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,
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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
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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
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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
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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.”
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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
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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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