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

No. 20-1530

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------STATE OF WEST VIRGINIA et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The D.C. Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------RICHARD P. HUTCHISON

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

mike@landmarklegal.org

Attorneys for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

1

ARGUMENT ........................................................

4

I.

The major rules doctrine precludes EPA

from issuing and enforcing the Clean

Power Plan .................................................

4

A. The lower court erred when it ruled

that Section 111 obligates EPA to

promulgate the Clean Power Plan ...... 10

B. The Clean Power Plan is a major rule

requiring clear congressional authorization ................................................... 13

II.

EPA cannot use Section 111 of the Clean

Air Act to regulate coal burning power

plants when they are regulated under Section 112 ...................................................... 15

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

Am. Lung Assoc. v. EPA, 985 F.3d 914 (D.C. Cir.

2021) .................................................. 4, 10, 14, 15, 18

Appalachian Power Co. v. EPA, 249 F.3d 1032

(D.C. Cir. 2001) ........................................................18

Chevron U.S.A. Inc. v. National Resources Def.

Council, 467 U.S. 837 (1984) ........................... 6, 7, 11

FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) .................................... 8, 9, 11, 12, 13

Gonzales v. Oregon, 546 U.S. 243 (2006) .................. 8, 9

Loving v. United States, 517 U.S. 748 (1996) ...............5

MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994) ...........7

United States Telecom Ass’n v. FCC, 855 F.3d

381 (D.C. Cir. 2017) ......................................... passim

Util. Air Reg. Group v. EPA, 573 U.S. 302 (2014) ... 9, 11, 12

West Virginia v. EPA, 577 U.S. 1126 (2016) .................3

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

(2001) ................................................................... 8, 17

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ........................................................19

iii

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTION

U.S. Const. art. I, § 1 ............................................... 5, 19

U.S. Const. art. II, § 3 ............................................. 1, 13

STATUTES

Clean Air Act, 42 U.S.C. §§ 7401, et seq. (2014)

CAA § 108(a), 42 U.S.C. § 7408(a)...........................15

CAA § 111(d), 42 U.S.C. § 7411(d) .................. passim

CAA § 112(d), 42 U.S.C. § 7412 ................... 15, 16, 17

REGULATIONS

70 Fed. Reg. 15,994, 16,031 (Mar. 29, 2005) ...............17

77 Fed. Reg. 9,304 (Feb. 16, 2012) ..............................17

80 Fed. Reg. 64,662, 64,667 (Oct. 23, 2015) ............. 2, 3

84 Fed. Reg. 32,520, 32,584 (July 8, 2019) ............. 3, 10

OTHER AUTHORITIES

Cass R. Sunstein, Nondelegation Canons, 67 U.

Chi. L. Rev. 315 (2000) ............................................17

Charles D. Montesquieu, The Spirit of the Laws

(Cohler, Miller & Stone eds., 1989) ...........................6

Courtney Scobie, Supreme Court Stays EPA’s

Clean Power Plan, American Bar Association,

Feb. 17, 2016 ..............................................................3

iv

TABLE OF AUTHORITIES – Continued

Page

EPA Fact Sheet: Clean Power Plan by the Numbers...........................................................................14

EPA, Regulatory Impact for the Final Clean

Power Plan, Oct. 23, 2015 .......................................14

The Federalist No. 47 (James Madison) (C. Rossiter ed., 1961) ...........................................................6

National Mining Association, Clean Power Plan

Will Add $214 Billion to Wholesale Electricity

Prices, Nov. 17, 2015 ................................................14

National Mining Association, EPA’s Clean

Power Plan: An Economic Impact Analysis ............14

William N. Eskridge Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (Foundation Press, 2016) ...............................7

White House Fact Sheet, President Obama to

Announce Historic Carbon Pollution Standards for Power Plants, Aug. 3, 2015 ................ 13, 14

1

INTEREST OF AMICUS CURIAE1

Landmark Legal Foundation (“Landmark”) is a

national public interest law firm committed to preserving the principles of limited government, separation of

powers, federalism, advancing an originalist approach

to the Constitution, and defending individual rights

and responsibilities. Specializing in constitutional history and litigation, Landmark submits this brief in

support of Petitioners State of West Virginia et al.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

Administrative agencies operate only under the

authority granted to them by Congress. Congress

makes laws and the President, acting though administrative agencies “faithfully execute[s] them.” U.S.

