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

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

IN THE

Supreme Court of the United States

________________

STATE OF WEST VIRGINIA, ET AL.,

v.

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

________________

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

_________________________________________________

BRIEF OF THE CATO INSTITUTE AND

MOUNTAIN STATES LEGAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

_________________________________________________

Joseph A. Bingham

MOUNTAIN STATES

LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80237

(303) 292-2021

jbingham@mslegal.org

December 16, 2021

Ilya Shapiro

Counsel of Record

William Yeatman*

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar

under D.C. App. R. 46-A.

Supervised by a D.C. Bar

member.

i

QUESTION PRESENTED

Whether 42 U.S.C. § 7411(d), an ancillary

provision of the Clean Air Act, authorizes the

Environmental Protection Agency to issue significant

rules—including those capable of reshaping the

nation’s

electricity

grids

and

unilaterally

decarbonizing virtually any sector of the economy—

without any limits on what the agency can require so

long as it considers cost, non-air impacts, and energy

requirements?

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 4

I.

THE COURT MUST ESTABLISH A

ROBUST MAJOR QUESTIONS

DOCTRINE TO PROTECT

RELIANCE INTERESTS FROM THE

LEGAL INSTABILITY CAUSED BY

PRESIDENTIAL ADMINISTRATION ....... 4

II. A PROPOSED FRAMEWORK TO

IDENTIFY “MAJOR” RULES ..................... 7

A. Is the Agency “Filling in the

Details” or “Answering Major

Questions”?............................................... 8

B. Is the Agency Action “Historic”? ............. 9

C. Did Congress Try to Do What the

Agency Is Doing?.................................... 10

CONCLUSION ........................................................ 11

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Chamber of Commerce v. DOL,

885 F.3d 360 (5th Cir. 2018) .................................. 7

DHS v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 ........................................................ 6

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................ 8

FERC v. Elec. Power Supply Ass'n, 577 U.S. 260

(2015) ...................................................................... 7

Paul v. United States, 140 S. Ct. 342 (2019) ............. 2

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) .......................... 8, 11

Util. Air Regulatory Group v. EPA,

573 U.S. 302 (2014) .............................................. 10

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................ 9

Statutes

42 U.S.C. § 108 ........................................................... 8

42 U.S.C. § 109 ........................................................... 8

42 U.S.C. § 112(b)....................................................... 8

Clean Air Act Section 111(d) ............................ passim

Regulations

80 Fed. Reg. 64,662 (Oct. 23, 2015) ..................... 5, 10

84 Fed. Reg. 32,520 (July 8, 2019)............................. 5

iv

Page(s)

Exec. Order 13,990, 86 Fed. Reg. 7,037

(Jan. 25, 2021) ........................................................ 5

Exec. Order No. 13,783, 82 Fed. Reg. 16,093

(Mar. 31, 2017)........................................................ 5

Other Authorities

Appl. by 29 States and State Agencies for

Immediate Stay of Final Agency Action During

Pendency of Petitions for Review,

West Virginia, et al. v. EPA, et al.,

136 S. Ct. 1000 (2016) (No. 15A773) ...................... 7

Appl. of Utility and Allied Parties for Immediate

Stay of Final Agency Action Pending Appellate

Review at 2, West Virginia, et al. v. EPA, et al.,

136 S. Ct. 1000 (2016) (No. 15A773) ...................... 6

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245 (2001) ............................... 5

Jennifer A. Dlouhy, “Biden Climate Czar Vows

Clean-Energy Edict If Congress Fails,”

Bloomberg Green, July 13, 2021 ............................ 3

Presidential Memorandum—Power Sector Carbon

Pollution Standards (June 25, 2013) ..................... 5

Remarks by the President on the Clean Power Plan

(Aug. 3, 2015) .......................................................... 9

Tamara Keith, “Wielding a Pen and a Phone,

Obama Goes It Alone,” NPR, Jan. 20, 2014 .......... 4

White House Briefing Room, “Fact Sheet: List of

Agency Actions for Review” (Jan. 20, 2021) .......... 7

v

Page(s)

