITIONER BRIEF [1838666] filed

by Westmoreland Mining Holdings

LLC in 19-1176, The North American

Coal Corporation in 19-1179 [Service

Date: 04/17/2020 ] Length of Brief:

8,496 Words. [19-1176, 19-1179]

14

(Cheren, Robert) [Entered: 04/17/2020

02:12 PM]

***

04/17/2020

APPELLANT BRIEF [1838680] filed

by American Lung Association and

American Public Health Association

in 19-1140, 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 in 19-1166, Chesapeake Bay

Foundation, Inc. in 19-1173 [Service

Date: 04/17/2020 ] Length of Brief:

10,119 words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Donahue, Sean)

[Entered: 04/17/2020 02:44 PM]

***

04/17/2020

APPELLANT BRIEF [1838691] filed

by 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 in 19-1188

15

[Service Date: 04/17/2020 ] Length of

Brief: 5962 words. [19-1188, 19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187] (Poloncarz, Kevin)

[Entered: 04/17/2020 03:27 PM]

04/17/2020

APPELLANT BRIEF [1838721] filed

by Biogenic CO2 Coalition in 19-1185

[Service Date: 04/17/2020 ] Length of

Brief: 7,662. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Williamson, David)

[Entered: 04/17/2020 04:54 PM]

***

04/17/2020

JOINT

APPELLANT

BRIEF

[1838735] filed by State of Nevada in

19-1140, City of Boulder, City of

Chicago, City of Los Angeles, City of

New York, City of Philadelphia, City

of South Miami, Commonwealth of

Massachusetts, Commonwealth of

Pennsylvania, Commonwealth of

Virginia, DC, People of the State of

Michigan, State of California, State of

Colorado, State of Connecticut, State

of Delaware, State of Hawaii, State of

Illinois, State of Maine, State of

Maryland, State of Minnesota, State

of New Jersey, State of New Mexico,

State of New York, State of North

Carolina, State of Oregon, State of

16

Rhode Island, State of Vermont, State

of Washington and State of Wisconsin

in 19-1165, City and County of Denver

Colorado in 19-1177 [Service Date:

04/17/2020 ] Length of Brief: 13,414

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Myers, Michael) [Entered:

04/17/2020 05:46 PM]

***

04/17/2020

PETITIONER BRIEF [1838745] filed

by

American

Wind

Energy

Association in 19-1187 [Service Date:

04/17/2020 ] Length of Brief: 2373

words. [19-1187, 19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191188] (Grace, Eugene) [Entered:

04/17/2020 11:06 PM]

***

04/20/2020

CORRECTED

AMICUS

FOR

APPELLANT BRIEF [1838934] filed

by Mr. Thomas C. Jorling in 19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188 [Service

Date: 04/20/2020 ] Length of Brief:

5,890 Words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 19-

17

1187, 19-1188] (Lamm, Theodore)

[Entered: 04/20/2020 06:30 PM]

***

04/22/2020

AMICUS FOR PETITIONER FINAL

BRIEF [1839261] filed by Coalition to

Protect America’s National Parks and

National

Parks

Conservation

Association in 19-1140 [Service Date:

04/22/2020 ] Length of Brief: 6,491

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Pacyniak, Gabriel) [Entered:

04/22/2020 11:17 AM]

***

04/22/2020

AMICUS FOR APPELLANT FINAL

BRIEF [1839431] filed by Prof. Todd

S. Aagaard, Prof. Blake Emerson,

Daniel Farber, Kathryn E. Kovacs,

Richard J. Lazarus, Ronald Levin and

Ms. Nina Alexandra Mendelson in 191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188

[Service Date: 04/22/2020 ] Length of

Brief: 6,491 words.. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Sivas, Deborah)

[Entered: 04/22/2020 08:16 PM]

***

18

04/23/2020

AMICUS FOR APPELLANT BRIEF

[1839544] filed by Benjamin F. Hobbs,

Brendan Kirby, Kenneth J. Lutz and

James D. McCalley in 19-1140

[Service Date: 04/23/2020 ] Length of

Brief: 6,470 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Horowitz, Cara)

[Entered: 04/23/2020 02:07 PM]

04/23/2020

CORRECTED

AMICUS

FOR

APPELLANT BRIEF [1839614] filed

by American Academy of Allergy,

Asthma, & Immunology, American

College of Chest Physicians, American

College

of

Occupational

and

Environmental Medicine, American

Thoracic Society and National

Medical Association in 19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188 Hope M.

Babcock [Service Date: 04/23/2020 ]

Length of Brief: 6,475. [19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188] (Babcock,

Hope) [Entered: 04/23/2020 05:40 PM]

04/23/2020

AMICUS FOR APPELLANT FINAL

BRIEF [1839619] filed by Institute for

Policy Integrity at New York

University School of Law in 19-1140

19

[Service Date: 04/23/2020 ] Length of

Brief: 6,474 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Revesz, Richard)

[Entered: 04/23/2020 10:20 PM]

***

04/24/2020

AMICUS FOR PETITIONER FINAL

BRIEF [1839624] filed by David

Battisti, Kim Cobb, Andrew E.

Dessler, Kerry Emanuel, John Harte,

Daniel

Kirk-Davidoff,

Michael

MacCracken,

Katherine

Mach,

Pamela

Matson,,

James

C.

McWilliams, Mario J. Molina, Michael

Oppenheimer, Joellen L. Russell,

Noelle Eckley Selin, Drew Shindell,

Abigail Swann, Kevin Trenberth and

Diana H. Wall in 19-1140, 19-1166,

19-1165, 19-1173, 19-1179, 19-1175,

19-1176, 19-1185, 19-1177, 19-1186,

19-1187, 19-1188 [Service Date:

04/24/2020 ] Length of Brief: 4,701

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188]—[MODIFIED PARTY FILER—

Edited 04/24/2020 by LMC] (Tai,

Stephanie)

[Entered:

04/24/2020

12:05 AM]

***

20

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839641] filed by City of Asheville,

City of Boston, City of Coral Gables,

City of Houston, City of Las Cruces,

City of Minneapolis, City of New

Orleans, City of Phoenix, City of

Pittsburgh, City of Portland, City of

Providence, City of Saint Paul, City of

Santa Fe, County of Boulder, Detroit

Mayor Mike Duggan, Harris County,

Mayor and City Council of Baltimore,

Mayor of City of Durham, Mayor of

Salt Lake City, Mayor of the Borough

of Glen Rock, National League of

Cities, Town of Chapel Hill, Town of

Cutler Bay and U.S. Conference of

Mayors in 19-1140, 19-1166, 19-1165,

19-1173, 19-1179, 19-1175, 19-1176,

19-1185, 19-1177, 19-1186, 19-1187,

19-1188 [Service Date: 04/24/2020 ]

Length of Brief: 6,499 worfs. [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186,

19-1187,

19-1188]—

[MODIFIED PARTY FILER—Edited

04/24/2020 by LMC] (Burger, Michael)

[Entered: 04/24/2020 10:10 AM]

04/24/2020

AMICUS FOR APPELLANT FINAL

BRIEF [1839668] filed by Central

Conference of American Rabbis,

Coalition on the Environment and

Jewish

Life,

Evangelical

Environmental Network, Hazon,

21

Institute

Leadership

Team,

Maryknoll Sisters, Men of Reform

Judaism,

National

Baptist

Convention, USA, Inc., National

Council of Churches USA, Sisters of

Mercy of the Americas, Union for

Reform Judaism and Women of

Reform Judaism in 19-1140 [Service

Date: 04/24/2020 ] Length of Brief:

5,721 Words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187,

19-1188]

(Steffes,

Keri)

[Entered: 04/24/2020 11:04 AM]

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839691] filed by Maximilian

Auffhammer, Philip Duffy, Kenneth

Gillingham, Lawrence H. Goulder,

James Stock, Union of Concerned

Scientists and Gernot Wagner in 191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188

[Service Date: 04/24/2020 ] Length of

Brief: 6424 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Goho, Shaun)

[Entered: 04/24/2020 11:52 AM]

***

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839705]

filed

by

Columbia

22

Sportswear Company and Patagonia

Works in 19-1140, 19-1165, 19-1166,

19-1173, 19-1175, 19-1176, 19-1177,

19-1179, 19-1185, 19-1186, 19-1187,

19-1188 [Service Date: 04/24/2020 ]

Length of Brief: 6,499 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(Shenkman,

Ethan)

[Entered:

04/24/2020 12:57 PM]

***

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839719] filed by Prof. Michael

Greenstone in 19-1140 [Service Date:

04/24/2020 ] Length of Brief: 6,466

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Templeton, Mark) [Entered:

04/24/2020 01:36 PM]

***

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839766] filed by Service Employees

International Union [Service Date:

04/24/2020 ] Length of Brief: 5787

Words. [19-1140] (Gerni, Renee)

[Entered: 04/24/2020 03:54 PM]

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839772] filed by Nanette Diaz

Barragan, Joyce Beatty, Michael F.

23

Bennet, Donald S. Beyer, Jr., Earl

Blumenauer, Suzanne Bonamici,

Julia Brownley, Salud O. Carbajal,

Tony Cardenas, Benjamin L. Cardin,

Thomas R. Carper, Sean Casten,

Kathy Castor, Yvette D. Clarke,

Emanuel Cleaver, James E. Clyburn,

Steve Cohen, Gerald Connolly, Jason

Crow, Peter A. DeFazio, Diana

DeGette, Debbie Dingell, Michael F.

Doyle, Eliot L. Engel, Anna G. Eshoo,

Adriano Espaillat, Dianne Feinstein,

Jesus G. Garcia, Al Green, Raul M.

Grijalva, Debra A. Haaland, Alcee L.

Hastings, Brian Higgins, Steny H.

Hoyer, Jared Huffman, Eddie Bernice

Johnson, Marcy Kaptur, Joseph P.

Kennedy, III, Ann M. Kuster, Andy

Levin, Mike Levin, Ted Lieu, Alan S.

Lowenthal, Ben Ray Lujan, Edward J.

Markey, Doris Matsui, A, Donald

McEachin, James P. McGovern, Jerry

McNerney, Grace Napolitano, Joe

Neguse, Eleanor Holmes Norton,

Ilhan Omar, Frank Pallone, Jr.,

Nancy Pelosi, Ed Perlmutter, Scott H.

Peters, Chellie Pingree, Mark Pocan,

Mike Quigley, Lisa Blunt Rochester,,

Raul Ruiz, Bobby Rush, John P.

Sarbanes, Janice D. Schakowsky, Jose

E. Serrano, Darren Soto, Dina Titus,

Rashida Tlaib, Paul Tonko, Chris Van

Hollen, Marc Veasey, Deborah

Wasserman Schultz and Peter Welch

24

in 19-1140, 19-1166, 19-1165, 191173, 19-1179, 19-1175, 19-1176, 191185, 19-1177, 19-1186, 19-1187, 191188 [Service Date: 04/24/2020 ]

Length of Brief: 3,738 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]—

[MODIFIED PARTY FILER—Edited

06/08/2020 by LMC] (Gorod, Brianne)

[Entered: 04/24/2020 04:07 PM]

***

04/24/2020

AMICUS FOR APPELLANT FINAL

BRIEF [1839799] filed by Dallas

Burtraw, Charles T. Driscoll, Jr.,

Amelia Keyes and Kathy Fallon

Lambert in 19-1140 [Service Date:

04/24/2020 ] Length of Brief: 4,891

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Monast, Jonas) [Entered:

04/24/2020 05:04 PM]

04/24/2020

AMICUS FOR PETITIONER BRIEF

[1839812] filed by Norman C. Bay,

Nora Mead Brownell, Charles B.

Curtis, James John Hoecker, Colette

Honorable, Elizabeth Anne Moler,

John Norris and Jon Wellinghoff in

19-1140, 19-1166, 19-1165, 19-1173,

19-1179, 19-1175, 19-1176, 19-1185,

19-1177, 19-1186, 19-1187, 19-1188

25

[Service Date: 04/24/2020 ] Length of

Brief: 5,869 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187,

19-1188]—[MODIFIED

PARTY FILER—Edited 06/03/2020 by

LMC]

(Konschnik,

Katherine)

[Entered: 04/24/2020 05:27 PM]

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839820] filed by Mr. Sheldon

Whitehouse in 19-1140 amici curiae

United States Senators: Sen. Sheldon

Whitehouse, Sen. Jeff Merkley, Sen.

Kirsten Gillibrand, Sen. Brian Schatz,

Sen. Edward J. Markey [Service Date:

04/24/2020 ] Length of Brief: 6,472

words [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Isaacson, Eric) [Entered:

04/24/2020 06:02 PM]

04/24/2020

AMICUS FOR APPELLANT BRIEF

[1839823] filed by Environment

America and National Trust for

Historic Preservation in 19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188 [Service Date:

04/24/2020 ] Length of Brief: 5802

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 19-

26

1188] (Sassman, Wyatt) [Entered:

04/24/2020 06:17 PM]

***

06/16/2020

RESPONDENT BRIEF [1847608]

filed by EPA and Andrew Wheeler in

19-1140, EPA in 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188 [Service Date: 06/16/2020 ]

Length of Brief: 52,335 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(Greenfield,

Meghan)

[Entered:

06/16/2020 06:17 PM]

***

06/23/2020

AMICUS

FOR

RESPONDENT

BRIEF [1848667] filed by National

Association of Home Builders of the

United States in 19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187,

19-1188

[Service

Date:

06/23/2020 ] Length of Brief: 3,244.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

(Berge, Megan) [Entered: 06/23/2020

06:41 PM]

***

27

07/16/2020

INTERVENOR FOR RESPONDENT

BRIEF [1851999] filed by State of

North Dakota in 19-1140 [Service

Date: 07/16/2020 ] Length of Brief:

4,002 Words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Seby, Paul) [Entered:

07/16/2020 01:23 PM]

07/16/2020

INTERVENOR FOR RESPONDENT

BRIEF [1852053] filed by 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 in 19-1175, 19-1176, 19-1179, 191185 [Service Date: 07/16/2020 ]

Length of Brief: 6,207 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(Lynch, Melissa) [Entered: 07/16/2020

03:24 PM]

07/16/2020

INTERVENOR FOR RESPONDENT

BRIEF [1852093] filed by AEP

28

Generating

Company,

AEP

Generation Resources Inc., America’s

Power, Appalachian Power Company,

Basin Electric Power Cooperative,

Phil Bryant, Chamber of Commerce of

the United States of America, Georgia

Power Company, Indiana Energy

Association, Indiana Michigan Power

Company, Kentucky Power Company,

Mississippi

Public

Service

Commission,

Murray

Energy

Corporation,

National

Mining

Association, National Rural Electric

Cooperative Association, Nevada Gold

Energy LLC, Nevada Gold Mines

LLC,

Powersouth

Energy

Cooperative, Public Service Company

of Oklahoma, Southwestern Electric

Power Company, State of Alabama,

State of Alaska, State of Arkansas,

State of Georgia, State of Indiana,

State of Kansas, State of Kentucky,

State of Louisiana, State of Missouri,

State of Montana, State of Nebraska,

State of North Dakota, State of Ohio,

State of Oklahoma, State of South

Carolina, State of South Dakota, State

of Texas, State of Utah, State of West

Virginia,

State

of

Wyoming,

Westmoreland Mining Holdings LLC

and Wheeling Power Company in 191140, Indiana Utility Group in 191166, International Brotherhood of

Boilermakers, Iron Ship Builders,

29

Blacksmiths, Forgers and Helpers,

AFLCIO, International Brotherhood

of Electrical Workers, AFL-CIO and

United Mine Workers of America,

AFL-CIO in 19-1173 [Service Date:

07/16/2020 ] Length of Brief: 9,015

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (See, Lindsay) [Entered:

07/16/2020 04:51 PM]

07/16/2020

INTERVENOR FOR RESPONDENT

BRIEF [1852108] filed by AEP

Generating

Company,

AEP

Generation Resources Inc., America’s

Power, Appalachian Power Company,

Basin Electric Power Cooperative,

Chamber of Commerce of the United

States of America, Indiana Energy

Association, Indiana Michigan Power

Company, Indiana Utility Group,

Kentucky Power Company, Murray

Energy Corporation, National Mining

Association, National Rural Electric

Cooperative Association, Nevada Gold

Energy LLC, Nevada Gold Mines

LLC,

Powersouth

Energy

Cooperative, Public Service Company

of Oklahoma, Southwestern Electric

Power

Company,

Westmoreland

Mining Holdings LLC, Wheeling

Power Company, State of West

Virginia, State of Alaska, State of

30

Alabama, State of Arkansas, State of

Georgia, State of Indiana, State of

Kansas, State of Kentucky, State of

Louisiana, Mississippi Public Service

Commission, State of Missouri, State

of Montana, State of Nebraska, State

of North Dakota, State of Ohio, State

of Oklahoma, State of South Carolina,

State of South Dakota, State of Texas,

State of Utah, State of Wyoming, Phil

Bryant and Georgia Power Company

in

19-1140,

Indiana

Energy

Association and Indiana Utility Group

in

19-1166,

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, AFL-CIO in 19-1173

[Service Date: 07/16/2020 ] Length of

Brief: 8,635 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187,

19-1188]