Const. art. II, § 3. And when an agency issues a rule

having enormous economic and political implications,

the agency must have a clear mandate from Congress

to do so. This concept, known as the “major rules

1

The parties have consented to the filing of this brief. Petitioners have provided blanket consent for the filing of amicus

briefs and were informed of Amicus Curiae’s intent to file on November 19, 2021. Respondents have also provided blanket consent

for the filing of amicus brief and were informed of Amicus Curiae’s

intent to file on November 19, 2021. No counsel for a party authored this brief in whole or in part, and no counsel or party made

a monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amicus Curiae,

its members, or its counsel made a monetary contribution to its

preparation or submission

2

doctrine,” ensures: “(i) a separation of powers-based

presumption against the delegation of major lawmaking authority from Congress to the Executive Branch,

and (ii) a presumption that Congress intends to make

major policy decisions itself, not leave those decisions

to agencies.” United States Telecom Ass’n v. FCC, 855

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

This case shows the important role the major rules

doctrine plays in reining in administrative agencies

who improperly assert authority to issue regulations

with enormous political and economic impacts. Years

ago, EPA disregarded the constitutional and statutory

limits on its authority by issuing a major rule (entitled

the Clean Power Plan or “Plan”) that would transform

the nation’s energy sector, cost hundreds of billions of

dollars to implement, and lead to tens of thousands of

lost jobs. It did all of this without a clear authorization

from Congress.

In promulgating the Clean Power Plan, EPA relied

on Section 111(d) of the Clean Air Act (“CAA” or “Act”),

42 U.S.C. § 7411(d). Designed to reduce greenhouse

gas (“GHG”) emissions from existing power plants,

the Plan would implement three “building blocks” for

emission reduction. 80 Fed. Reg. 64,662, 64,667 (Oct.

23, 2015). First, the Plan obligated existing power

plants to implement technology to improve the efficacy of coal-fired steam power plants. Id. Next, the

Plan sought to substitute “increased generation from

lower-emitting existing natural gas combined cycle

units for generation from higher-emitting affected

steam generating units.” Id. Finally, the Plan

3

prioritized usage of electricity from zero-emitting

sources over electricity from traditional fossil fuel

power plants. Id. The latter two blocks are referred to

generation shifting provisions because reductions occur only when the source of power generation has

shifted from one type of power plant to another. 80 Fed.

Reg. at 64,728-29.

In an unprecedented ruling,2 the Court stayed

implementation of the Plan. West Virginia v. EPA,

577 U.S. 1126 (2016). After a change in presidential

administrations, EPA wised up, withdrew the Plan

and replaced it with a more modest, but constitutionally viable rule entitled The Affordable Clean Energy

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

ACE rule reflected EPA’s then interpretation of the

“plain meaning” of the Section 7411(d) of the Act. Id. at

32,523-24. Concluding that this plain meaning “unambiguously” limits the best system of emission reduction

to measures “that can be put into operation at a building, structure, facility, or installation,” the ACE rule

removed those “generation shifting” provisions. Id.

EPA also noted that the ACE rule was “based on the

only permissible reading of the [Act] and [it] would

reach this conclusion even without consideration of the

major question doctrine.” Id. at 32,529

The new rule, however, didn’t survive. A decision

by the lower court vacated the ACE rule and, in so

doing, breathed new life into the Plan by greatly

2

Courtney Scobie, Supreme Court Stays EPA’s Clean Power

Plan, American Bar Association, Feb. 17, 2016.

4

expanding EPA’s regulatory authority under the Clean

Air Act. Am. Lung Assoc. v. EPA, 985 F.3d 914, 930, 995

(D.C. Cir. 2021).