White House Briefing Room, “Fact Sheet: President

Biden Tackles Methane Emissions, Spurs

Innovations, and Supports Sustainable

Agriculture to Build a Clean Energy Economy and

Create Jobs” (Nov. 2, 2021) .................................. 10

White House Briefing Room, “U.S. to Sharply Cut

Methane Pollution that Threatens the Climate

and Public Health” (Nov. 2, 2021) ......................... 3

1

INTEREST OF AMICI CURIAE 1

The Cato Institute was established in 1977 as a

nonpartisan public policy foundation dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was

established to restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences and forums, and

produces the annual Cato Supreme Court Review.

The Mountain States Legal Foundation is a

nonprofit, public-interest law firm dedicated to

bringing before the courts issues vital to the defense

and preservation of individual liberties, the right to

own and use property, the free enterprise system, and

limited and ethical government. Since its creation in

1977, MSLF attorneys have been active in litigation

regarding the proper interpretation and application of

statutory, regulatory, and constitutional provisions.

This case interests amici because the decision

below threatens individual liberty by encouraging the

EPA to resolve major questions of economic and social

significance without a clear delegation from Congress.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In a line of modern cases, the Court has

established a presumption against agencies’

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was

authored by any party’s counsel, and no person or entity other

than amici funded its preparation or submission.

2

exercising implied authority to promulgate policies

“of great economic and political importance.” See Paul

v. United States, 140 S. Ct. 342 (2019) (statement of

Kavanaugh, J.) (citing precedents). This interpretive

principle is known as the major questions doctrine.

Here, however, the D.C. Circuit established the

opposite presumption, something akin to an “antimajor questions doctrine.” Despite this Court’s

repeated calls for interpretive caution in the absence

of statutory clarity, the split panel below focused on

the “striking . . . paucity of restrictive language” in the

operative ambiguity, J.A. 120, which the majority

took for “muscle that Congress deliberately built up,”

J.A. 131. As for any economic or political fallout, the

majority

reasoned

that

such

“regulatory

consequences” are immaterial, because they “are a

product of the greenhouse gas problem, not of … the

solution.” J.A. 148. Therefore, under the majority’s

tautological logic, any climate regulation must be

major, because global warming is a major problem.

Putting it all together, the majority concluded that

the interstices of the statute provide “ample

discretion” to remake the electricity grid. J.A. 118.

It’s worth elaborating on the ultra-attenuated

textual basis for the D.C. Circuit’s far-reaching

conclusions. The majority below described the

relevant delegation—Clean Air Act Section 111(d)—

as a “gap-filler” that “is intended to reach pollutants

that do not fit squarely within the ambit of the Act’s”

primary programs. J.A. 76, 119. Within this

“catchall,” the court located the agency’s power in its

authority to “fill the gap[s] the Congress left.” J.A.

115. The upshot is that the panel read the statute to

confer massive authority in the “gaps” of a “gap-filler.”

3

No doubt emboldened by the D.C. Circuit, White

House National Climate Adviser Gina McCarthy

recently warned that if Congress doesn’t enact gridwide production quotas for low-carbon power

producers, then the EPA will act on its own—based on

the statutory provision at issue in the instant case.

See Jennifer A. Dlouhy, “Biden Climate Czar Vows

Clean-Energy Edict If Congress Fails,” Bloomberg

Green, July 13, 2021, https://bloom.bg/3zgd9Kk.

Meanwhile, the Biden administration just announced

that it will exercise Clean Air Act section 111(d) to

achieve an “historic” expansion of regulatory

authority over more than 300,000 existing oil and gas

producers. See White House Briefing Room, “U.S. to

Sharply Cut Methane Pollution that Threatens the

Climate and Public Health” (Nov. 2, 2021),

https://bit.ly/3rOoaCf.