(Lorenzen,

Thomas) [Entered: 07/16/2020 05:25

PM]

07/16/2020

JOINT

INTERVENOR

FOR

RESPONDENT BRIEF [1852121]

filed by City and County of Denver

Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of

New York, City of Philadelphia, City

31

of South Miami, Commonwealth of

Massachusetts, Commonwealth of

Pennsylvania, Commonwealth of

Virginia, DC, State of California,

State

of

Colorado,

State

of

Connecticut, State of Delaware, State

of Hawaii, State of Illinois, State of

Maine, State of Maryland, State of

Michigan, State of Minnesota, State of

Nevada, State of New Jersey, State of

New Mexico, State of New York, State

of North Carolina, State of Oregon,

State of Rhode Island, State of

Vermont and State of Washington in

19-1175, 19-1176, 19-1179 [Service

Date: 07/16/2020 ] Length of Brief:

5,607 words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Lusignan, Brian)

[Entered: 07/16/2020 05:58 PM]

07/28/2020

PETITIONER

REPLY

BRIEF

[1853787] filed by Joanne Brown,

Norman R. Brown, Competitive

Enterprise Institute, Construction

Industry Air Quality Coalition,

Dalton Trucking, Inc., Liberty

Packing Company, LLC., Nuckles Oil

Company, Inc., Robinson Enterprises,

Inc. and Texas Public Policy

Foundation in 19-1175 [Service Date:

07/28/2020 ] Length of Brief: 2,247

words. [19-1140, 19-1175] (Hadzi-

32

Antich,

Theodore)

07/28/2020 02:27 PM]

[Entered:

***

07/30/2020

PETITIONER

REPLY

BRIEF

[1854199] filed by Biogenic CO2

Coalition in 19-1185 [Service Date:

07/30/2020 ] Length of Brief: 3,763.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

(Williamson,

David)

[Entered:

07/30/2020 09:52 AM]

07/30/2020

PETITIONER

REPLY

BRIEF

[1854310] filed by American Lung

Association and American Public

Health Association in 19-1140,

Appalachian Mountain Club, Center

for Biological Diversity, Clean Air

Council,

Clean

Wisconsin,

Environmental

Defense

Fund,

Environmental Law and Policy

Center,

Minnesota

Center

for

Environmental Advocacy, Natural

Resources Defense Council, Sierra

Club

and

Conservation

Law

Foundation in 19-1166, Chesapeake

Bay Foundation, Inc. in 19-1173

[Service Date: 07/30/2020 ] Length of

Brief: 6424 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

33

19-1187, 19-1188] (Lynch, Melissa)

[Entered: 07/30/2020 02:58 PM]

07/30/2020

PETITIONER

REPLY

BRIEF

[1854330] filed by The North

American Coal Corporation in 191179, Westmoreland Mining Holdings

LLC in 19-1176 [Service Date:

07/30/2020 ] Length of Brief: 4,242

words. [19-1179, 19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1185, 19-1186, 19-1187, 191188] (Wehland, Charles) [Entered:

07/30/2020 03:51 PM]

07/30/2020

PETITIONER

REPLY

BRIEF

[1854430] filed by 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 in 19-1188

[Service Date: 07/30/2020 ] Length of

Brief: 3,000 Words. [19-1188, 19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187] (Poloncarz, Kevin)

[Entered: 07/30/2020 06:17 PM]

07/30/2020

JOINT PETITIONER REPLY BRIEF

[1854431] filed by State of Nevada in

19-1140, City of Boulder, City of

Chicago, City of Los Angeles, City of

34

New York, City of Philadelphia, City

of South Miami, Commonwealth of

Massachusetts, Commonwealth of

Pennsylvania, Commonwealth of

Virginia, DC, People of the State of

Michigan, State of California, State of

Colorado, State of Connecticut, State

of Delaware, State of Hawaii, State of

Illinois, State of Maine, State of

Maryland, State of Minnesota, State

of New Jersey, State of New Mexico,

State of New York, State of North

Carolina, State of Oregon, State of

Rhode Island, State of Vermont, State

of Washington and State of Wisconsin

in 19-1165, City and County of Denver

Colorado in 19-1177 [Service Date:

07/30/2020 ] Length of Brief: 6,565

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Myers, Michael) [Entered:

07/30/2020 06:59 PM]

***

08/12/2020

JOINT PETITIONER FINAL BRIEF

[1856250] filed by State of Nevada in

19-1140, City of Boulder, City of

Chicago, City of Los Angeles, City of

New York, City of Philadelphia, City

of South Miami, Commonwealth of

Massachusetts, Commonwealth of

Pennsylvania, Commonwealth of

Virginia, DC, People of the State of

35

Michigan, State of California, State of

Colorado, State of Connecticut, State

of Delaware, State of Hawaii, State of

Illinois, State of Maine, State of

Maryland, State of Minnesota, State

of New Jersey, State of New Mexico,

State of New York, State of North

Carolina, State of Oregon, State of

Rhode Island, State of Vermont, State

of Washington and State of Wisconsin

in 19-1165, City and County of Denver

Colorado in 19-1177 [Service Date:

08/12/2020 ] Length of Brief: 13,414

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (Myers, Michael) [Entered:

08/12/2020 01:47 PM]

***

08/12/2020

JOINT PETITIONER FINAL REPLY

BRIEF [1856253] filed by State of

Nevada in 19-1140, City of Boulder,

City of Chicago, City of Los Angeles,

City of New York, City of

Philadelphia, City of South Miami,

Commonwealth of Massachusetts,

Commonwealth of Pennsylvania,

Commonwealth of Virginia, DC,

People of the State of Michigan, State

of California, State of Colorado, State

of Connecticut, State of Delaware,

State of Hawaii, State of Illinois, State

of Maine, State of Maryland, State of

36

Minnesota, State of New Jersey, State

of New Mexico, State of New York,

State of North Carolina, State of

Oregon, State of Rhode Island, State

of Vermont, State of Washington and

State of Wisconsin in 19-1165, City

and County of Denver Colorado in 191177 [Service Date: 08/12/2020 ]

Length of Brief: 6,565 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]—

[MODIFIED

EVENT-Edited

08/14/2020 by LMC] (Myers, Michael)

[Entered: 08/12/2020 01:59 PM]

***

08/12/2020

CORRECTED PETITIONER FINAL

BRIEF [1856307] filed by Joanne

Brown,

Norman

R.

Brown,

Competitive Enterprise Institute,

Construction Industry Air Quality

Coalition, Dalton Trucking, Inc.,

Liberty Packing Company, LLC.,

Nuckles Oil Company, Inc., Robinson

Enterprises, Inc. and Texas Public

Policy Foundation in 19-1175 [Service

Date: 08/12/2020 ] Length of Brief:

4,457. [19-1140, 19-1175] (HadziAntich,

Theodore)

[Entered:

08/12/2020 06:04 PM]

08/12/2020

PETITIONER FINAL REPLY BRIEF

[1856308] filed by Joanne Brown,

37

Norman R. Brown, Competitive

Enterprise Institute, Construction

Industry Air Quality Coalition,

Dalton Trucking, Inc., Liberty

Packing Company, LLC., Nuckles Oil

Company, Inc., Robinson Enterprises,

Inc. and Texas Public Policy

Foundation in 19-1175 [Service Date:

08/12/2020 ] Length of Brief: 2,247.

[19-1140, 19-1175] (Hadzi-Antich,

Theodore) [Entered: 08/12/2020 06:09

PM]

08/12/2020

AMICUS FOR PETITIONER FINAL

BRIEF [1856309] filed by Benjamin F.

Hobbs, Brendan Kirby,Kenneth J.

Lutz and James D. McCalley in 191140 [Service Date: 08/12/2020 ]

Length of Brief: 6,461 Words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(Horowitz, Cara) [Entered: 08/12/2020

06:17 PM]

08/12/2020

PETITIONER FINAL REPLY BRIEF

[1856325] filed by Westmoreland

Mining Holdings LLC in 19-1176, The

North American Coal Corporation in

19-1179 [Service Date: 08/13/2020 ]

Length of Brief: 4,242 Words. [191140, 19-1176, 19-1179] (Wehland,

Charles) [Entered: 08/13/2020 08:33

AM]

38

08/12/2020

JOINT

INTERVENOR

FOR

RESPONDENT

FINAL

BRIEF

[1856327] filed by City of Boulder,

City of Chicago, City of Los Angeles,

City of New York, City of

Philadelphia, City of South Miami,

Commonwealth of Massachusetts,

Commonwealth of Pennsylvania,

Commonwealth of Virginia, DC, State

of California, State of Colorado, State

of Connecticut, State of Delaware,

State of Hawaii, State of Illinois, State

of Maine, State of Maryland, State of

Michigan, State of Minnesota, State of

Nevada, State of New Jersey, State of

New Mexico, State of New York, State

of North Carolina, State of Oregon,

State of Rhode Island, State of

Vermont and State of Washington in

19-1175, 19-1176, 19-1179 [Service

Date: 08/13/2020 ] Length of Brief:

5,607 Words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Lusignan, Brian)

[Entered: 08/13/2020 09:02 AM]

08/13/2020

JOINT

INTERVENOR

FOR

RESPONDENT

FINAL

BRIEF

[1856359] filed by State of West

Virginia, Chamber of Commerce of the

United States of America, National

Rural

Electric

Cooperative

Association, State of Alabama, State

39

of Alaska, State of Arkansas, State of

Georgia, State of Indiana, State of

Kansas, State of Kentucky, State of

Louisiana, Phil Bryant, Mississippi

Public Service Commission, State of

Missouri, State of Montana, State of

Nebraska, State of North Dakota,

State of Ohio, State of Oklahoma,

State of South Carolina, State of

South Dakota, State of Texas, State of

Utah, State of Wyoming, National

Mining

Association,

Powersouth

Energy Cooperative, America’s Power,

Basin Electric Power Cooperative,

AEP Generating Company, AEP

Generation

Resources

Inc.,

Appalachian

Power

Company,

Indiana Michigan Power Company,

Kentucky Power Company, Public

Service Company of Oklahoma,

Southwestern

Electric

Power

Company, Wheeling Power Company,

Georgia Power Company, Indiana

Energy Association, Murray Energy

Corporation, Nevada Gold Energy

LLC, Nevada Gold Mines LLC and

Westmoreland Mining Holdings LLC

in 19-1140, Indiana Utility Group in

19-1166, 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,

40

AFL-CIO in 19-1173 [Service Date:

08/13/2020 ] Length of Brief: 9,015

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188] (See, Lindsay) [Entered:

08/13/2020 10:37 AM]

08/13/2020

JOINT

INTERVENOR

FOR

RESPONDENT

FINAL

BRIEF

[1856393] filed by AEP Generating

Company, AEP Generation Resources

Inc., America’s Power, Appalachian

Power Company, Basin Electric

Power Cooperative, Chamber of

Commerce of the United States of

America, Indiana Energy Association,

Indiana Utility Group, Indiana

Michigan Power Company, Kentucky

Power Company, Murray Energy

Corporation,

National

Mining

Association, National Rural Electric

Cooperative Association, Nevada Gold

Energy LLC, Nevada Gold Mines

LLC,

Powersouth

Energy

Cooperative, Public Service Company

of Oklahoma, Southwestern Electric

Power

Company,

Westmoreland

Mining Holdings LLC, Wheeling

Power Company, State of West

Virginia, State of Alaska, State of

Alabama, State of Arkansas, State of

Georgia, State of Indiana, State of

Kansas, State of Kentucky, State of

41

Louisiana, Mississippi Public Service

Commission, State of Missouri, State

of Montana, State of Nebraska, State

of North Dakota, State of Ohio, State

of Oklahoma, State of South Carolina,

State of South Dakota, State of Texas,

State of Utah, State of Wyoming, Phil

Bryant and Georgia Power Company

in

19-1140,

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, AFL-CIO in 19-1173

[Service Date: 08/13/2020 ] Length of

Brief: 8634 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187,

19-1188]

(Lorenzen,

Thomas) [Entered: 08/13/2020 11:48

AM]

08/13/2020

PETITIONER

FINAL

BRIEF

[1856396] filed by 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 in 19-1188

[Service Date: 08/13/2020 ] Length of

Brief: 5,962 Words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

42

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Poloncarz, Kevin)

[Entered: 08/13/2020 12:09 PM]

08/13/2020

PETITIONER FINAL REPLY BRIEF

[1856397] filed by 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 in 19-1188

[Service Date: 08/13/2020 ] Length of

Brief: 3,000 Words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Poloncarz, Kevin)

[Entered: 08/13/2020 12:11 PM]

08/13/2020

INTERVENOR FOR RESPONDENT

FINAL BRIEF [1856408] filed by

State of North Dakota in 19-1140

[Service Date: 08/13/2020 ] Length of

Brief: 4002 words. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Seby, Paul)

[Entered: 08/13/2020 12:57 PM]

***

08/13/2020

CORRECTED

RESPONDENT

FINAL BRIEF [1856430] filed by

Andrew Wheeler and EPA in 19-1140,

EPA in 19-1165, 19-1166, 19-1173, 19-

43

1175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188

[Service Date: 08/13/2020 ] Length of

Brief: 52,515 words. [19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188] (Greenfield,

Meghan) [Entered: 08/13/2020 02:25

PM]

***

08/13/2020

PETITIONER

FINAL

BRIEF

[1856447] filed by Westmoreland

Mining Holdings LLC in 19-1176, The

North American Coal Corporation in

19-1179 [Service Date: 08/13/2020 ]

Length of Brief: 8,496 words. [191176, 19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(DeLaquil,

Mark)

[Entered:

08/13/2020 03:19 PM]

08/13/2020

PETITIONER

FINAL

BRIEF

[1856452] filed by Biogenic CO2

Coalition in 19-1185 [Service Date:

08/13/2020 ] Length of Brief: 7,665.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

(Williamson,

David)

[Entered:

08/13/2020 03:52 PM]

44

08/13/2020

PETITIONER FINAL REPLY BRIEF

[1856453] filed by Biogenic CO2

Coalition in 19-1185 [Service Date:

08/13/2020 ] Length of Brief: 3,763.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

(Williamson,

David)

[Entered:

08/13/2020 03:53 PM]

08/13/2020

CORRECTED INTERVENOR FOR

RESPONDENT

FINAL

BRIEF

[1856454] filed by State of North

Dakota in 19-1140 [Service Date:

08/13/2020 ] Length of Brief: 4002

words. [19-1140, 19-1165, 19-1166, 191173, 19-1175, 19-1176, 19-1177, 191179, 19-1185, 19-1186, 19-1187, 191188]

(Seby,

Paul)

[Entered:

08/13/2020 03:53 PM]

***

08/13/2020

PETITIONER

FINAL

BRIEF

[1856458] filed by American Lung

Association and American Public

Health Association in 19-1140,

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

45

Resources Defense Council and Sierra

Club in 19-1166, Chesapeake Bay

Foundation, Inc. in 19-1173 [Service

Date: 08/13/2020 ] Length of Brief:

10,127 words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Lynch, Melissa)

[Entered: 08/13/2020 03:57 PM]

08/13/2020

PETITIONER FINAL REPLY BRIEF

[1856459] filed by American Lung

Association and American Public

Health Association in 19-1140,

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 in 19-1166, Chesapeake Bay

Foundation, Inc. in 19-1173 [Service

Date: 08/13/2020 ] Length of Brief:

6,429 words. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] (Lynch, Melissa)

[Entered: 08/13/2020 04:00 PM]

08/13/2020

INTERVENOR FOR RESPONDENT

FINAL BRIEF [1856461] filed by

46

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 in 19-1175, 19-1176, 19-1179, 191185 [Service Date: 08/13/2020 ]

Length of Brief: 6,197 words. [191140, 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 191185, 19-1186, 19-1187, 19-1188]

(Lynch, Melissa) [Entered: 08/13/2020

04:03 PM]

***

08/13/2020

PETITIONER

FINAL

BRIEF

[1856481] filed by American Wind

Energy Association and Solar Energy

Industries Association in 19-1187

[Service Date: 08/13/2020 ] Length of

Brief: 2375 words.. [19-1140, 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188] (Tabak, Gabriel)

[Entered: 08/13/2020 05:23 PM]

47

08/13/2020

AMICUS FOR PETITIONER FINAL

BRIEF [1856495] filed by Mr. Sheldon

Whitehouse in 19-1140 [Service Date:

08/13/2020 ] Length of Brief: 6,472

words.. [19-1140, 19-1165, 19-1166,

19-1173, 19-1175, 19-1176, 19-1177,

19-1179, 19-1185, 19-1186, 19-1187,

19-1188] (Isaacson, Eric) [Entered:

08/13/2020 08:53 PM]

***

10/08/2020

ORAL ARGUMENT HELD before

Judges Millett, Pillard and Walker.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 10/08/2020 10:00 PM]

***

01/19/2021

PER

CURIAM

JUDGMENT

[1880543] filed that the ACE Rule be

vacated and remanded to the Agency;

the amendments to the implementing

regulations

that

extend

the

compliance timeline be vacated; the

Coal Petitioners’ petitions for review

be denied; and the Robinson

Petitioners’ petition for review be

dismissed for lack of standing, for the

reasons in the accompanying opinion.