Under any reasonable analysis, the Plan amounts

to a major regulatory action, thereby requiring clear

congressional authorization. Without such authorization, no court should uphold its implementation. Yet

that is exactly what the lower court did and now this

Court must step in and act.

For reasons stated by Petitioners and for reasons

stated below, Amicus Curiae Landmark respectfully

urges the Court to conclude that the lower court’s decision wrongly endorses an unconstitutional rulemaking by EPA. Further, Amicus request that the Court

adopt the major rules doctrine and find that an agency

must have a clear delegation from Congress before it

issues any rule (such as the Clean Power Plan) having

enormous political and economic effects.

---------------------------------♦---------------------------------

ARGUMENT

I.

The major rules doctrine precludes EPA

from issuing and enforcing the Clean

Power Plan.

The lower court did not properly consider the major rules doctrine when it dismissed the ACE rule and

revived the Clean Power Plan. The lower court glossed

5

over the enormous effects of implementing the Plan

and the lack of clear statutory authorization.

The major rules doctrine “constrains the Executive and helps to maintain the Constitution’s separation of powers.” United States Telecom Ass’n, 855

F.3d at 419 (D.C. Cir. 2017, Kavanaugh, J., dissenting.)

Its application precludes upholding the Clean Power

Plan as a valid exercise of administrative authority.

Article I, § 1 of the Constitution vests “all legislative Powers herein granted . . . in a Congress of the

United States. . . .” This legislative power rests solely

with Congress under our constitutional system and

this concept is central to the separation of powers. “By

allocating specific powers and responsibilities to a

branch fitted to the task, the Framers created a National Government that is both effective and accountable.” Loving v. United States, 517 U.S. 748, 757 (1996).

So “Article I’s precise rules of representation, member

qualifications, bicameralism, and voting procedure

make Congress the branch most capable of responsive

and deliberative lawmaking.” Id. at 757-58. Thus, “[i]ll

suited to the task [of lawmaking] are the Presidency,

designed for the prompt and faithful execution of the

laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent

of direct electoral control.” Id. at 758. This assignment

of powers “allows the citizen to know who may be

called to answer for making, or not making, those delicate and necessary decisions essential to governance.”

Id.

6

Separation of powers prevents accumulation of

power and encroachments upon liberty. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,

and whether hereditary, self-appointed, or elective,

may justly be pronounced the very definition of tyranny.” The Federalist No. 47 at 298 (James Madison)

(C. Rossiter ed., 1961). As a result, “There can be no

liberty where the legislative and executive powers are

united in the same person, or body of magistrates,” Id.

(quoting Montesquieu, The Spirit of the Laws).

And “when the Judiciary exercises its Article III

authority to determine whether an agency’s rule is

consistent with a governing statute, two competing

canons of statutory interpretation come into play.”

United States Telecom Ass’n, 855 F.3d at 419. The first

canon, using the well-known analysis espoused in

Chevron U.S.A. Inc. v. Natural Resources Def. Council,

467 U.S. 837 (1984) obligates an agency to follow the

clear meaning of a statute. When the meaning is ambiguous, “the agency has discretion to adopt its own

preferred interpretation, so long as that interpretation

is at least reasonable.” United States Telecom Ass’n,

855 F.3d at 419 (citing Chevron, 467 U.S. at 842-45).

When a major agency rule involves a matter of

“great economic and political significance” a “countervailing canon” constrains “the Executive and helps

maintain the Constitution’s separation of powers.” Id.

Thus, the major rules doctrine demands that, for an

agency to issue a major rule, “Congress must clearly

authorize the agency to do so.” Id. For that reason, “[i]f

7

a statute only ambiguously supplies authority for the

major rule, the rule is unlawful.” Id. The doctrine derives from two “presumptions: (i) a separation of powers-based presumption against the delegation of major

lawmaking authority from Congress to the Executive

Branch . . . and (ii) a presumption that Congress intends to make major policy decisions itself, not leave

those decisions to agencies.” Id. (internal citations

omitted).

Unless expressly delegated with authority, agencies should not be the overlords of major policy decrees.