As an immediate matter, the outcome of this case

will determine whether the EPA can construe the

gaps of a gap-filler into the Clean Air Act’s most

powerful authority. Yet the overall stakes are far

greater. This case is illustrative of an alarming trend

whereby presidents turn to implied authority,

typically in long-extant statutes, to achieve what

Congress fails to do.

Of course, the Court is attuned to the conspicuous

constitutional problems attendant to interstitial

lawmaking of this sort, as demonstrated by the

development of the major questions doctrine. Setting

aside these constitutional concerns, a robust major

questions doctrine is needed to preserve reliance

interests. What one president does, another will undo,

and so on. The more significant the policy, the higher

the political stakes, which only increases the odds it

4

will become a political football. Here, the entire

electricity industry is caught in a dizzying back-andforth; more broadly, the federal government is

becoming an increasingly unreliable partner to the

private sector and state governments.

In sum, reversing the D.C. Circuit is only a start.

To protect reliance interests, this Court must build

out its major questions principle. And to assist the

Court with this doctrinal development, amici propose

a framework for resolving an issue that has bedeviled

lower courts: how to identify a “major” rule.

ARGUMENT

I. THE COURT MUST ESTABLISH A ROBUST

MAJOR

QUESTIONS

DOCTRINE

TO

PROTECT RELIANCE INTERESTS FROM

THE LEGAL INSTABILITY CAUSED BY

PRESIDENTIAL ADMINISTRATION

“It’s difficult to pass laws—on purpose.” J.A. 219

(Walker, J., dissenting). In requiring legislation to

endure bicameralism and presentment before taking

effect, the Founders intended that “[m]ajor

regulations and reforms either reflect a broad

political consensus, or they do not become law.” Id.

By contrast, presidential policymaking is much

simpler. Thanks to overbroad delegations from

Congress, presidents can achieve law-like regulations

merely by wielding their “pen and phone.” See

Tamara Keith, “Wielding a Pen and a Phone, Obama

Goes

It

Alone,”

NPR,

Jan.

20,

2014,

https://n.pr/3rOXUYw. All it takes is an executive

order calling on an agency to “interpret” new

authority in old statutes.

5

Due in large part to the relative ease of executive

policymaking, “[w]e live today in an era of

presidential

administration.”

Elena

Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245,

2246 (2001). In contemporary American government,

it is the presidency, rather than Congress, that leads

“in setting the direction and influencing the outcome

of” administrative policymaking. Id. Because

“regulatory activity . . . [is] more and more an

extension of the President’s own policy and political

agenda,” id. at 2248, there occurs a wholesale shift in

administrative

policymaking

whenever

the

presidency switches hands—especially when there’s a

party changeover.

This case provides a quintessential example of

presidential

administration.

Faced

with

congressional inaction on climate policy, President

Obama ordered the EPA to regulate power plants,

leading to the Clean Power Plan. See Presidential

Memorandum—Power Sector Carbon Pollution

Standards (June 25, 2013), https://bit.ly/3EVALHA;

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

President Trump commanded the EPA to undo that

order, resulting in the Affordable Clean Energy rule.

See Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar.

31, 2017); 84 Fed. Reg. 32,520 (July 8, 2019). And now

the pendulum has swung back: On his first day in

office, President Biden called for an “immediate[]

review” of his predecessor’s policy. See Exec. Order

13,990, 86 Fed. Reg. 7,037, 7,037 (Jan. 25, 2021).

To be sure, voters should guide administrative

policy, and “presidential leadership establishes an

electoral link between the public and the

bureaucracy.” Kagan, supra, at 2332. In most

6

instances, therefore, the policy flip-flops inherent to

presidential administration reflect a necessary

tradeoff between efficiency and accountability.

But not always. For a narrow class of major

policies, such as remaking the electrical grid, pingpong policymaking is too unsettling to pass

constitutional muster. Unless the Court stabilizes the

law, our present era of presidential administration

will bring about a crisis of “reliance interests.” See

DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891

(2020) (explaining importance of reliance interests to

judicial review of administrative policymaking).