Before Judges: Millett, Pillard and

Walker. [19-1140, 19-1165, 19-1166,

19-1173, 19-1175, 19-1176, 19-1177,

19-1179, 19-1185, 19-1186, 19-1187,

48

19-1188] [Entered: 01/19/2021 09:59

AM]

01/19/2021

OPINION [1880546] filed PER

CURIAM OPINION (Pages: 147);

OPINION CONCURRING IN PART,

CONCURRING IN THE JUDGMENT

IN PART, AND DISSENTING IN

PART (Pages: 38) by Judge Walker.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 01/19/2021 10:08 AM]

01/19/2021

CLERK’S ORDER [1880547] filed

withholding issuance of the mandate.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 01/19/2021 10:10 AM]

***

02/12/2021

MOTION [1885168] for a partial stay

of mandate filed by EPA and Andrew

Wheeler in 19-1140, EPA in 19-1165,

19-1166, 19-1173, 19-1175, 19-1176,

19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188 (Service Date:

02/12/2021 by CM/ECF NDA) Length

Certification: 788 words. [19-1140, 191165, 19-1166, 19-1173, 19-1175, 191176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188] (Greenfield,

49

Meghan) [Entered: 02/12/2021 03:30

PM]

***

02/22/2021

PER CURIAM ORDER [1886386]

ORDERED that the respondents’

unopposed motion for a partial stay of

issuance of the mandate be granted

[1885168-2]. The Clerk is directed to

withhold issuance of the mandate

with respect to the vacatur of the

Clean Power Plan Repeal Rule until

the EPA responds to the court’s

remand in a new rulemaking action. It

is FURTHER ORDERED that the

Clerk is directed to issue a partial

mandate in the normal course as to

the vacatur of the ACE Rule and the

vacatur of the challenged timing

provisions within the implementing

regulations.

It

is

FURTHER

ORDERED that respondents file

status reports at 90-day intervals,

beginning 90 days from the date of

this order. Respondents are further

directed to notify the court promptly

upon completion of the agency

rulemaking so that the remainder of

the mandate may issue. Before

Judges: Millett, Pillard and Walker.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

50

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 02/22/2021 10:02 AM]

02/22/2021

[RECALLED

PURSUANT

TO

ORDER

FILED

02/22/2021]—

PARTIAL MANDATE ISSUED to

Environmental Protection Agency.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 02/22/2021 10:12 AM]

02/22/2021

CLERK’S ORDER [1886400] filed

recalling partial mandate to agency

[1886390-2] [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] [Entered: 02/22/2021

10:39 AM]

***

03/05/2021

PARTIAL MANDATE ISSUED to

Environmental Protection Agency.

[19-1140, 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179,

19-1185, 19-1186, 19-1187, 19-1188]

[Entered: 03/05/2021 02:37 PM]

***

11/01/2021

LETTER [1920522] received from the

Clerk of the Supreme Court of the

United States notifying this court of

the following activity in case No. 201530: The petition for writ of

51

certiorari was granted on 10/29/2021.

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

and 20-1780 were consolidated and a

total of one hour allotted for oral

argument. The motion of Lignite

Energy Council for leave to file a brief

amicus curiae was granted. [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188] [Entered:

11/01/2021 07:04 PM]

11/01/2021

LETTER [1920523] received from the

Clerk of the Supreme Court of the

United States notifying this court of

the following activity in case No. 201778: The petition for writ of

certiorari was granted limited to

Question 2 on 10/29/2021. Case Nos.

20-1530, 20-1531, 20-1778, and 201780 were consolidated and a total of

one hour allotted for oral argument.

The motion of Lignite Energy Council

for leave to file a brief amicus curiae

was granted. [19-1140, 19-1165, 191166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 191187, 19-1188] [Entered: 11/01/2021

07:05 PM]

11/01/2021

LETTER [1920524] received from the

Clerk of the Supreme Court of the

United States notifying this court of

the following activity in case No. 20-

52

1780: The petition for writ of

certiorari was Granted on 10/29/2021.

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

and 20-1780 were consolidated and a

total of one hour allotted for oral

argument. The motion of Lignite

Energy Council for leave to file a brief

amicus curiae was granted. [19-1140,

19-1165, 19-1166, 19-1173, 19-1175,

19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188] [Entered:

11/01/2021 07:06 PM]

11/01/2021

LETTER [1920525] received from the

Clerk of the Supreme Court of the

United States notifying this court of

the following activity in case No. 201531: The petition for writ of

certiorari was granted on 10/29/2021.

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

and 20-1780 were consolidated and a

total of one hour allotted for oral

argument. The motion of Lignite

Energy Council for leave to file a brief

amicus curiae was granted. [19-1179]

[Entered: 11/01/2021 07:08 PM]

***

53

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued: October 8, 2020

Decided: January 19, 2021

No. 19-1140

AMERICAN LUNG ASSOCIATION AND AMERICAN PUBLIC

HEALTH ASSOCIATION,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND ANDREW

WHEELER, ADMINISTRATOR,

RESPONDENTS

AEP GENERATING COMPANY, ET AL.,

INTERVENORS

Consolidated with 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179, 19-1185,

19-1186, 19-1187, 19-1188

On Petitions for Review of a Final Action

of the Environmental Protection Agency

54

Steven C. Wu, Deputy Solicitor General, Office of the

Attorney General for the State of New York, argued

the cause for the State and Municipal petitioners and

intervenor Nevada. With him on the briefs were

Letitia James, Attorney General, Barbara D.

Underwood, Solicitor General, Matthew W. Grieco,

Assistant Solicitor General, Michael J. Myers, Senior

Counsel, Andrew G. Frank, Assistant Attorney

General of Counsel, Xavier Becerra, Attorney General,

Office of the Attorney General for the State of

California, Robert W. Byrne, Senior Assistant Attorney

General, David A. Zonana, Supervising Deputy

Attorney General, Jonathan A. Wiener, M. Elaine

Meckenstock, Timothy E. Sullivan, Elizabeth B.

Rumsey, and Theodore A.B. McCombs, Deputy

Attorneys General, William Tong, Attorney General,

Office of the Attorney General for the State of

Connecticut, Matthew I. Levine and Scott N.

Koschwitz, Assistant Attorneys General, Kathleen

Jennings, Attorney General, Office of the Attorney

General for the State of Delaware, Valerie S. Edge,

Deputy Attorney General, Philip J. Weiser, Attorney

General, Office of the Attorney General for the State

of Colorado, Eric R. Olson, Solicitor General, Robyn L.

Wille, Senior Assistant Attorney General, Clare E.

Connors, Attorney General, Office of the Attorney

General for the State of Hawaii, William F. Cooper,

Deputy Attorney General, Aaron M. Frey, Attorney

General, Office of the Attorney General for the State

of Maine, Laura E. Jensen, Assistant Attorney

General, Brian E. Frosh, Attorney General, Office of

the Attorney General for the State of Maryland, John

B. Howard, Jr., Joshua M. Segal, and Steven J.

Goldstein, Special Assistant Attorneys General,

55

Maura Healey, Attorney General, Office of the

Attorney General for the Commonwealth of

Massachusetts, Melissa A. Hoffer and Christophe

Courchesne, Assistant Attorneys General, Megan M.

Herzog and David S. Frankel, Special Assistant

Attorneys General, Dana Nessel, Attorney General,

Office of the Attorney General for the State of

Michigan, Gillian E. Wener, Assistant Attorney

General, Keith Ellison, Attorney General, Office of the

Attorney General for the State of Minnesota, Peter N.

Surdo, Special Assistant Attorney General, Aaron D.

Ford, Attorney General, Office of the Attorney General

for the State of Nevada, Heidi Parry Stern, Solicitor

General, Gurbir S. Grewal, Attorney General, Office of

the Attorney General for the State of New Jersey, Lisa

J. Morelli, Deputy Attorney General, Hector Balderas,

Attorney General, Office of the Attorney General for

the State of New Mexico, Tania Maestas, Chief Deputy

Attorney General, Joshua H. Stein, Attorney General,

Office of the Attorney General for the State of North

Carolina, Asher Spiller, Assistant Attorney General,

Ellen F. Rosenblum, Attorney General, Office of the

Attorney General for the State of Oregon, Paul

Garrahan, Attorney-in-Charge, Steve Novick, Special

Assistant Attorney General, Josh Shapiro, Attorney

General, Office of the Attorney General for the

Commonwealth of Pennsylvania, Ann R. Johnston,

Senior Deputy Attorney General, Aimee D. Thomson,

Deputy Attorney General, Peter F. Neronha, Attorney

General, Office of the Attorney General for the State

of Rhode Island, Gregory S. Schultz, Special Assistant

Attorney General, Thomas J. Donovan, Jr., Attorney

General, Office of the Attorney General for the State

of Vermont, Nicholas F. Persampieri, Assistant

56

Attorney General, Mark Herring, Attorney General,

Office of the Attorney General for the Commonwealth

of Virginia, Donald D. Anderson, Deputy Attorney

General, Paul Kugelman, Jr., Senior Assistant

Attorney General and Chief, Environmental Section,

Caitlin Colleen Graham O’Dwyer, Assistant Attorney

General, Robert W. Ferguson, Attorney General, Office

of the Attorney General for the State of Washington,

Christopher H. Reitz and Emily C. Nelson, Assistant

Attorneys General, Joshua L. Kaul, Attorney General,

Office of the Attorney General for the State of

Wisconsin, Gabe Johnson-Karp, Assistant Attorney

General, Karl A. Racine, Attorney General, Office of

the Attorney General for the District of Columbia,

Loren L. AliKhan, Solicitor General, Tom Carr, City

Attorney, Office of the City Attorney for the City of

Boulder, Debra S. Kalish, Senior Counsel, Mark A.

Flessner, Corporation Counsel, Office of the

Corporation Counsel for the City of Chicago, Benna

Ruth Solomon, Deputy Corporation Counsel, Jared

Policicchio, Supervising Assistant Corporation

Counsel, Kristin M. Bronson, City Attorney, Office of

the City Attorney for the City and County of Denver,

Lindsay S. Carder and Edward J. Gorman, Assistant

City Attorneys, Michael N. Feuer, City Attorney,

Office of the City Attorney for the City of Los Angeles,

Michael J. Bostrom, Assistant City Attorney, James E.

Johnson, Corporation Counsel, New York City Law

Department, Christopher G. King, Senior Counsel,

Marcel S. Pratt, City Solicitor, City of Philadelphia

Law Department, Scott J. Schwarz and Patrick K.

O’Neill, Divisional Deputy City Solicitors, and Thomas

F. Pepe, City Attorney, City of South Miami. Morgan

A. Costello and Brian M. Lusignan, Assistant

57

Attorneys General, Office of the Attorney General for

the State of New York, Gavin G. McGabe, Deputy

Attorney General, Anne Minard, Special Assistant

Attorney General, Office of the Attorney General for

the State of New Mexico, Cynthia M. Weisz, Assistant

Attorney General, Office of the Attorney General for

the State of Maryland, entered appearances.

Kevin Poloncarz argued the cause for Power

Company Petitioners. With him on the briefs were

Donald L. Ristow and Jake Levine.

Mark W. DeLaquil argued the cause for Coal

Industry Petitioners. With him on the briefs were

Shay Dvoretzky, Charles T. Wehland, Jeffery D.

Ubersax, Robert D. Cheren, and Andrew Grossman.

Theodore Hadzi-Antich argued the cause for

Robinson Enterprises Petitioners. With him on the

briefs were Robert Henneke and Ryan D. Walters.

Sean H. Donahue and Michael J. Myers argued the

causes for Public Health and Environmental

Petitioners. On the briefs were Ann Brewster Weeks,

James P. Duffy, Susannah L. Weaver, Joanne

Spalding, Andres Restrepo, Vera Pardee, Clare

Lakewood, Howard M. Crystal, Elizabeth Jones,

Brittany E. Wright, Jon A. Mueller, David Doniger,

Benjamin Longstreth, Melissa J. Lynch, Lucas May,

Vickie L. Patton, Tomas Carbonell, Benjamin Levitan,

Howard Learner, and Scott Strand. Alejandra Nunez

entered an appearance.

David M. Williamson argued the cause and filed the

briefs for Biogenic Petitioners.

Gene Grace, Jeff Dennis, and Rick Umoff were on

the brief for petitioners American Wind Energy

Association, et al.

58

Theodore E. Lamm and Sean B. Hecht were on the

brief for amicus curiae Thomas C. Jorling in support

of petitioners.

Gabriel Pacyniak, Brent Chapman, and Graciela

Esquivel were on the brief for amici curiae the

Coalition to Protect America’s National Parks and the

National Parks Conservation Association in support of

petitioners.

Deborah A. Sivas and Matthew J. Sanders were on

the brief for amici curiae Administrative Law

Professors in support of petitioners.

Hope M. Babcock was on the brief for amici curiae

the American Thoracic Society, et al. in support of

petitioners.

Richard L. Revesz and Jack Lienke were on the brief

for amicus curiae the Institute for Policy Integrity at

New York University School of Law in support of

petitioners.

Steph Tai was on the brief for amici curiae Climate

Scientists in support of petitioners.

Michael Burger and Collyn Peddie were on the brief

for amici curiae the National League of Cities, et al. in

support of petitioners.

Keri R. Steffes was on the brief for amici curiae

Faith Organizations in support of petitioners.

Shaun A. Goho was on the brief for amici curiae

Maximilian Auffhammer, et al. in support of

petitioners.

Ethan G. Shenkman and Stephen K. Wirth were on

the brief for amici curiae Patagonia Works and

Columbia Sportswear Company in support of

petitioners.

59

Mark Norman Templeton, Robert Adam Weinstock,

Alexander Valdes, and Benjamin Nickerson were on

the brief for amicus curiae Professor Michael

Greenstone in support of petitioners.

Nicole G. Berner and Renee M. Gerni were on the

brief for amicus curiae the Service Employees

International Union in support of petitioners.

Elizabeth B. Wydra, and Brianne J. Gorod were on

the brief for amici curiae Members of Congress in

support of petitioners.

Jonas J. Monast was on the brief for amici curiae

Energy Modelers in support of petitioners.

Katherine Konschnik was on the brief for amici

curiae Former Commissioners of the Federal Energy

Regulatory Commission in support of petitioners.

Michael Landis, Elizabeth S. Merritt, and Wyatt G.

Sassman were on the brief for amici curiae

Environment America and National Trust for Historic

Preservation in support of petitioners.

Cara A. Horowitz was on the brief for amici curiae

Grid Experts in support of petitioners.

Eric Alan Isaacson was on the brief for amici curiae

U.S. Senators in support of petitioners.

Jonathan D. Brightbill, Principal Deputy Assistant

Attorney General, U.S. Department of Justice, and

Meghan E. Greenfield and Benjamin Carlisle,

Attorneys, argued the causes for respondents. With

them on the brief was Jeffrey Bossert Clark, Assistant

Attorney General.

Lindsay S. See, Solicitor General, Office of the

Attorney General for the State of West Virginia,

argued the cause for State and Industry intervenors in

60

support of respondents regarding Affordable Clean

Energy Rule. With her on the brief were Patrick

Morrisey, Attorney General, Thomas T. Lampman,

Assistant Solicitors General, Thomas A. Lorenzen,

Elizabeth B. Dawson, Rae Cronmiller, Kevin G.

Clarkson, Attorney General at the time the brief was

filed, Office of the Attorney General for the State of

Alaska, Clyde Sniffen Jr., Attorney General, Leslie

Rutledge, Attorney General, Office of the Attorney

General for the State of Arkansas, Nicholas J. Bronni,

Solicitor General, Vincent M. Wagner, Deputy Solicitor

General, Dylan L. Jacobs, Assistant Solicitor General,

Steve Marshall, Attorney General, Office of the

Attorney General for the State of Alabama, Edmund

G. LaCour, Jr., Solicitor General, Christopher M.

Carr, Attorney General, Office of the Attorney General

for the State of Georgia, Andrew A. Pinson, Solicitor

General, Derek Schmidt, Attorney General, Office of

the Attorney General for the State of Kansas, Jeffrey

A. Chanay, Chief Deputy Attorney General, Curtis T.

Hill, Jr., Attorney General, Office of the Attorney

General of Indiana, Thomas M. Fisher, Solicitor

General, Andrew Beshear, Governor, Office of the

Governor for the Commonwealth of Kentucky, S.