A string of cases has established the principle that,

even when Congress has delegated general rulemaking authority, courts should not presume that Congress

has delegated its power to “amend major social and

economic policy decisions.” Id. at 422 (quoting William

N. Eskridge Jr., Interpreting Law: A Primer on How to

Read Statutes and the Constitution 288 (2016)).

These cases include:

–

MCI Telecommunications Corp., v. American

Telephone & Telegraph Co., 512 U.S. 218

(1994). The Court held that the FCC has overstepped its bounds by issuing a rule exempting certain telephone companies from rate

filing requirements. Id. at 231-32. The Court

noted, that it was “highly unlikely that Congress would leave the determination of

whether an industry will be entirely, or even

substantially, rate-regulated to agency discretion.” Id. at 231.

8

–

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000). The Court denied the

FDA’s attempt to use its general authority to

regulate “drugs” and “devices” as a predicate

to regulate the tobacco industry. Id. at 159-61.

The Court stated that it was “confident that

Congress could not have intended to delegate

a decision of such economic and political significance to an agency in so cryptic a fashion.”

Id. at 160.

–

Whitman v. Am. Trucking Ass’ns., 531 U.S. 457

(2001). The Court found that relevant portions of the CAA did not delegate to EPA the

legislative authority permitting the Administrator to consider implementation costs in setting National Ambient Air Quality Standards

(NAAQS). Id. at 486.

–

Gonzales v. Oregon, 546 U.S. 243 (2006). The

Court considered whether the Controlled Substances Act permitted the Attorney General to

de-register physicians and therefore prevent

them from writing prescriptions for certain

drugs. Id. at 248-49. Again, the Court rejected

the rule, stating that it “would be anomalous

for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or

schedule a single drug, but to have given him,

just by implication, authority to declare an

entire class of activity outside ‘the course of

professional practice.’ ” Id. at 262 (citation

omitted). The Court continued, “The idea that

Congress gave the Attorney General such

broad and unusual authority through an

9

implicit delegation in the CSA’s registration

provision is not sustainable.” Id. at 267.

Finally, in Utility Air Regulatory Group, 573 U.S.

302 (2014), the Court held that EPA lacked authority

to issue a regulation subjecting millions of stationary

sources to regulation under the Clean Air Act because

they emitted GHGs. “When an agency claims to discover in a long-extant statute an unheralded power to

regulate ‘a significant portion of the American economy,’ . . . we typically greet its announcement with a

measure of skepticism.” Id. at 374 (citation omitted).

Reiterating the point made in Brown & Williamson,

the Court continued, “We expect Congress to speak

clearly if it wishes to assign to an agency decisions of

vast ‘economic and political significance.’ ” Id. (quoting

Brown & Williamson, 529 U.S. at 159, 160).

As summarized by then Judge Kavanaugh, “If an

agency wants to exercise expansive regulatory authority over some major social or economic activity . . . Congress must clearly authorize an agency to take such a

major regulatory action.” United States Telecom Ass’n,

855 F.3d at 421.

Again, no applicable section of the Act provides a

clear authorization to issue a rule of the size of the

Clean Power Plan. Congress did not authorize (or direct) EPA to promulgate a rule obligating a shift from

traditional power plants such as coal burning units to

renewable energy sources. And the lower court erred

by concluding that it did.

10

A. The lower court erred when it ruled

that Section 111 obligates EPA to promulgate the Clean Power Plan.

The Clean Power Plan caps carbon emissions and

forces shifts in power generation from traditional coalfired plants to lower-emitting plants (such as natural

gas or renewable sources). But nowhere in the applicable sections of the Act is EPA granted this specific authority. Instead, the lower court disregards the sourcespecific limitation promulgated in the ACE rule and interprets Section 111 as “not ambiguously bar[ring] a

system of emission reduction that includes generation

shifting.” Am. Lung Assoc., 985 F.3d at 951. The lower

court then goes even further and concludes that “Congress imposed no limits on the types of measures the

EPA may consider beyond three additional criteria:

cost, any non-air quality health and environmental impacts, and energy requirements.” Id. at 946 (citation

omitted). EPA, therefore, has virtually unlimited authority to impose any measures upon the nation’s energy sector it deems appropriate – no matter the effects

such measures may have upon traditional energy

sources.