Here, for example, the regulated parties—the

entire electricity sector—comprise a capital-intensive

industry that “require[s] many years to plan, develop,

site, and construct the billions of dollars of new

facilities and new infrastructure required to

implement EPA’s mandates.” See Appl. of Utility and

Allied Parties for Immediate Stay of Final Agency

Action Pending Appellate Review at 2, West Virginia,

et al. v. EPA, et al., 136 S. Ct. 1000 (2016) (No.

15A773). At present, this crucial industry is caught in

a spin cycle. Democrat presidents claim that § 111(d)

confers implicit authority to remake the electricity

sector; Republican presidents deny such authority

exists. In lurching back and forth between their

respective partisan preferences, these flip-flopping

administrations deny any semblance of regulatory

certainty to the electric industry.

States, too, suffer sovereign harms from the

unreliability of their federal partner. States have

“exclusive” jurisdiction over “retail sales of

electricity,” FERC v. Elec. Power Supply Ass'n, 577

7

U.S. 260, 266–67 (2015), and also play a lead role in

air quality control under the Clean Air Act’s

“cooperative federalism.” J.A. 74 (describing states’

role under statutory scheme). It follows that states

must “design and enact transformative legislative

and regulatory changes” whenever the federal

government changes the rules of the game. See Appl.

by 29 States and State Agencies for Immediate Stay

of Final Agency Action During Pendency of Petitions

for Review at 39, West Virginia, et al. v. EPA, et al.,

136 S. Ct. 1000 (2016) (No. 15A773). As a result,

states, are forced to flip-flop in line with the back-andforth of presidential administration.

Enough is enough. It is incumbent on the Court to

protect the interests harmed by the legal instability

afflicting the major question here and elsewhere. Cf.

White House Briefing Room, “Fact Sheet: List of

Agency Actions for Review” (Jan. 20, 2021),

https://bit.ly/3AM85ha (identifying 104 Trump-era

rules to be immediately reviewed). A duty to “say

what the law is” sometimes requires this Court to say

what the law isn’t. Here, the Court must make clear

that it is constitutionally impermissible for agencies

to make “major” law based on interstitial authority.

II. A PROPOSED FRAMEWORK TO IDENTIFY

“MAJOR” RULES

Unfortunately, the Court’s major questions

doctrine is incomplete, as lower courts lack guidance

on how to distinguish major rules from non-major

rules. See, e.g., Chamber of Commerce v. DOL, 885

F.3d 360, 387–88 (5th Cir. 2018) (recognizing

uncertainty over doctrine’s scope). To be sure, a rule’s

price tag speaks to whether its economic and political

8

significance is sufficient to qualify as a major

question. But the Court can’t just pick a cost

threshold, above which all rules would be considered

“major.” Such a one-size-fits-all approach couldn’t

possibly

account

for

the

complexities

of

administrative policymaking. Something more is

needed. To assist the Court along these lines, amici

propose the following non-exclusive criteria for

determining what qualifies as a major question.

A. Is the Agency “Filling in the Details” or

“Answering Major Questions”?

The first factor for distinguishing a “major” rule is

“the nature of the question presented.” See FDA v.

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

159 (2000). “The mere fact that a statutory ambiguity

exists for some purposes does not mean it authorizes

the agency to reach major questions.” U.S. Telecom

Ass’n v. FCC, 855 F.3d 381, 403 (D.C. Cir. 2017)

(Brown, J., dissenting from denial of rehearing en

banc) (cleaned up). In determining where to draw the

line between “filling in the details” and “answering

major questions,” the key is statutory context.

For example, here the narrow purpose of § 111(d)

becomes obvious on consideration of the statute as a

whole. With the Clean Air Act, Congress created

comprehensive regulatory programs for two

categories of pollution: “criteria pollutants” and

“hazardous air pollutants.” See 42 U.S.C. §§ 108, 109

(criteria pollutants); § 112(b) (hazardous air

pollutants). Section 111(d), on the other hand, “is a

catch-all . . . intended to reach pollutants that do not

fit squarely within the ambit” of the Act’s primary

programs. J.A. 119.