Travis Mayo, Chief Deputy General Counsel, Taylor

Payne, Deputy General Counsel, Joseph A. Newberg,

Deputy General Counsel and Deputy Executive

Director, Jeff Landry, Attorney General, Office of the

Attorney General for the State of Louisiana, Elizabeth

B. Murrill, Solicitor General, Harry J. Vorhoff,

Assistant Attorney General, Eric S. Schmitt, Attorney

General, Office of the Attorney General for the State

of Missouri, D. John Sauer, Solicitor General, Julie

Marie Blake, Deputy Solicitor General, Timothy C.

61

Fox, Attorney General at the time the brief was filed,

Office of the Attorney General for the State of

Montana, Matthew T. Cochenour, Deputy Solicitor

General, Wayne Stenehjem, Attorney General, Office

of the Attorney General for the State of North Dakota,

Paul M. Seby, Special Assistant Attorney General,

Douglas J. Peterson, Attorney General, Office of the

Attorney General for the State of Nebraska, Justin D.

Lavene, Assistant Attorney General, Dave Yost,

Attorney General, Office of the Attorney General of

the State of Ohio, Benjamin M. Flowers, Solicitor

General, Cameron F. Simmons, Principal Assistant

Attorney General, Mike Hunter, Attorney General,

Office of the Attorney General for the State of

Oklahoma, Mithun Mansinghani, Solicitor General,

Jason R. Ravnsborg, Attorney General, Office of the

Attorney General for the State of South Dakota,

Steven R. Blair, Assistant Attorney General, Alan

Wilson, Attorney General, Office of the Attorney

General for the State of South Carolina, James Emory

Smith, Jr., Deputy Solicitor General, Ken Paxton,

Attorney General, Office of the Attorney General for

the State of Texas, Kyle D. Hawkins, Solicitor General,

Sean Reyes, Attorney General, Office of the Attorney

General for the State of Utah, Tyler R. Green, Solicitor

General, Bridget Hill, Attorney General, Office of the

Attorney General for the State of Wyoming, James

Kaste, Deputy Attorney General, Todd E. Palmer,

William D. Booth, Obianuju Okasi, Carroll W.

McGuffey, III, Misha Tseytlin, C. Grady Moore, III,

Julia Barber, F. William Brownell, Elbert Lin, Allison

D. Wood, Scott A. Keller, Jeffrey H. Wood, Jeremy Evan

Maltz, Steven P. Lehotsky, Michael B. Schon, Emily

Church Schilling, Kristina R. Van Bockern, David M.

62

Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M.

Smith, Janet J. Henry, Melissa Horne, Angela Jean

Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak,

Michael A. Zody, Jacob Santini, Robert D. Cheren,

Mark W. DeLaquil, and Andrew M. Grossman. C.

Frederick Beckner, III, James R. Bedell, Margaret C.

Campbell, Erik D. Lange, and John D. Lazzaretti

entered an appearance.

James P. Duffy argued the cause for Public Health

and Environmental Intervenors in support of

respondents. With him on the brief were Ann Brewster

Weeks, Sean H. Donahue, Susannah L. Weaver,

Joanne Spalding, Andres Restrepo, Vera Pardee, Clare

Lakewood, Elizabeth Jones, Brittany E. Wright, Jon A.

Mueller, David Doniger, Benjamin Longstreth, Melissa

J. Lynch, Lucas May, Vickie L. Patton, Tomas

Carbonell, Benjamin Levitan, Howard Learner, and

Scott Strand.

Letitia James, Attorney General, Office of the

Attorney General for the State of New York, Michael

J. Myers, Senior Counsel, Brian Lusignan, Assistant

Attorney General of Counsel, Barbara D. Underwood,

Solicitor General, Steven C. Wu, Deputy Solicitor

General, Matthew W. Grieco, Assistant Solicitor

General, Xavier Becerra, Attorney General, Office of

the Attorney General for the State of California,

Robert W. Byrne, Senior Assistant Attorney General,

David A. Zonana, Supervising Deputy Attorney

General, Jonathan A. Wiener, M. Elaine Meckenstock,

Timothy E. Sullivan, Elizabeth B. Rumsey, and

Theodore A.B. McCombs, Deputy Attorneys General,

William Tong, Attorney General, Office of the

Attorney General for the State of Connecticut,

Matthew I. Levine and Scott N. Koschwitz, Assistant

63

Attorneys General, Kathleen Jennings, Attorney

General, Office of the Attorney General for the State

of Delaware, Valerie S. Edge, Deputy Attorney

General, Philip J. Weiser, Attorney General, Office of

the Attorney General for the State of Colorado, Eric R.

Olson, Solicitor General, Robyn L. Wille, Senior

Assistant Attorney General, Clare E. Connors,

Attorney General, Office of the Attorney General for

the State of Hawaii, William F. Cooper, Deputy

Attorney General, Aaron M. Frey, Attorney General,

Office of the Attorney General for the State of Maine,

Laura E. Jensen, Assistant Attorney General, Brian

E. Frosh, Attorney General, Office of the Attorney

General for the State of Maryland, John B. Howard,

Jr., Joshua M. Segal, and Steven J. Goldstein, Special

Assistant Attorneys General, Maura Healey, Attorney

General, Office of the Attorney General for the

Commonwealth of Massachusetts, Melissa A. Hoffer

and Christophe Courchesne, Assistant Attorneys

General, Megan M. Herzog and David S. Frankel,

Special Assistant Attorneys General, Dana Nessel,

Attorney General, Office of the Attorney General for

the State of Michigan, Gillian E. Wener, Assistant

Attorney General, Keith Ellison, Attorney General,

Office of the Attorney General for the State of

Minnesota, Peter N. Surdo, Special Assistant Attorney

General, Aaron D. Ford, Attorney General, Office of

the Attorney General for the State of Nevada, Heidi

Parry Stern, Solicitor General, Gurbir S. Grewal,

Attorney General, Office of the Attorney General for

the State of New Jersey, Lisa J. Morelli, Deputy

Attorney General, Hector Balderas, Attorney General,

Office of the Attorney General for the State of New

Mexico, Tania Maestas, Chief Deputy Attorney

64

General, Joshua H. Stein, Attorney General, Office of

the Attorney General for the State of North Carolina,

Asher Spiller, Assistant Attorney General, Ellen F.

Rosenblum, Attorney General, Office of the Attorney

General for the State of Oregon, Paul Garrahan,

Attorney-in-Charge, Steve Novick, Special Assistant

Attorney General, Josh Shapiro, Attorney General,

Office of the Attorney General for the Commonwealth

of Pennsylvania, Ann R. Johnston, Senior Deputy

Attorney General, Aimee D. Thomson, Deputy

Attorney General, Peter F. Neronha, Attorney

General, Office of the Attorney General for the State

of Rhode Island, Gregory S. Schultz, Special Assistant

Attorney General, Thomas J. Donovan, Jr., Attorney

General, Office of the Attorney General for the State

of Vermont, Nicholas F. Persampieri, Assistant

Attorney General, Mark Herring, Attorney General,

Office of the Attorney General for the Commonwealth

of Virginia, Donald D. Anderson, Deputy Attorney

General, Paul Kugelman, Jr., Senior Assistant

Attorney General and Chief, Environmental Section,

Caitlin Colleen Graham O’Dwyer, Assistant Attorney

General, Robert W. Ferguson, Attorney General, Office

of the Attorney General for the State of Washington,

Christopher H. Reitz and Emily C. Nelson, Assistant

Attorneys General, Karl A. Racine, Attorney General,

Office of the Attorney General for the District of

Columbia, Loren L. AliKhan, Solicitor General, Tom

Carr, City Attorney, Office of the City Attorney for the

City of Boulder, Debra S. Kalish, Senior Counsel,

Mark A. Flessner, Corporation Counsel, Office of the

Corporation Counsel for the City of Chicago, Benna

Ruth Solomon, Deputy Corporation Counsel, Jared

Policicchio, Supervising Assistant Corporation

65

Counsel, Kristin M. Bronson, City Attorney, Office of

the City Attorney for the City and County of Denver,

Lindsay S. Carder and Edward J. Gorman, Assistant

City Attorneys, Michael N. Feuer, City Attorney,

Office of the City Attorney for the City of Los Angeles,

Michael J. Bostrom, Assistant City Attorney, James E.

Johnson, Corporation Counsel, New York City Law

Department, Christopher G. King, Senior Counsel,

Marcel S. Pratt, City Solicitor, City of Philadelphia

Law Department, Scott J. Schwarz and Patrick K.

O’Neill, Divisional Deputy City Solicitors, and Thomas

F. Pepe, City Attorney, City of South Miami were on

the brief for the State and Municipal Intervenors in

support of respondents. Jeremiah Langston, Assistant

Attorney General, Office of the Attorney General for

the State of Montana, Stephen C. Meredith, Solicitor,

Office of the Attorney General for the Commonwealth

of Kentucky, Margaret I. Olson, Assistant Attorney

General, Office of the Attorney General for the State

of North Dakota, and Erik E. Petersen, Assistant

Attorney General, Office of the Attorney General for

the State of Wyoming, and Robert A. Wolf entered

appearances.

Patrick Morrisey, Attorney General, Office of the

Attorney General for the State of West Virginia,

Lindsay S. See, Solicitor General, Thomas T.

Lampman, Assistant Solicitor General, Scott A. Keller,

Jeffrey H. Wood, Jeremy Evan Maltz, Steven P.

Lehotsky, Michael B. Schon, Thomas A. Lorenzen,

Elizabeth B. Dawson, Rae Cronmiller, Steve Marshall,

Attorney General, Office of the Attorney General for

the State of Alabama, Edmund G. LaCour, Jr.,

Solicitor General, Kevin G. Clarkson, Attorney

General, Office of the Attorney General for the State

66

of Alaska at the time the brief was filed, Clyde Sniffen,

Jr., Attorney General, Leslie Rutledge, Attorney

General, Office of the Attorney General for the State

of Arkansas, Nicholas J. Bronni, Solicitor General,

Vincent M. Wagner, Deputy Solicitor General, Dylan

L. Jacobs, Assistant Solicitor General, Christopher M.

Carr, Attorney General, Office of the Attorney General

for the State of Georgia, Andrew A. Pinson, Solicitor

General, Derek Schmidt, Attorney General, Office of

the Attorney General for the State of Kansas, Jeffrey

A. Chanay, Chief Deputy Attorney General, Curtis T.

Hill, Jr., Attorney General, Office of the Attorney

General of Indiana, Thomas M. Fisher, Solicitor

General, Andrew Beshear, Governor, Office of the

Governor for the Commonwealth of Kentucky, S.

Travis Mayo, Chief Deputy General Counsel, Taylor

Payne, Deputy General Counsel, Joseph A. Newberg,

Deputy General Counsel and Deputy Executive

Director, Jeff Landry, Attorney General, Office of the

Attorney General for the State of Louisiana, Elizabeth

B. Murrill, Solicitor General, Harry J. Vorhoff,

Assistant Attorney General, Eric S. Schmitt, Attorney

General, Office of the Attorney General for the State

of Missouri, D. John Sauer, Solicitor General, Julie

Marie Blake, Deputy Solicitor General, Timothy C.

Fox, Attorney General at the time the brief was filed,

Office of the Attorney General for the State of

Montana, Matthew T. Cochenour, Deputy Solicitor

General, Wayne Stenehjem, Attorney General, Office

of the Attorney General for the State of North Dakota,

Paul M. Seby, Special Assistant Attorney General,

Douglas J. Peterson, Attorney General, Office of the

Attorney General for the State of Nebraska, Justin D.

Lavene, Assistant Attorney General, Dave Yost,

67

Attorney General, Office of the Attorney General of

the State of Ohio, Benjamin M. Flowers, Solicitor

General, Cameron F. Simmons, Principal Assistant

Attorney General, Mike Hunter, Attorney General,

Office of the Attorney General for the State of

Oklahoma, Mithun Mansinghani, Solicitor General,

Jason R. Ravnsborg, Attorney General, Office of the

Attorney General for the State of South Dakota,

Steven R. Blair, Assistant Attorney General, Alan

Wilson, Attorney General, Office of the Attorney

General for the State of South Carolina, James Emory

Smith, Jr., Deputy Solicitor General, Ken Paxton,

Attorney General, Office of the Attorney General for

the State of Texas, Kyle D. Hawkins, Solicitor General,

Sean Reyes, Attorney General, Office of the Attorney

General for the State of Utah, Tyler R. Green, Solicitor

General, Bridget Hill, Attorney General, Office of the

Attorney General for the State of Wyoming, James

Kaste, Deputy Attorney General, Todd E. Palmer,

William D. Booth, Obianuju Okasi, Carroll W.

McGuffey, III, Misha Tseytlin, C. Grady Moore, III,

Julia Barber, F. William Brownell, Elbert Lin, Allison

D. Wood, Emily Church Schilling, Kristina R. Van

Bockern, David M. Flannery, Kathy G. Beckett,

Edward L. Kropp, Amy M. Smith, Janet J. Henry,

Melissa Horne, Angela Jean Levin, Eugene M. Trisko,

John A. Rego, Reed W. Sirak, Michael A. Zody, Jacob

Santini, Robert D. Cheren, Mark W. DeLaquil, and

Andrew M. Grossman were on the brief for State and

Industry Intervenors in support of respondents

regarding Clean Power Plan Repeal.

Wayne Stenehjem, Attorney General, Office of the

Attorney General for the State of North Dakota, and

Paul M. Seby, Special Assistant Attorney General,

68

were on the brief for intervenor State of North Dakota

in support of the respondents. Jerry Stouck entered an

appearance.

Thomas J. Ward, Megan H. Berge, and Jared R.

Wigginton were on the brief for amicus curiae National

Association of Builders in support of respondents.

Before: MILLET, PILLARD, and WALKER, Circuit

Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part, concurring in the

judgment in part, and dissenting in part filed by

Circuit Judge WALKER.

69

TABLE OF CONTENTS

I.

II.

Background ..................................................... 17

A.

The Clean Air Act ...................................... 17

B.

Electricity and Climate Change................ 21

1.

Electricity ......................................... 21

2.

Climate Change and the

Federal Government ........................ 24

C.

The Clean Power Plan ............................... 29

D.

The ACE Rule ............................................ 32

1.

Repeal of the Clean Power Plan ....... 32

2.

Best System of Emission

Reduction ........................................... 33

3.

Degree of Emission

Limitation Achievable ....................... 36

4.

Implementing Regulations ................ 38

E.

Petitions for Review .................................. 38

F.

Jurisdiction and Standard of Review ....... 39

Section 7411 ..................................................... 40

A.

B.

C.

Statutory Context ...................................... 40

1.

Text .................................................... 46

2.

Statutory History, Structure,

and Purpose ....................................... 59

3.

Compliance Measures ....................... 71

The Major Questions Doctrine .................. 74

1.

The EPA’s Regulatory Mandate ....... 75

2.

Best System of Emission

Reduction ........................................... 80

Federalism ................................................. 92

70

III. The EPA’s Authority to Regulate Carbon

Dioxide Emissions Under Section 7411 ..... 98

A.

B.

The Coal Petitioners’ Challenges .............. 98

1.

Endangerment Finding ..................... 99

2.

Section 7411 and Section 7412’s

Parallel Operation ........................... 111

The Robinson Petitioners’ Challenges .... 132

IV. Amendments to the Implementing

Regulations ................................................... 138

V.

Vacatur and Remand .................................. 146

VI. Conclusion ..................................................... 147

71

As the Supreme Court recognized nearly fourteen

years ago, climate change has been called “the most

pressing environmental challenge of our time.”

Massachusetts v. EPA, 549 U.S. 497, 505 (2007)

(formatting modified). Soon thereafter, the United

States government determined that greenhouse gas

emissions are polluting our atmosphere and causing

significant and harmful effects on the human

environment. Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section 202(a)

of the Clean Air Act (2009 Endangerment Finding), 74

Fed. Reg. 66,496, 66,497–66,499 (Dec. 15, 2009). And

both Republican and Democratic administrations have

agreed: Power plants burning fossil fuels like coal “are

far and away” the largest stationary source of

greenhouse gases and, indeed, their role in greenhouse

gas emissions “dwarf[s] other categories[.]” EPA Br.

169; see also Standards of Performance for

Greenhouse Gas Emissions from New, Modified, and

Reconstructed Stationary Sources: Electric Utility

Generating Units (New Source Rule), 80 Fed. Reg.

64,510, 64,522 (Oct. 23, 2015) (fossil-fuel-fired power

plants are “by far the largest emitters” of greenhouse

gases).

The question in this case is whether the

Environmental Protection Agency (EPA) acted

lawfully in adopting the 2019 Affordable Clean Energy

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

as a means of regulating power plants’ emissions of

greenhouse gases. It did not. Although the EPA has

the legal authority to adopt rules regulating those

emissions, the central operative terms of the ACE Rule

and the repeal of its predecessor rule, the Clean Power

Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015), hinged on a

72

fundamental misconstruction of Section 7411(d) of the

Clean Air Act. In addition, the ACE Rule’s amendment

of the regulatory framework to slow the process for

reduction of emissions is arbitrary and capricious. For

those reasons, the ACE Rule is vacated, and the record

is remanded to the EPA for further proceedings

consistent with this opinion.

I. BACKGROUND

A. THE CLEAN AIR ACT

In 1963, Congress passed the Clean Air Act, 42

U.S.C. § 7401 et seq., “to protect and enhance the

quality of the Nation’s air resources so as to promote

the public health and welfare and the productive

capacity of its population[,]” id. § 7401(b)(1).

Animating the Act was Congress’ finding that “growth

in the amount and complexity of air pollution brought

about by urbanization, industrial development, and

the increasing use of motor vehicles[] has resulted in

mounting dangers to the public health and welfare[.]”

Id. § 7401(a)(2).

Section 111 of the Clean Air Act, which was added

in 1970 and codified at 42 U.S.C. § 7411, directs the

EPA to regulate any new and existing stationary

sources of air pollutants that “cause[], or contribute[]

significantly to, air pollution” and that “may

reasonably be anticipated to endanger public health or

welfare.” 42 U.S.C. § 7411(b)(1)(A); see id. § 7411(d), (f)

(providing that the EPA Administrator “shall”

regulate existing and new sources of air pollution). A

“stationary source” is a source of air pollution that

cannot move, such as a power plant. See id.

§ 7411(a)(3) (defining “stationary source” as “any

building, structure, facility, or installation which

73

emits or may emit any air pollutant[]”). An example of

a common non-stationary source of air pollution is a

gas-powered motor vehicle. See Utility Air Regulatory

Group v. EPA (UARG), 573 U.S. 302, 308 (2014).

Within 90 days of the enactment of Section 7411, the

EPA Administrator was to promulgate a list of

stationary source categories that “cause[], or

contribute[] significantly to, air pollution[.]” 42 U.S.C.

§ 7411(b)(1)(A). In 1971, the Administrator included

fossil-fuel-fired steam-generating power plants on

that list. Air Pollution Prevention and Control: List of

Categories of Stationary Sources, 36 Fed. Reg. 5,931

(March 31, 1971); see also New Source Rule, 80 Fed.

Reg. at 64,527–64,528. Today’s power plants fall in

that same category. ACE Rule, 84 Fed. Reg. at 32,557

n.250.

Once a stationary source category is listed, the

Administrator must promulgate federal “standards of

performance” for all newly constructed sources in the

category. 42 U.S.C. § 7411(b)(1)(B). The Act defines a

“standard of performance” as

a standard for emissions of air pollutants which

reflects the degree of emission limitation

achievable through the application of the best

system of emission reduction which (taking into

account the cost of achieving such reduction and

any nonair quality health and environmental

impact

and

energy

requirements)

the

Administrator determines has been adequately

demonstrated.

Id. § 7411(a)(1).

Once such a new source regulation is promulgated,

the Administrator also must issue emission guidelines

74

for already-existing stationary sources within that

same source category. 42 U.S.C. § 7411(d)(1)(A)(ii); see

also American Elec. Power Co., Inc. v. Connecticut

(AEP), 564 U.S. 410, 424 (2011).

While the new source standards are promulgated

and enforced entirely by the EPA, the Clean Air Act

prescribes a process of cooperative federalism for the

regulation of existing sources. Under that structure,

the statute delineates three distinct regulatory steps

involving three sets of actors—the EPA, the States,

and regulated industry—each of which has a flexible

role in choosing how to comply. See 42 U.S.C.

§ 7411(a)(1), (d). This allows each State to work with

the stationary sources within its jurisdiction to devise

a plan for meeting the federally promulgated

quantitative guideline for emissions. See id. § 7411(d).

The process starts with the EPA first applying its

expertise to determine “the degree of emission

limitation achievable through the application of the

best system of emission reduction” that “has been

adequately demonstrated.” 42 U.S.C. § 7411(a)(1); see

40 C.F.R. § 60.22a. That system must “tak[e] into

account the cost of achieving such reduction and any

nonair quality health and environmental impact and

energy requirements[.]” 42 U.S.C. § 7411(a)(1). Once

the Administrator identifies the best system of

emission reduction, she then determines the amount

of emission reduction that existing sources should be

able to achieve based on the application of that system

and adopts corresponding emission guidelines. Id.; see

also, e.g., ACE Rule, 84 Fed. Reg. at 32,523; Clean

Power Plan, 80 Fed. Reg. at 64,719.

75

Each State then submits to the EPA a plan that (i)

establishes standards of performance for that State’s

existing stationary sources’ air pollutants (excepting

pollutants already subject to separate federal

emissions standards), and (ii) “provides for the

implementation and enforcement of such standards of

performance[]” by the State. 42 U.S.C. § 7411(d)(1); see

40 C.F.R. § 60.23a. The standards of performance

must “reflect[]” the emission targets that the EPA has

determined are achievable. 42 U.S.C. § 7411(a)(1). In

this context, a state standard need not adopt the best

system identified by the EPA to “reflect[]” it. Id.; see

40 C.F.R. § 60.24a(c). Instead, the Clean Air Act

affords States significant flexibility in designing and

enforcing standards that employ other approaches so

long as they meet the emission guidelines prescribed

by the Agency.

If a State fails to submit a satisfactory plan, the

EPA may prescribe a plan for that State. 42 U.S.C.

§ 7411(d)(2)(A); see 40 C.F.R. § 60.27a(c)–(e).

Similarly, if the State submits a plan but fails to

enforce it, the EPA itself may enforce the plan’s terms.

Id. § 7411(d)(2)(B).

The third and final set of relevant actors are the

regulated entities themselves, to which, under the Act,

the States may afford leeway in crafting compliance

measures. See Clean Power Plan, 80 Fed. Reg. at

64,666; ACE Rule, 84 Fed. Reg. at 32,555.

The EPA has exercised its authority under Section

7411 over the years to set emission limitations for

different types of air pollution from various categories

of existing sources. See 42 Fed. Reg. 12,022 (March 1,

1977) (fluorides from phosphate fertilizer plants); 42

76

Fed. Reg. 55,796 (Oct. 18, 1977) (acid mist from

sulfuric acid plants); 44 Fed. Reg. 29,828 (May 22,

1979) (total reduced sulfur from kraft pulp plants); 45

Fed. Reg. 26,294 (April 17, 1980) (fluorides from

primary aluminum plants); 60 Fed. Reg. 65,387 (Dec.

19, 1995) (various pollutants from municipal waste

combustors); 61 Fed. Reg. 9905 (March 12, 1996)

(landfill gases from municipal solid waste landfills); 70

Fed. Reg. 28,606 (May 18, 2005) (mercury from coalfired power plants).

The Clean Air Act is a comprehensive statute that

includes a variety of regulatory programs for tackling

air pollution in addition to Section 7411. Regulated

parties may be subject to one or more programs. As

relevant here, the National Ambient Air Quality

Standards (NAAQS) provisions, 42 U.S.C. §§ 7408–

7410, govern the levels of specified air pollutants that

may be present in the atmosphere to protect air

quality and the public health and welfare. The

Hazardous Air Pollutants program, id. § 7412, directs

the EPA to establish strict emission limitations for the

most dangerous air pollutants emitted from major

sources. Section 7411’s cooperative federalism

program for existing sources operates as a gap-filler,

requiring the EPA to regulate harmful emissions not

controlled under those other two programs. Id.

§ 7411(d)(1)(i).

B. ELECTRICITY AND CLIMATE CHANGE

1. Electricity

Electricity powers the world. Chances are that you

are reading this opinion on a device that consumes

electricity. Yet two distinct characteristics of

electricity make its production and delivery in the

77

massive quantities demanded by consumers an

exceptionally complex process. First, unlike most

products, electricity is a perfectly fungible commodity.

Grid Experts Amicus Br. 6. A watt of electricity is a

watt of electricity, no matter who makes it, how they

make it, or where it is purchased. Second, at least as

of now, this highly demanded product cannot be

effectively stored at scale after it is created. Paul L.

Joskow, Creating a Smarter U.S. Electricity Grid, 26

J. Econ. Persp. 29, 31–33 (2012).1 Instead, electricity

must constantly be produced, and is almost

instantaneously consumed. See Clean Power Plan, 80

Fed. Reg. at 64,677, 64,692; Grid Experts Amicus Br.

8.

Those unique attributes led to the creation of the

American electrical grid.2 The grid has been called the

Change in storage capacity is picking up speed. See

generally Richard L. Revesz & Burcin Unel, Managing the Future

of the Electricity Grid: Energy Storage and Greenhouse Gas

Emissions, 42 HARV. ENV’T L. REV. 139, 140–141 (2018)

(describing ongoing declines in cost of storage); LAZARD, LAZARD’S

LEVELIZED COST OF STORAGE ANALYSIS—VERSION 6.0 (2020)

(noting “storage costs have declined across most use cases and

technologies, particularly for shorter-duration applications, in

part driven by evolving preferences in the industry”).

Nevertheless, the grid’s production capacity still far exceeds its

present storage capacity. Univ. of Mich. Ctr. for Sustainable Sys.,

GRID

ENERGY

STORAGE

(Sept.

2020),

U.S.

http://css.umich.edu/sites/default/files/US%20Grid%20Energy%

20Storage_CSS15-17_e2020.pdf (last visited Jan. 11, 2021)

(United States has 1,100 gigawatts of installed generation

capacity and just 23 gigawatts of storage capacity).

1

Technically, “grids.” There are three regional grids in the

contiguous United States: Eastern, Western, and Texas. Grid

Experts Amicus Br. 9; see also United States Dep’t of Energy,

North

American

Electric

Reliability

Corporation

2

78

“supreme engineering achievement of the 20th

century,” MASS. INST. OF TECH., THE FUTURE OF THE

ELECTRIC GRID 1 (2011) (formatting modified), and it

is an exceptionally complex, interconnected system.

“[A]ny electricity that enters the grid immediately

becomes a part of a vast pool of energy that is

constantly moving[.]” New York v. FERC, 535 U.S. 1,

7 (2002). That means that units of electricity as

delivered to the user are identical, no matter their

source. On the grid, there is no coal-generated

electricity or renewable-generated electricity; there is

just electricity. See Clean Power Plan, 80 Fed. Reg. at

64,692; Grid Experts Amicus Br. 7–8. Also, because

storing electricity for any length of time remains

technically challenging and often costly, the

components of the grid must operate as a perfectly

calibrated machine to deliver the amount of electricity

that all consumers across the United States need at

the moment they need it. Grid Experts Amicus Br. 8,

10–11; see also 80 Fed. Reg. at 64,677. “If [someone] in

Atlanta on the Georgia [leg of the] system turns on a

light, every generator on Florida’s system almost

instantly is caused to produce some quantity of

additional electric energy which serves to maintain

the balance in the interconnected system[.]” Federal

Power Comm’n v. Florida Power & Light Co., 404 U.S.

453, 460 (1972) (citation omitted). “Like orchestra

conductors signaling entrances and cut-offs, grid

operators use automated systems to signal particular

generators to dispatch more or less power to the grid

as needed over the course of the day, thus ensuring

Interconnections,

https://www.energy.gov/oe/downloads/northamerican-electric-reliability-corporation-interconnections (last

visited Jan. 11, 2021).

79

that power pooled on the grid rises and falls to meet

changing demand.” Grid Experts Amicus Br. 11.

Most generators of electricity on the American grid

create power by burning fossil fuels like coal, oil, and

natural gas. See United States Energy Information

Administration (EIA), Frequently Asked Questions:

What Is U.S. Electricity Generation by Energy Source?

(Nov.

2,

2020),

https://www.eia.gov/tools/faqs/faq.php?id=427&t=3

(last visited Jan. 11, 2021) (fossil fuels represented

62.6 percent of electricity generation in 2019). Some of

those power plants take a fossil fuel (usually coal) and

burn it in a water boiler to make steam. Other power

plants take a different fossil fuel (usually natural gas),

mix it with highly compressed air, and ignite it to

release a combination of super-hot gases. Either way,

that steam or superheated mixture is piped into giant

turbines that catch the gases and rotate at extreme

speeds. Those turbines turn generators, which spin

magnets within wire coils to produce electricity. EIA,

Electricity

Explained

(Nov.

9,

2020),

https://www.eia.gov/energyexplained/electricity/howelectricity-is-generated.php (last visited Jan 11, 2021).

2. Climate Change and the Federal

Government

Electrical power has become virtually as

indispensable to modern life as air itself. But

electricity generation has come into conflict with air

quality in ways that threaten human health and wellbeing when power generated by burning fossil fuels

emits carbon dioxide and other polluting greenhouse

gases into the air.

80

Since the late 1970s, the federal government has

focused “serious attention” on the effects of carbon

dioxide pollution on the climate. Massachusetts v.

EPA, 549 U.S. at 507. In 1978, Congress adopted the

National Climate Program Act, Pub. L. No. 95-367, 92

Stat. 601, which directed the President to study and

devise an appropriate response to “man-induced

climate processes and their implications[,]” id. § 3; see

Massachusetts v. EPA, 549 U.S. at 507–508. In

response, the National Academy of Sciences’ National

Research Council reported “no reason to doubt that

climate changes will result” if “carbon dioxide

continues to increase,” and “[a] wait-and-see policy

may mean waiting until it is too late.” Massachusetts

v. EPA, 549 U.S. at 508 (quoting CLIMATE RESEARCH

BOARD, CARBON DIOXIDE & CLIMATE: A SCIENTIFIC

ASSESSMENT, at viii (1979)).

In 1987, Congress passed the Global Climate

Protection Act, which found that “manmade

pollution[,]” including “the release of carbon dioxide,

* * * may be producing a long-term and substantial

increase in the average temperature on Earth[.]” Pub.

L. No. 100-204, Title XI, § 1102(1), 101 Stat. 1407,

1408 (codified at 15 U.S.C. § 2901 note). The Climate

Protection Act directed the EPA to formulate a

“coordinated national policy on global climate change.”

Id. § 1103(b), 101 Stat. at 1408; see Massachusetts v.

EPA, 549 U.S. at 508.

It was no until the Supreme Court’s 2007 decision

in Massachusetts v. EPA, however, that the Court

confirmed that carbon dioxide and other greenhouse

gas emissions constituted “air pollutant[s]” covered by

the Clean Air Act. See 549 U.S. at 528. The Supreme

Court explained that the Clean Air Act’s “sweeping

81

definition of ‘air pollutant’ includes ‘any air pollution

agent or combination of such agents, including any

physical, chemical . . . substance or matter which is

emitted into or otherwise enters the ambient air[.]’” Id.

at 528–529 (quoting 42 U.S.C. § 7602(g)). The Act, the

Supreme Court held, “is unambiguous” in that regard.

Id. at 529. “On its face, the definition embraces all

airborne compounds of whatever stripe, and

underscores that intent through the repeated use of

the word ‘any.’” Id. And “[c]arbon dioxide” and other

common greenhouse gases are “without a doubt”

chemical substances that are “emitted into . . . the

ambient air.” Id. (quoting 42 U.S.C. § 7602(g)).

Given that statutory command, the Supreme Court

ruled that the EPA “can avoid taking further action”

to regulate such pollution “only if it determines that

greenhouse gases do not contribute to climate change”

or offers some reasonable explanation for not resolving

that question. Massachusetts v. EPA, 549 U.S. at 533.

Taking up the mantle, the EPA in 2009 found

“compelling[]” evidence that emissions of greenhouse

gases are polluting the atmosphere and are

endangering human health and welfare by causing

significant damage to the environment. 2009

Endangerment Finding, 74 Fed. Reg. at 66,497; see id.

(“[T]he Administrator finds that greenhouse gases in

the atmosphere may reasonably be anticipated both to

endanger public health and to endanger public

welfare. * * * The Administrator has determined that

the body of scientific evidence compellingly supports

this finding.”); id. at 66,497–66,499. The EPA

concluded that “‘compelling’ evidence supported the

‘attribution of observed climate change to

anthropogenic’ [that is, human-influenced] emissions

82

of greenhouse gases[.]” AEP, 564 U.S. at 417 (quoting

74 Fed. Reg. at 66,518). The “[c]onsequent dangers of

greenhouse gas emissions,” the EPA determined,

include

increases in heat-related deaths; coastal

inundation and erosion caused by melting icecaps

and rising sea levels; more frequent and intense

hurricanes, floods, and other “extreme weather

events” that cause death and destroy

infrastructure; drought due to reductions in

mountain snowpack and shifting precipitation

patterns; destruction of ecosystems supporting

animals and plants; and potentially “significant

disruptions” of food production.