9

With this statutory context in mind, it makes no

sense that a “catch-all” provision authorizes the EPA

to take on major questions, such as remaking the

electricity sector. If Congress had intended as much,

then lawmakers would have worked through one of

the two comprehensive pollution regimes established

by the Clean Air Act. “Congress … does not, one might

say, hide elephants in mouseholes.” See Whitman v.

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

B. Is the Agency Action “Historic”?

The second factor for determining whether a rule

qualifies as “major” is whether the agency is doing

something far out of the ordinary considering the

regulatory history at hand. Since 1970, the EPA has

exercised its § 111(d) authority a few times without

controversy, primarily to regulate far-flung industries

like sulfuric acid production or Kraft pulping plants.

See J.A. 75-76 (listing prior uses).

Yet in today’s era of presidential administration,

this once obscure provision now abets grandiose

executive ambition. President Obama called his §

111(d) rule “the single most important step America

has ever taken in the fight against global climate

change.” Remarks by the President on the Clean

Power Plan (Aug. 3, 2015) https://bit.ly/31OPZ24.

More recently, an unprecedented § 111(d) proposal for

oil and gas producers served as the centerpiece of

President Biden’s marquee international climate

policy, the Global Methane Pledge. See White House

Briefing Room, “Fact Sheet: President Biden Tackles

Methane Emissions, Spurs Innovations, and Supports

Sustainable Agriculture to Build a Clean Energy

10

Economy and Create

https://bit.ly/31IVfEz.

Jobs”

(Nov.

2,

2021),

Even a cursory review of § 111(d)’s regulatory

history couldn’t miss a clear-cut dichotomy. For

decades after its enactment, this “catch-all” authority

was used narrowly as intended. Now, it’s the basis for

historic rules at the forefront of presidential policy

agendas. When, as here, “an agency claims to discover

in a long-extant statute an unheralded power to

regulate a significant portion of the American

economy,” courts are likely dealing with a major

question. Util. Air Regulatory Group v. EPA, 573 U.S.

302, 324 (2014).

C. Did Congress Try to Do What the Agency

Is Doing?

The third factor to consider in identifying a

“major” question is whether Congress recently tried,

but failed, to legislate a comparable outcome. That’s

what happened here.

In 2009, the House of Representatives passed a

“cap-and-trade” policy to fight global warming. See

American Clean Energy and Security Act, H.R. 2454,

111th Cong. (2009). But the bill stalled in the Senate,

where it ultimately expired when the clock ran out on

the 111th Congress. “So President Obama ordered the

EPA to do what Congress wouldn’t,” J.A. 222 (Walker,

J., dissenting), and the agency promulgated the Clean

Power Plan. See 80 Fed. Reg. 64,662. For compliance,

the EPA proposed to operate nationwide “model

trading rules,” also known as a cap-and-trade. See 80

Fed. Reg. 64,966 (Oct. 23, 2015). The upshot is that

the Clean Power Plan amounted to an executive

enactment of the same major policy—nationwide cap-

11

and-trade—that Congress had declined to adopt after

much deliberation.

Where, as here, a regulation is indistinguishable

from a policy that Congress failed to enact, it is likely

that the agency is broaching a major question. See

U.S. Telecom Ass’n, 855 F.3d at 423 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc)

(explaining that the Federal Communication

Commission’s “net neutrality” rule raised a major

question because Congress “considered (but never

passed) a variety of bills relating to net neutrality”).

CONCLUSION

For the above reasons, the judgment below should

be reversed. In addition, the Court should use this

case to guide lower courts on how to apply the major

questions doctrine.

Respectfully submitted,

Joseph A. Bingham

MOUNTAIN STATES

LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80237

(303) 292-2021

jbingham@mslegal.org

December 16, 2021

Ilya Shapiro

Counsel of Record

William Yeatman*

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar

under D.C. App. R. 46-A.

Supervised by a D.C. Bar

member.