Id. (quoting 74 Fed. Reg. at 66,524–66,535).

Not long thereafter, the Supreme Court ruled that

the significant greenhouse gas pollution caused by

fossil-fuel-fired power plants is subject to regulation

under Section 7411 of the Clean Air Act. AEP, 564 U.S.

at 424 (holding that Section 7411 “speaks directly to

emissions of carbon dioxide from [fossil-fuel-fired]

plants[]”) (internal quotation marks omitted). The

Court concluded that the EPA’s expertise made it “best

suited to serve as primary regulator of greenhouse gas

emissions.” Id. at 428.

In 2015, with the 2009 carbon dioxide

endangerment finding continuing in effect, the EPA

reaffirmed that greenhouse gases “endanger public

health, now and in the future.” New Source Rule, 80

Fed. Reg. at 64,518. The EPA explained that, “[b]y

raising average temperatures, climate change

increases the likelihood of heat waves, which are

associated with increased deaths and illnesses[,]”

83

particularly among “[c]hildren, the elderly, and the

poor[.]” Id. at 64,517. In addition, the EPA found that

“[c]limate change impacts touch nearly every aspect of

public welfare.” Id. Among the “multiple threats

caused by human emissions of [greenhouse gases],”

the EPA pointed to climate changes that “are expected

to place large areas of the country at serious risk of

reduced water supplies, increased water pollution, and

increased occurrence of extreme events such as floods

and droughts.” Id. The EPA “emphasize[d] the urgency

of reducing [greenhouse gas] emissions due to * * *

projections that show [greenhouse gas] concentrations

climbing to ever-increasing levels in the absence of

mitigation[,]” citing independent assessments finding

that, “without a reduction in emissions, CO2

concentrations by the end of the century would

increase to levels that the Earth has not experienced

for more than 30 million years.” Id. at 64,518.

The federal government’s consistent recognition of

the danger to public health and welfare caused by

climate change, and the signal contribution of

greenhouse gas emissions from power plants to global

warming, continues to the present. In 2018, President

Trump’s administration concluded that “Earth’s

climate is now changing faster than at any point in the

history of modern civilization, primarily as a result of

human activities.” U.S. GLOBAL CHANGE RESEARCH

PROGRAM, FOURTH NATIONAL CLIMATE ASSESSMENT,

VOLUME II: IMPACTS, RISKS, AND ADAPTATION IN THE

UNITED STATES (REPORT-IN-BRIEF) 24 (2018). The

administration added that “the evidence of humancaused climate change is overwhelming and continues

to strengthen,” and “the impacts of climate change are

intensifying across the country[.]” Id. at 26 (emphasis

84

omitted). “Climate-related changes in weather

patterns and associated changes in air, water, food,

and the environment are affecting the health and wellbeing of the American people, causing injuries,

illnesses, and death.” Id. at 102. The administration’s

report concluded that urgent action is needed to

mitigate these dangers because “[f]uture risks from

climate change depend primarily on decisions made

today.” Id. at 13.

In preparing the ACE Rule, the EPA expressly

acknowledged its continued adherence to the 2015

endangerment finding. 84 Fed. Reg. at 32,533 (The

2015 New Source Rule “continues to provide the

requisite predicate for applicability of [Clean Air Act]

section 111(d).”); id. at 32,557 n.250; see also Emission

Guidelines for Greenhouse Gas Emissions from

Existing Electric Utility Generating Units; Revisions

to Emission Guideline Implementing Regulations;

Revisions to New Source Review Program: Proposed

Rule, 83 Fed. Reg. 44,746, 44,751 (Aug. 31, 2018)

(confirming that the 2015 New Source Rule “remains

on the books[]”); EPA Br. 217.

That endangerment finding provided the essential

factual foundation—and triggered a statutory

mandate—for the EPA to regulate greenhouse gas

emissions from both new and existing power plants.

See New Source Rule, 80 Fed. Reg. at 64,527, 64,529–

64,532; Clean Power Plan, 80 Fed. Reg. at 64,683–

64,690; see also 42 U.S.C. §§ 7411(b)(1)(A)–(B) (duty to

regulate new stationary sources that contribute

significantly to dangerous pollution identified in

endangerment finding), 7411(d)(1)(A)(ii) (duty to

regulate existing stationary sources that would be

regulated under § 7411(b) if they were new stationary

85

sources). Recall, Section 7411(b)(1)(A) provides that

the EPA Administrator “shall” regulate any category

of sources that, “in his judgment * * * causes, or

contributes significantly to, air pollution which may

reasonably be anticipated to endanger public health or

welfare.” The EPA endangerment findings reflect such

well-established risks.

C. THE CLEAN POWER PLAN

In the last decade, the EPA has heavily focused its

regulation of greenhouse gases on the power sector

because “power plants are far and away the largest

stationary-category source of greenhouse gases[,]” and

“power plants’ contributions to CO2 pollution * * *

dwarf[] other categories[.]” EPA Br. 169.

In October 2015, the EPA issued greenhouse gas

emission standards for new and modified power

plants. See New Source Rule, 80 Fed. Reg. at 64,510.

In so doing, the EPA found that, “[a]ll told, these fossil

fuel-fired [power plants] emit almost one-third of all

U.S. [greenhouse gas] emissions, and are responsible

for almost three times as much as the emissions from

the next ten stationary source categories combined.”

Id. at 64,531. That rule and finding remain in effect

and are not challenged in this litigation.

The EPA then turned to the regulation of existing

power plants. The EPA began, as the Clean Air Act

requires, by determining the best system of emission

reduction that has been adequately demonstrated for

existing fossil-fuel-fired power plants. See 42 U.S.C.

§ 7411(a)(1); Clean Power Plan, 80 Fed. Reg. at 64,718.

In identifying that system, the EPA chose to build on

the established grid system and methods of operation

already adopted by and familiar to the power sector.

86

See 80 Fed. Reg. at 64,725, 64,727–64,728. The

regulations and standards that the EPA formulated

came to be known as the Clean Power Plan. Id. at

64,663.

In the Clean Power Plan, the EPA determined that

a combination of three existing methods of emission

reduction—which the Plan referred to as building

blocks, 80 Fed. Reg. at 64,667—formed the “best

system of emission reduction,” 42 U.S.C. § 7411(a)(1).

First,

the

system

incorporated

heat-rate

improvements—that is, technological measures that

improve efficiency at coal-fired steam power plants

and, in that way, reduce the amount of coal that must

be burned to produce each watt of electricity to the

grid. 80 Fed. Reg. at 64,667.

Second, the system added the “substitut[ion of]

increased generation from lower-emitting existing

natural gas combined cycle units for generation from

higher-emitting affected steam generating” power

plants, which are mostly coal-fired. 80 Fed. Reg. at

64,667.

Third, the system prioritized the use of electricity

generated from zero-emitting renewable-energy

sources over electricity from the heavily greenhousegas-polluting fossil-fuel-fired power plants. 80 Fed.

Reg. at 64,667.

Those second and third methods of emission control

are often referred to as “generation shifting” because

the reductions occur when the source of power

generation shifts from higher-emission power plants

to less-polluting sources of energy. See Clean Power

Plan, 80 Fed. Reg. at 64,728–64,729. As the EPA

observed, such shifts in generation already occur all

87

the time as a matter of grid mechanics. That is, within

the grid’s “Constrained Least-Cost Dispatch” system,

production from “generators with the lowest variable

costs” will be dispatched “first, as system operational

limits allow, until all demand is satisfied.” Grid

Experts Amicus Br. 12. “[R]enewable energy

generators typically receive dispatch priority because

they have lower variable costs than fossil-fuel-fired

generators, which must purchase fuel.” Id. at 13

(citing 80 Fed. Reg. at 64,693). The EPA found that

most electricity is generated by diversified utilities

that could achieve most or all of the shift to lower- or

no-emission generation by reassessing the dispatch

priority of their own assets. See 80 Fed. Reg. at 64,796,

64,804.

As required by Section 7411(a)(1), the EPA then

quantified the degree of emission reduction achievable

under that three-tier best system for the relevant

fossil-fuel-fired power plants and translated it into

state-specific emissions goals for 2030. Clean Power

Plan, 80 Fed. Reg. at 64,824–64,825. To permit

additional flexibility, the Plan actually provided two

alternative types of targets: rate-based goals,

reflecting the rate of emission per certain amount of

generation, and mass-based goals, reflecting the total

emission from a State’s sources. Id. at 64,820, 64,824–

64,825 Tables 12, 13. The alternative metrics were an

added source of flexibility for States in choosing how

they would meet the federal limits.

Under the Clean Air Act, States could then propose

plans that set standards of performance for their

existing power plants that would meet those emission

goals. Clean Power Plan, 80 Fed. Reg. at 64,664. In

doing so, the States and their power plants were under

88

no obligation to use the three specific methods that the

EPA had identified in determining the best system of

emission reduction. Rather, consistent with Section

7411(d)’s cooperative federalism approach, States

were free to choose any measures, approaches, or

technologies that they deemed appropriate to meet the

federal guidelines. For example, they could adopt

technological controls already in use by some power

plants like carbon capture and sequestration (by

which carbon dioxide is captured from the plant’s flue

gas before it is emitted and then securely stored so it

cannot reach the atmosphere) or co-firing (where fuels

that release less carbon dioxide are burned alongside

fuels that release more to reduce the amount of the

latter used). See id. at 64,883. The EPA also suggested

that States might rely on emissions-trading programs

(often referred to as cap-and-trade) and other potential

compliance strategies. Id. at 64,887.

The EPA found that its proposed approach was

“consistent with, and in some ways mirrors, the

interconnected, interdependent and highly regulated

nature of the utility power sector[]” and its grid, as

well as “the daily operation of affected [power plants]

within this framework, and the critical role of utilities

in providing reliable, affordable electricity at all times

and in all places within this complex, regulated

system.” Clean Power Plan, 80 Fed. Reg. at 64,678.

The Clean Power Plan was challenged in this court.

West Virginia v. EPA, No. 15-1363 (and consolidated

cases) (D.C. Cir. Oct. 23, 2015). After we heard

argument en banc, but before we issued a decision,

that litigation was held in abeyance and ultimately

dismissed as the EPA reassessed its position. No. 151363, Docs. 1673071, 1806952.

89

D. THE ACE RULE

In 2019, the EPA issued a new rule that repealed

and replaced the Clean Power Plan: The Affordable

Clean Energy (ACE) Rule. See Repeal of the Clean

Power Plan; Emission Guidelines for Greenhouse Gas

Emissions from Existing Electric Utility Generating

Units;

Revisions

to

Emission

Guidelines

Implementing Regulations, 84 Fed. Reg. 32,520 (July

8, 2019). That Rule is the subject of this litigation.

1. Repeal of the Clean Power Plan

At the outset, the ACE Rule repealed the Clean

Power Plan. The EPA explained that it felt itself

statutorily compelled to do so because, in its view, “the

plain meaning” of Section 7411(d) “unambiguously”

limits the best system of emission reduction to only

those measures “that can be put into operation at a

building, structure, facility, or installation.” ACE

Rule, 84 Fed. Reg. at 32,523–32,524. Because the

Clean Power Plan’s best system was determined by

using some emission control measures that the EPA

characterized as physically operating off the site of

coal-fired power plants—such as some forms of

generation shifting and emissions trading—the EPA

concluded that it had no choice but to repeal the Plan.

Id. The EPA emphasized “that [its] action is based on

the only permissible reading of the statute and [it]

would reach that conclusion even without

consideration of the major question doctrine,” while

adding that application of that latter doctrine

“confirms the unambiguously expressed intent” of

Section 7411. Id. at 32,529.

90

2. Best System of Emission Reduction

Considering its authority under Section 7411 to be

confined to physical changes to the power plants

themselves, the EPA’s ACE Rule determined a new

best system of emission reduction for coal-fired power

plants only. The EPA left unaddressed in this

rulemaking (or elsewhere) greenhouse gas emissions

from other types of fossil-fuel-fired power plants, such

as those fired by natural gas or oil. ACE Rule, 84 Fed.

Reg. at 32,533.

The EPA’s proposed system relied solely on heatrate improvement technologies and practices that

could be applied at and to existing coal-fired power

plants. ACE Rule, 84 Fed. Reg. at 32,525, 32,537. The

EPA selected only seven heat-rate improvement

techniques as components of its best system. Id. at

32,537. Six of those measures were new-to-the-plant

technologies or “equipment upgrades.” Id. at 32,536–

32,537 (naming as part of the best system (1) adding

or upgrading neural networks and intelligent

sootblowers; (2) upgrading boiler feed pumps; (3)

replacing or upgrading air heater and duct leakage

control devices; (4) adding variable frequency drives in

feed pumps and induced-draft fans; (5) blade path

upgrades; and (6) redesigning or replacing

economizers). The seventh measure was the use of

“best operating and maintenance practices”

implementing heat-rate improvement techniques. Id.

at 32,537, 32,540. The EPA limited itself to techniques

that could be “applied broadly” to the Nation’s coalfired plants, which primarily amounted to upgrades to

existing equipment. Id. at 32,536.

91

The EPA explained that only five of the seven listed

techniques directly reduce the heat rate of power

plants. See ACE Rule, 84 Fed. Reg. at 32,538–32,540.

The other two techniques—replacing or upgrading the

boiler feed pump and installing variable frequency

drives—serve to reduce the amount of energy that a

power plant must use to run its own general

operations. Id. at 32,538–32,539.3 So those two

techniques do not make a power plant more efficient

in turning coal into power, but instead allow power

plants to dispatch more of the power they produce to

the grid rather than using it internally. Id.

The EPA identified two of its other chosen

techniques—blade path and economizer upgrades—as

the measures that, of all the considered technologies,

were “expected to offer some of the largest [heat-rate]

improvements.” ACE Rule, 84 Fed. Reg. at 32,537

(showing

table

predicting

highest

heat-rate

improvement range in economizer redesign or

replacements and blade path upgrades).4

The boiler feed pump is a device that is used to pump water

into the boiler. 84 Fed. Reg. at 32,538. It consumes a “large

fraction” of the power used to run the plant. Id. Because the boiler

feed pump requires so much energy, the EPA suggested that

“maintenance on these pumps should be rigorous to ensure both

reliability and high-efficiency operation.” Id. Variable frequency

drives “enable[] very precise and accurate speed control” of both

boiler feed pumps and “induced draft (ID) fans,” which “maintain

proper flue gas flow through downstream air pollutant control

equipment[.]” Id. at 32,539. This precise control would reduce the

excess use of fans and pumps, requiring less energy. See id.

3

“Blade path upgrades” consist of upgrades to the steam

turbine. Economizers are heat-exchange devices that “capture

waste heat from boiler flue gas” and use that captured heat to

help heat the boiler feedwater. Id. at 32,540.

4

92

But the EPA then stated that it expected some

power plants would not adopt those two technologies

because their use could trigger additional regulation

that the companies would find burdensome. 84 Fed.

Reg. at 32,537 (“[B]ased on public comments * * *,

[blade path upgrades and economizer redesign or

replacement]

are

[heat-rate

improvement]

technologies that have the most potential to trigger

[New Source Review] requirements.”). In fact, the EPA

did not model those two techniques in its regulatory

impact analysis precisely because it was unlikely that

they would be adopted. J.A. 1656–1657.

Finally, the EPA acknowledged that the proposed

technologies could create a “rebound effect.” ACE

Rule, 84 Fed. Reg. at 32,542. A rebound effect means

that net carbon dioxide emissions actually increase as

a result of the efficiency improvements made by power

plants. Id. This happens because, as the efficiency

upgrades make coal-based energy cheaper to produce,

coal-fired power plants will have an incentive to run

more often, thereby increasing their overall emissions.

Id. The EPA found that risk of increased emissions

irrelevant because its best system of emission

reduction “is aimed at improving a source’s emissions

rate performance at the unit-level,” rather than

reducing the overall volume of emissions by individual

sources. Id. at 32,543.

In choosing its seven proposed power-plant-based

heat-rate improvement technologies, the EPA

excluded from its best system several other suggested

methods of reducing emissions, including (1) natural

gas co-firing, repowering, and refueling; (2) biomass

co-firing; and (3) carbon capture and storage

technologies. ACE Rule, 84 Fed. Reg. at 32,543–

93

32,547. The EPA rejected biomass co-firing primarily

because “any potential net reductions in emissions

from biomass use occur outside of the regulated

source,” and so do not fall within the EPA’s reading of

Section 7411(d) as confined to emission limits imposed

at and to individual plants. Id. at 32,546. The EPA

excluded natural gas co-firing and carbon capture and

storage from its own best system, citing cost,

geographical, and operational concerns. Id. at 32,544–

32,545, 32,547–32,548. The EPA provided that sources

could choose to use natural gas co-firing or carbon

capture—but not biomass co-firing—to meet stateestablished standards of performance. Id. at 32,555.

3. Degree of Emission Limitation Achievable

Having determined its best system of emission

reduction, the EPA then purported to prescribe the

“degree of emission limitation achievable,” which

States could use to create their own standards of

performance. 42 U.S.C. § 7411(a)(1). What the EPA

produced as its emission guidelines was a chart that

prescribed heat-rate improvement “ranges” for each of

the EPA’s chosen heat-rate improvement technologies,

organized by power plants of differing sizes. ACE Rule,

84 Fed. Reg. at 32,537. The ranges show how much

heat-rate improvement can be “expected” from use of

each of the identified technologies. Id.

The EPA was explicit, though, that the “potential”

range of heat-rate reduction was only illustrative and

that the actual reduction for each of the EPA’s chosen

technologies would be “unit-specific” and would

“depend upon a range of unit-specific factors.” ACE

Rule, 84 Fed. Reg. at 32,537–32,538. In that way, the

ACE Rule made States responsible for evaluating

94

“[heat-rate

improvement]

potential,

technical

feasibility, and applicability for each of the [best

system of emission reduction] candidate technologies”

on a power-plant-by-power-plant basis. Id. at 32,538.

The ACE Rule expressly left States free to establish

their own standards of performance for their power

plants that “reflect a value of [heat-rate improvement]

that falls outside” the ranges provided in the EPA’s

chart. Id. (emphasis added). In other words, the

minimums listed in the EPA’s emission-reduction

chart were only suggestions.

The EPA explained that its non-mandatory ranges

of efficiency reduction were valid because the

applicability of the heat-rate improvement techniques

to different plants and the effectiveness of each power

plant’s existing technology may vary. See ACE Rule,

84 Fed. Reg. at 32,538 (stating that “not all” of the

technologies would be “applicable or warranted at the

level of a particular facility due to source-specific

factors such as the site-specific operational and

maintenance history, the design and configuration,

[or] the expected operating plans”).

The EPA predicted that its ACE Rule would reduce

carbon dioxide emissions by less than 1% from

baseline emission projections by 2035. J.A. 1651. That

calculation did not reflect emission increases that

could result from the rebound effect.

4. Implementing Regulations

The ACE Rule included some new regulations under

Section 7411(d). ACE Rule, 84 Fed. Reg. at 32,575–

32,584 (codified at 40 C.F.R. pt. 60, subpart Ba). As

relevant here, the regulations significantly extend the

States’ deadlines for the development and submittal of

95

their plans for emission reduction from nine months to

three years. See 40 C.F.R. § 60.23a(a)(1). Similarly,

the new regulations extend the EPA’s deadline to act

on those plans from four months to one year. 40 C.F.R.

§ 60.27a(b). The new regulations also extend the

EPA’s deadline to substitute its own plan for a noncompliant State’s plan from six months after the

submission deadline to two years after a finding that

the plan was incomplete, disapproved, or

unsubmitted. Seeb40 C.F.R. § 60.27a(c). Finally, the

requirement that States demonstrate compliance

progress is now triggered only where a State’s

compliance schedule stretches more than two years

from when its plan was originally due, as opposed to

the one-year period in the prior regulations. See 40

C.F.R. § 60.24a(d).

E. PETITIONS FOR REVIEW

Twelve petitions for review of the ACE Rule were

timely filed in this court and consolidated in this case.

Nos. 19-1140 (lead case), 19-1165, 19-1166, 19-1173,

19-1175, 19-1176, 19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188. The petitioners fall into three

groups.

The first grouping consists of petitioners who seek

review of the ACE Rule’s conclusion that Section 7411

only permits emission reduction measures that can be

implemented at and applied to the source. Those

petitioners include (i) a coalition of State and

municipal governments; (ii) power utilities; (iii) trade

associations from the renewable energy industry; and

96

(iv) several public health and environmental advocacy

groups.5

The second grouping is petitioners who challenge

the ACE Rule’s imposition of any emission limits as

unlawful because, in their view, (i) the EPA failed to

make a specific endangerment finding for carbon

dioxide emitted from existing power plants; (ii) the

EPA’s regulation of mercury emissions from coal-fired

power plants under Section 7412 precludes the

regulation of greenhouse gas emissions under Section

7411; and (iii) the EPA should have regulated carbon

dioxide from stationary sources, including power

plants, under the NAAQS program, 42 U.S.C.

§§ 7408–7410.

The third petitioner group is the Biogenic CO2

Coalition. They object only to the ACE Rule’s

determination that States may not count biomass cofiring as a method of complying with numerical

emission limits.

F. JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction to review these petitions

under the Clean Air Act. 42 U.S.C. § 7607(b)(1); see

also Sierra Club v. EPA, 955 F.3d 56, 61 (D.C. Cir.

2020).

We may set aside the ACE Rule if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 42 U.S.C. § 7607(d)(1)(C),

(d)(9)(A); see also Maryland v. EPA, 958 F.3d 1185,

1196 (D.C. Cir. 2020) (“[W]e apply the same standard

The public health and environmental advocacy groups also

challenge the third prong of the ACE Rule—the new

implementing regulations—as arbitrary and capricious.

5

97

of review under the Clean Air Act as we do under the

Administrative Procedure Act.”) (quoting Allied Local

& Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir.

2000)).

II. SECTION 7411

A. STATUTORY CONTEXT

In enacting the Clean Air Act, “Congress delegated

to EPA the decision whether and how to regulate

carbon-dioxide

emissions

from

powerplants.”

American Elec. Power Co. v. Connecticut (AEP), 564

U.S. 410, 426 (2011). As the Supreme Court has

observed, 42 U.S.C. § 7411 “speaks directly to” and

outlines the framework for that regulation. Id. at 424

(internal quotation marks omitted). Specifically,

Section 7411 marks out a pair of distinct regulatory

tracks for stationary sources of air pollutants. See 42

U.S.C. § 7411(a)(2), (6). The first track applies to new

sources, id. § 7411(b), and the second to existing

sources, id. § 7411(d). The statute calls for federalstate cooperation in regulating existing sources,

affording distinct roles to the federal and state

agencies in arriving at what Section 7411 calls

“standards of performance” for the emission of air

pollutants. Id. § 7411(a)(1), (c), (d)(1).

The regulatory regimes for new and existing sources

differ in the process by which such standards are

established—and the roles played by the respective

regulatory actors. The Act assigns the EPA the main

regulatory role in specifying the new-source pollution

controls: After the EPA determines that a particular

“category of sources * * * causes, or contributes

significantly to, air pollution which may reasonably be

anticipated to endanger public health or welfare,” it

98

publishes regulations establishing standards of

performance for new sources in that category. Id.

§ 7411(b)(1).

The process for regulating existing sources—which

raise distinct concerns about sunk costs and the health

and environmental effects of older processes—involves

more actors and steps. Regulation of a given category

of existing sources is triggered by the same EPA airpollution determination as for new sources. But for

existing sources the Act adopts a cooperativefederalism approach that leaves the States discretion

in determining how their State and industry can best

meet quantitative emissions guidelines established by

the EPA. See AEP, 564 U.S. at 424. Under Section

7411(d), the EPA and the States thus have distinct but

complementary roles subject to different procedures

and limitations. See 42 U.S.C. § 7411 (a)(1), (d)(1).

This case concerns the mechanics of that cooperative

framework for existing sources and, specifically,

restrictions the Agency now claims the statute

imposes on regulation of the air pollutants those

sources emit.

Two provisions of Section 7411 shape the existingsource framework. Subsection (a)(1) defines a

standard of performance, by reference to the “degree

of emission limitation” that the EPA determines is

“achievable,” as:

a standard for emissions of air pollutants which

reflects the degree of emission limitation

achievable through the application of the best

system of emission reduction which (taking into

account the cost of achieving such reduction and

any nonair quality health and environmental

99

impact

and

energy

requirements)

the

Administrator determines has been adequately

demonstrated.

42 U.S.C. § 7411(a)(1).

Subsection (d)(1), in turn, requires the

Administrator to set up a system by which willing

States can submit to the EPA “a plan which []

establishes standards of performance for any existing

source.” Id. § 7411(d)(1). Only “where [a] State fails to

submit a satisfactory plan” may the EPA step in and

directly promulgate standards of performance for

existing sources. Id. § 7411(d)(2).

Putting these two provisions together results in

what are best understood as three distinct steps

involving three sets of actors, each exercising a degree

of leeway in choice of control measures. See ACE Rule,

84 Fed. Reg. at 32,533, 32,549–32,550; Clean Power

Plan, 80 Fed. Reg. at 64,665–64,666.

First, under subsection (a)(1), the EPA determines

the “best system of emission reduction” that is

“adequately demonstrated,” taking into consideration

certain enumerated statutory criteria: cost, any nonair

quality health and environmental impacts, and energy

requirements. 42 U.S.C. § 7411(a)(1). The Agency then

issues emission guidelines that quantify the “degree of

emission

limitation

achievable

through

the

application of the best system” it has identified. Id.; 40

C.F.R. § 60.22a; see AEP, 564 U.S. at 424; EPA Br. 21–

22; ACE Rule, 84 Fed. Reg. at 32,523, 32,551.

Second, under subsection (d)(1), States issue

standards of performance for existing sources that

comply with the EPA’s emission guidelines and

“reflect” the achievable degree of emission limitation

100

set in those guidelines. AEP, 564 U.S. at 424; 42 U.S.C.

§ 7411(d)(1); 40 C.F.R. § 60.23a; see also Clean Power

Plan, 80 Fed. Reg. at 64,666. That the standards must

“reflect” the emission guidelines does not mean that

they must embody the methods EPA contemplated in

identifying the best system; rather, the States have

flexibility in determining the specifics of the standards

they issue so long as they accomplish the “degree of

emission limitation” the EPA calculated based on its

“best system.”

Third, the operators of regulated stationary sources

implement measures to ensure they will in practice

comply with the standards of performance their state

agency has established for them. See ACE Rule, 84

Fed. Reg. at 32,555. States often grant regulated

entities some discretion in how they meet those

standards. See, e.g., N.Y. COMP. CODES R. & REGS. TIT.

6 § 201-6.4(f) (2013) (describing the “operational

flexibility” afforded to Title V facility owners in New

York State to “propose a range of operating conditions

that will allow flexibility [for a facility] to operate

under more than one operating scenario”).

The issue before us arises at the first step—the

EPA’s determination of the best system of emission

reduction. In the Clean Power Plan, the Agency

determined that the best system was one that both

improved the heat rate at power plants and prioritized

generation from lower-emitting plants ahead of highemitting plants. Clean Power Plan, 80 Fed. Reg. at

64,707. The EPA then calculated specific emission

reductions achievable through application of that best

system that it published as emission guidelines for

States. Id. Had the Clean Power Plan gone into effect,

States would then have submitted to the EPA plans

101

based on the Agency’s guidelines that established

standards of performance for sources in their

jurisdictions, as provided for in subsection (d)(1). The

Clean Power Plan left States flexibility in the

measures they included in their plans, so long as they

achieved a reduction in emissions at least as great as

that achieved by EPA-established quantitative

guidelines. See, e.g., id. at 64,665, 64,756–64,757,

64,734–64,737, 64,832–64,837. And it further allowed

States, at their option, to give leeway to sources to

select alternate compliance measures to make the

requisite reductions. See id. at 64,834–64,835.

Based on what it now perceives to be an express and

unambiguous textual limitation in Section 7411 that

it says the Clean Power Plan overlooked, the EPA

repealed that Plan and replaced it with the ACE Rule.

The EPA’s new reading of the statute requires the

Agency, in modeling its “best system of emission

reduction,” to consider only emission-reduction

measures that “can be applied at and to a stationary

source.” ACE Rule, 84 Fed. Reg. at 32,534; see also id.

at 32,526–32,532.

We address below the EPA’s arguments regarding

how the text and structure of Section 7411 purportedly

support this limitation. That discussion is necessarily

somewhat abstract and technical. So, for starters, it is

worth bringing the matter more concretely into view.

Consider the effect the EPA’s new statutory

interpretation had on its resulting Rule. First, because

generation shifting is not, in the EPA’s view, a

measure that can be applied “at and to” any one

individual source, the ACE Rule limits the best system

of emission reduction to heat-rate improvements

102

alone. 84 Fed. Reg. at 32,534–32,535. Then, instead of

publishing emission guidelines quantifying emission

reductions achievable through application of the best

system, the ACE Rule identifies what the Agency has

determined are the most effective heat-rate

technologies available and a potential range of heatrate improvements achievable through application of

each of those technologies. Id. 32,535–32,537.

As under the Clean Power Plan, the ACE Rule

grants States flexibility in establishing standards of

performance for sources pursuant to the Agency’s

emission guidelines. Unlike the Clean Power Plan,

however, the ACE Rule does not require that the

States reach any specified minimum emission

reduction. Instead, States must merely “evaluate the

applicability of each of the candidate technologies” to

sources within their jurisdiction and report their

conclusions back to the Agency. ACE Rule, 84 Fed.

Reg. at 32,550, 32,538–32,561.

The Rule recites that regulated entities have “broad

discretion” in meeting state-established standards,

ACE Rule, 84 Fed. Reg. at 32,555, yet at the same time

the Rule deems impermissible any compliance

measure that cannot be applied at and to the source,

id. The ACE Rule thereby disqualifies compliance by,

for example, burning biofuel, id. at 32,557–32,558,

which emits recently captured carbon dioxide, in

contrast to fossil fuels’ release of carbon dioxide stored

away millions of years ago. See generally Center for

Biological Diversity v. EPA, 722 F.3d 401, 405–06

(D.C. Cir. 2013).

The question here is a relatively discrete one. We

are not called upon to decide whether the approach of

103

the ACE Rule is a permissible reading of the statute

as a matter of agency discretion. Instead, the sole

ground on which the EPA defends its abandonment of

the Clean Power Plan in favor of the ACE Rule is that

the text of Section 7411 is clear and unambiguous in

constraining the EPA to use only improvements at and

to existing sources in its best system of emission

reduction.

The EPA contends that its current interpretation is

“the only permissible interpretation of the scope of the

EPA’s authority.” ACE Rule, 84 Fed. Reg. at 32,535.

Our task is to assess whether Section 7411 in fact

compels the EPA’s new interpretation. And because

“deference to an agency’s interpretation of a statute is

not appropriate when the agency wrongly believes

that interpretation is compelled by Congress,” Peter

Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety

Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006) (quoting

PDK Labs., Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir.

2004) (internal quotation marks omitted)), we may not

defer to the EPA’s reading if it is but one of several

permissible interpretations of the statutory language,

see Negusie v. Holder, 555 U.S. 511, 521 (2009). That

is, the “regulation must be declared invalid, even

though the agency might be able to adopt the

regulation in the exercise of its discretion, if it ‘was not

based on the agency’s own judgment but rather on the

unjustified assumption that it was Congress’

judgment that such a regulation is desirable” or

required. Prill v. NLRB, 755 F.2d 941, 948 (D.C. Cir.

1985) (quoting FCC v. RCA Commc’ns, 346 U.S. 86, 96,

(1953) (formatting modified)); accord Arizona v.

Thompson, 281 F.3d 248, 259 (D.C. Cir. 2002) (quoting

Prill, 755 F.2d at 948).

104

For the reasons explained below, Section 7411 does

not, as the EPA claims, constrain the Agency to

identifying a best system of emission reduction

consisting only of controls “that can be applied at and

to a stationary source.” ACE Rule, 84 Fed. Reg. at

32,534. The EPA here “failed to rely on its own

judgment and expertise, and instead based its decision

on an erroneous view of the law.” Prill, 755 F.2d at

956. We accordingly must vacate and remand to the

Agency “to interpret the statutory language anew.”

Peter Pan Bus Lines, 471 F.3d at 1354.

1. Text

As just noted, Section 7411 contemplates distinct

roles for the EPA and the States in regulating existing

stationary sources. See 42 U.S.C. § 7411(a)(1)

(granting authority to the EPA to designate the best

system and determine achievable degree of emissions

reduction); id. § 7411(d)(1) (outlining the States’ role

in setting standards of performance for their sources).

Nevertheless, the EPA now contends that language in

Section 7411(a)(1) and (d)(1) “unambiguously limits

the [best system of emission reduction] to those

systems that can be put into operation at a building,

structure, facility, or installation.” ACE Rule, 84 Fed.

Reg. at 32,524 (emphasis in original); see id. at 32,528;

EPA Br. 70.

In the Agency’s current view, the only pollutioncontrol methods the Administrator can consider in

selecting the “best system of emission reduction”

within the meaning of Section 7411(a) are add-ons or

retrofits confined to the level of the individual fossilfuel-fired power plant. ACE Rule, 84 Fed. Reg. at

32,524. That is so even though the record before the

105

EPA shows that generation shifting to prioritize use of

the cleanest sources of power is one of the most costeffective means of reducing emissions that plants have

already adopted and that have been demonstrated to

work, and that generation shifting is capable of

achieving far more emission reduction than controls

physically confined to the source. See, e.g., Clean

Power Plan, 80 Fed. Reg. at 64,693, 64,728–64,729; 2

J.A. 598; Grid Experts Amicus Br. 13–16. In other

words, the EPA reads the statute to require the

Agency to turn its back on major elements of the

systems that the power sector is actually and

successfully using to efficiently and cost-effectively

achieve the greatest emission reductions. See Grid

Experts Amicus Br. 22 (observing that the ACE Rule

“imposes greater abatement costs on industry than

other approaches would to achieve the same effect”).

The Clean Power Plan could not stand, the EPA now

concludes, because its consideration of generation

shifting exceeded the Agency’s narrow authority under

Section 7411’s plain text. ACE Rule, 84 Fed. Reg. at

32,526–32,527. In promulgating the Clean Power

Plan, the EPA read “system of emission reduction” to

mean “a set of measures that work together to reduce

emissions and that are implementable by the sources

themselves.” Clean Power Plan, 80 Fed. Reg. at

64,762. And it concluded that both heat-rate

improvements

and

generation

shifting

“are

components of a best system of emission reduction for

the affected [electricity generating units] because they

entail actions that the affected [units] may themselves

undertake that have the effect of reducing their

emissions.” Id. at 64,709 (internal quotation marks

omitted).

106

All of that is wrong, the EPA has since decided.

“[T]he Agency now recognizes that Congress ‘spoke to

the precise question’ of the scope of [42 U.S.C.

§ 7411](a)(1) and clearly precluded the unsupportable

reading of that provision asserted in the [Clean Power

Plan].” ACE Rule, 84 Fed. Reg. at 32,527. The EPA

insists that its current reading is mandated by the

statutory text.

It is the EPA’s current position that is wrong.

Nothing in Section 7411(a)(1) itself dictates the “at

and to the source” constraint on permissible

ingredients of a “best system” that the Agency now

endorses. For the EPA to prevail, its reading must be

required by the statutory text. Peter Pan Bus Lines,

471 F.3d at 1354. It fails for at least three reasons, any

of which is alone fatal.

First, the plain language of Section 7411(a)(1), the

root of the EPA’s authority to determine the best

system, announces its own limitations. Those

limitations simply do not include the source-specific

caveat that the EPA now interposes and casts as

unambiguous.

Second, there is no basis—grammatical, contextual,

or otherwise—for the EPA’s assertion that the sourcespecific language of subsection (d)(1) must be read

upstream into subsection (a)(1) to equate the EPA’s

“application of the best system” with the controls

States eventually will apply “at and to” an individual

source. As the EPA at times acknowledges, the two

subsections address distinct steps in the regulatory

process, one focused on the EPA’s role and the other

focused on the States’. Any question as to which

limitations pertain to each regulatory actor cannot

107

reasonably be said to have been resolved by Congress

in favor of the unambiguous meaning the EPA now

advocates.

Third, even if subsections (a)(1) and (d)(1) were read

together in the way the EPA proposes, they would not

confine the EPA to designating a best system

consisting of at-the-source controls. The EPA’s entire

theory hinges on the Agency’s unexplained

replacement of the preposition “for” in “standards of

performance for any existing source” with the

prepositions “at” and “to.” Yet the statutory text calls

for standards of performance “for” existing sources.

Emission-reduction measures “for” sources may

readily be understood to go beyond those that apply

physically “at” and “to” the individual source.

Emissions trading, for example, might be a way “for”

a source to meet a standard of performance.

The shortcomings of its statutory interpretation are

more than enough to doom the Agency’s claim that

Section 7411 announces an unambiguous limit on the

best system of emission reduction. The issue is not

whether the EPA’s counterarguments to each of these

points might show its interpretation to be permissible

as an exercise of discretion. Again, the EPA has not

claimed to be exercising any such discretion here. It

insists instead that the unambiguous terms of the

statute tie its hands.

After reviewing what Section 7411 clearly says

about the nature and limits of the “best system of

emission reduction” that Congress called on the EPA

to determine, we take up each of the EPA’s arguments

to show why Section 7411 does not unambiguously

support its at-the-source restriction.

108

a. Section 7411(a) Defines the Best System

The EPA acknowledges, as it must, that Section

7411(a) is the source of the EPA’s authority and

responsibility to determine the best system of

emission reduction for existing sources and set

corresponding emission guidelines. See, e.g., ACE

Rule, 84 Fed Reg. at 32,534. Indeed, that is the only

subsection in which the term “best system of emission

reduction” appears. But the EPA offers no reading of

subsection (a)(1) itself.

Section 7411(a)(1) expresses Congress’ expectation

that the EPA will study all “adequately demonstrated”

means of emission reduction. And it directs the EPA to

draw on “adequately demonstrated” methods to

determine the “best” system to reduce emissions.

Congress imposed no limits on the types of measures

the EPA may consider beyond three additional

criteria: cost, any nonair quality health and

environmental impacts, and energy requirements. 42

U.S.C. § 7411(a)(1). Congress largely called on the

expert judgment of the EPA to determine for a

particular source category and pollutant which

already-demonstrated methods compose the “best

system.”

Because it did not set out separate definitions for

either “system” or “best,” those words take their

ordinary meanings. See Sandifer v. United States Steel

Corp., 571 U.S. 220, 227 (2014). Webster’s Dictionary

offers a representative definition of “system”

contemporaneous with the Act’s adoption: “[A]

complex unity formed of many often diverse parts

subject to a common plan or serving a common

THIRD

NEW

purpose.”

System,

WEBSTER’S

109

INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED 2322 (2d ed. 1968). The

superlative “best” as applied to a “system of emission

reduction” plainly places a high priority on efficiently

and effectively reducing emissions. See Best, MerriamWebster,

https://www.merriamwebster.com/dictionary/best (last visited Jan. 11,

2021) (“excelling all others,” “offering or producing the

greatest advantage, utility, or satisfaction”).

The ordinary meanings of these terms “reflect[] an

intentional effort to confer the flexibility necessary”

for effective regulation appropriate to the context.

Massachusetts v. EPA, 549 U.S. 497, 532 (2007). As the

Supreme Court has acknowledged, “the degree of

agency discretion that is acceptable varies according

to the scope of the power congressionally conferred.”

Whitman v. American Trucking Ass’n, 531 U.S. 457,

475 (2001); see Gaughf Props., L.P. v. Commissioner,

738 F.3d 415, 424–425 (D.C. Cir. 2013); Sabre, Inc. v.

Department of Transp., 429 F.3d 1113, 1122, 1124–

1125 (D.C. Cir. 2005). Congress in Section 7411

deliberately charged the EPA with identifying the best

system of emission reduction to keep pace with

escalating threats to air quality, and, within expressed

limits, empowered it to make the judgments how best

to do so.

The Agency simply ignores how the statutory text

defines the “best system of emission reduction,”

asserting instead that definitional language does not

confer regulatory authority. See, e.g., EPA Br. 58–59

(“[I]t is not Section 7411(a) (‘Definitions’) that grants

the agency authority to act.”). Section 7411(a)(1)’s

designation as a definitional provision deprives it of

standalone meaning, the EPA contends. The EPA

110

instead reads it as “subsidiary” to Section 7411(d),

regarding state standards of performance for existing

sources. EPA Br. 58. But Congress does indeed use

definitional provisions to confer regulatory authority.

See, e.g., Weinberger v. Bentex Pharm., Inc., 412 U.S.

645, 652–653 (1973) (holding that the statutory

definition of “new drug” confers authority upon the

FDA). That is precisely what it did in Section

7411(a)(1). See Sierra Club v. Costle, 657 F.2d 298, 321

(D.C. Cir. 1981) (describing Section 7411(a)(1) as

authorizing the EPA to determine the best system of

emission reduction and regulate accordingly); 40

C.F.R. 60.22a.

The EPA offers no support—apart from its own

newfound version of “statutory interpretation 101,”

EPA Br. 65—for ignoring how the Act itself defines

and limits the “best system” determination. Nor does

it offer any sound justification for importing language

from a different provision governing States’

“standards of performance.” The EPA’s “at and to the

source” limitation on “best system” finds no footing in

the text of Section 7411(a)(1).

b. Section 7411(d)(1) Does Not Change

the Definition

Even taking the EPA’s argument on its own terms

does not work because Section 7411(d)(1)’s text and

statutory context get it no further. To support its

narrow reading of the EPA’s authority to determine

the “best system,” the Agency focuses on the phrase

“through the application of” in Section 7411(a)(1).

That provision defines a “standard of performance” as

an emission standard that “reflects the degree of

emission

limitation

achievable

through

the

111

application of the best system of emission reduction[.]”

The EPA says the “application” phrase “requires both

a direct object and an indirect object.” ACE Rule, 84

Fed. Reg. at 32,524; accord EPA Br. 66–68. And, it

continues, Congress cannot have meant to leave its

indirect object undefined. The EPA says that,

grammatically speaking, someone must apply

something (the direct object) to something else (the

indirect object). EPA Br. 115–116, 118–119. It then

picks its preferred, narrow indirect object from a

different statutory subsection and casts that object as

the only statutorily permissible choice. See 84 Fed

Reg. at 32,524.

The EPA locates an indirect object in Section

7411(d). Unlike subsection (a)(1), subsection (d)—

entitled “Standards of performance for existing

sources”—explicates an indirect object. 42 U.S.C.

§ 7411(d). Borrowing from subsection (d), then, the

EPA imports into subsection (a)(1) a limitation of the

“best system of emission reduction” to measures that

can be applied “to and at an individual existing

source—i.e., any building or facility subject to

regulation.” EPA Br. 58 (emphasis added); see also

ACE Rule, 84 Fed. Reg. at 32,534.

But the language to which the EPA points supplies

the indirect object only of “standards of performance”

adopted by States pursuant to Section 7411(d)(1), not

of the EPA’s “best system of emission reduction”

determined pursuant to Section 7411(a)(1). The latter

phrase does not even appear in Section 7411(d)(1). To

reach its preferred result, the Agency invokes surmise

rather than statutory text. It insists that the

limitations on States’ standards of performance in

Section 7411(d)(1)—the second step in the regulatory

112

process—must be read upstream to limit the EPA’s

“best system of emission reduction” in subsection

(a)(1). Nothing in the statute so requires.

In the text, States’ standards of performance need

only “reflect” the emission guidelines (or “degree of

emission limitation achievable”) the EPA calculates

based on the “best system of emission reduction” it

determines. As laid out in the statute and explained

above,

those

state-developed

“standards

of

performance” follow on but are legally and

functionally distinct from the “best system” that the

EPA develops. The EPA is simply wrong that the

statute clearly and unambiguously requires that the

unstated indirect object of “application of the best

system of emission reduction” under Section

7411(a)(1) must be the same as the indirect object of

States’ standards of performance as stated in Section

7411(d)(1).

Neither does the grammatical rule the EPA invokes

to bridge the gap between these subsections hold up.

The crux of the EPA’s textual argument is that “the

verb ‘to apply,’ requires both a direct object and an

indirect object.” ACE Rule, 84 Fed. Reg. at 32,524;

EPA Br. 66–68. The first obvious problem is that, in

the relevant passage of Section 7411(a)(1), Congress

did not use the verb “apply,” but rather the noun

“application.” The EPA acknowledges this distinction

in passing in the ACE Rule, but dismisses it without

discussion, offering only that “‘application’ is derived

from the verb ‘to apply[.]’” 84 Fed. Reg. at 32,524. That

is, of course, true, as far as it goes. The phrase

“application of the best system of emission reduction”

is what is called a nominalization, a “result of forming

a noun or noun phrase from a clause or a verb.”

113

Nominalization,

Merriam-Webster

Dictionary

https://www.merriamwebster.com/dictionary/nominalization (last visited

Jan. 11, 2021). Grammar assigns direct or indirect

objects only to verbs—not nouns. No objects are

needed to grammatically complete the actual

statutory phrase. So much for the grammatical

imperative.

Even if we were to take the EPA’s leap to the verb

“apply” from the noun “application” that actually

appears in the statute, the Agency comes up short. The

EPA is incorrect to insist that the verb “apply”

requires an indirect object. There is nothing

ungrammatical about the sentence “In its effort to

reduce emissions, the EPA applied the best system of

emission reduction.” The verb “apply,” like its

nominalization, may properly be used in a sentence

with or without an explicit indirect object. See Apply,

THOMAS HERBST ET AL., A VALENCY DICTIONARY OF

ENGLISH 41–42 (Ian F. Roe et al. eds., 2004) (listing

examples of grammatically correct uses with and

without direct and indirect objects).6

The EPA’s shift from nominalization to verb does

not, in any event, accomplish much. Either way, the

6

Take, for instance, the following sentences: “It appears to

violate GATT regulations, but the rules for applying the

regulations are vague and the Netherlands has so far escaped

censure”; “This information may not apply in Scotland, which has

a different legal system.” Apply, THOMAS HERBST ET AL., A

VALENCY DICTIONARY OF ENGLISH 41–42 (examples from sections

D1 and D5). Additional examples abound. See, e.g., Apply,

OXFORD ENGLISH DICTIONARY (3d ed. 2008) (def. I.9) (“Crest

bought the firm[,] and, by applying its marketing and distribution

muscle, has turned it into a $200 million category killer.”).

114

lack of an explicit indirect object in Section 7411(a)(1)

does not require that one be borrowed from Section

7411(d)(1). Equally logical indirect objects include, for

example, the entire category of stationary sources, or

the air pollutant to be limited. In any event, the best

system cannot reasonably be said to be unambiguously

applicable only to the indirect object the EPA suggests.

The EPA faults the Clean Power Plan for reading

“application of” to be functionally equivalent to

“implementation of,” because “implement” “does not

require an indirect object.” EPA Br. 73. But neither

does “application.” So “application” textually supports

adoption of the Clean Power Plan just as well as

“implementation.” Again, so much for grammar

mandating the EPA’s result.

The argument fails either way, but the fact is that

Congress used the nominalization “application of” the

best system of emission reduction. A nominalization

enables the drafter to leave certain information

unspecified—namely, who is acting and where their

action is directed. See, e.g., George D. Gopen, Who

Done It? Controlling Agency in Legal Writing, Part II,

39 LITIG. 12, 12–13 (Spring 2013) (describing how

nominalizations create ambiguity). Legal writers,

including Congress, employ nominalizations all the

time. And they do so with the full awareness that their

use preserves flexibility.

Congress reasonably built in leeway for the EPA to

exercise technical expertise in applying Section 7411,

given the variety of pollution problems that it covers

and the importance of allowing States maneuvering

room under the cooperative federalism scheme.

Congress may avoid specifying subjects, objects, or

115

other grammatical information because a degree of

adaptability suits the statutory role and purpose. One

way Congress can denote that it has delegated to an

agency’s judgment the task of filling in the on-theground details of a statutorily defined program is by

declining

to

dictate

grammatically

optional

information, see Lehrfeld v. Richardson, 132 F.3d

1463, 1465–1466 (D.C. Cir. 1998); Appalachian Power

Co. v. EPA, 135 F.3d 791, 808–810 (D.C. Cir. 1998),

including an indirect object that the rules of grammar

do not require be explicitly stated, see, e.g., Peter Pan

Bus Lines, 471 F.3d at 1353–1354.

Even if an implicit indirect object can be surmised,

there is more than one plausible candidate here, and

the statute does not unambiguously dictate the object.

There certainly is no rule—grammatical or

otherwise—that the specific indirect object must be

the one to which the EPA now points. At the least,

other contextually appropriate indirect objects of the

“best system” include the source category or the

emissions. The EPA has failed to establish that the

sole and unambiguous indirect object must be the

individual source. The EPA, of course, “may fill the

gap[s] the Congress left,” and any such “regulation is

entitled to deference.” Gaughf Props., 738 F.3d at 424;

see also Appalachian Power, 135 F.3d at 811–812. But

in the ACE Rule and in its briefing here, the EPA has

assiduously denied the existence of any gap at all.

That was error.

c. EPA’s Reading Itself Falls Short

The third and equally fatal flaw in the EPA’s textual

analysis is its unexplained substitution of the

prepositions “at” and “to” where the text it would have

116

us borrow from subsection (d)(1) actually says “for” in

referencing “standards of performance for any existing

source.” See, e.g., ACE Rule, 84 Fed. Reg. at 32,534. As

we do with any words enacted by Congress, we must

give effect to the preposition it chose. Cf.

Telecommunications Res. & Action Ctr. v. FCC, 801

F.2d 501, 517–518 (D.C. Cir. 1986) (finding decisive

Congress’ use of the preposition “under” instead of

“by”). The word Congress actually used—“for” the

source—lacks the site-specific connotation on which

the EPA’s case depends.

In its brief, the EPA presents the compound

constr

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