Under this reasoning, EPA would not only be allowed to promulgate the Clean Power Plan, it could

regulate any building emitting GHGs and impose massive costs upon the nation. While EPA hasn’t gone that

far, the Clean Power Plan and other attempts by EPA

to regulate massive sectors of the economy should

never pass judicial scrutiny.

11

The Plan’s economic and political impacts compel

application of the major rules doctrine to reverse the

lower court’s decision and rein in EPA’s actions. As the

section of the Clean Air Act that EPA and the lower

court rely on includes no clear statement unambiguously authorizing EPA to consider off-site solutions for

emission reduction and because such action would

cause a major economic impact, EPA lacks any authority promulgate it. The Clean Power Plan thus fails the

major rules doctrine and should not receive protection

from any court.

Although some courts may assume that agencies

possess the authority, under Chevron, to issue rules resolving statutory ambiguities, this is false. An agency

can issue a major rule – i.e., one of great economic and

political significance – only if it has clear congressional

authorization to do so. When agencies assert some “unheralded power to regulate ‘a significant portion of the

American economy,’ ” such actions are to be met with

“a measure of skepticism.” Util. Air Reg. Group v. EPA,

573 U.S. at 324 (citation omitted) (quoting FDA v.

Brown & Williamson Tobacco Corp. 529 U.S. 120, 159

(2000)). Indeed, “[the Court] expect[s] Congress to

speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” Id.

Consider that regulation in Utility Air Regulatory

Group. EPA sought to tailor sections of the Act (specifically the Prevention of Significant Deterioration

(PSD) program and Title V) to accommodate regulations of GHGs emissions from stationary sources. Id.

at 311-12. EPA argued that it had the authority to

12

interpret the Act in manner that would allow it to regulate tens of thousands of stationary sources that emit

GHGs. Id. at 312. It also argued that it could amend

the clear numeric thresholds for PSD and Title V to

exempt most of those sources because it could not

manage the administrative burden of managing the

onslaught of new permits that would be required

should stationary sources emitting GHGs come under

the auspices of PSD program and Title V. Id. The Court

rejected both claims.

First, the Court considered it “beyond reasonable

debate that requiring permits for sources based solely

on their emission of greenhouse gasses . . . set forth in

the statute would be ‘incompatible’ with ‘the substance

of Congress’ regulatory scheme.’ ” Id. at 322 (quoting

Brown & Williamson, 529 U.S. at 156). PSD and Title

V review involved complex and time-consuming processes that could not be administratively managed if

all sources emitting GHGs fell under their regulatory

authority. Id. at 312.

Second – and equally important – EPA’s interpretation of its authority under the Act would “bring about

an enormous and transformative expansion in EPA’s

regulatory authority. . . .” Id. at 324. If upheld, the rule

would have authorized EPA to “require permits for the

construction and modification of tens of thousands, and

the operation of millions, of small sources . . . ” Id. This

authority, according to the Court, “falls comfortably

within the class of authorizations that we have been

reluctant to read into ambiguous statutory text.” Id.

13

Finally, recognizing the authority in the Tailoring

Rule would “deal a severe blow to the Constitution’s

separation of powers.” Id. at 327. As aptly stated, “Under our system of government, Congress makes laws

and the President, acting at times through agencies

like EPA, ‘faithfully execute[s]’ them.” Id. (citation

omitted) (quoting U.S. Const. art. II, § 3).

These arguments apply to the Clean Power Plan.

Nowhere in the applicable section of the Clean Air Act

does Congress authorize EPA to issue a regulation that

leads to electricity generation shifting from traditional, fossil fuel sources to renewable sources. And, as

stated before, implementation of the Plan will “bring

about an enormous and transformative expansion in

EPA’s regulatory authority” as it would greatly expand

EPA’s mandates under the Act. Id. at 324. Upholding

the Clean Power Plan therefore undermines the carefully crafted balance of federal powers enshrined in the

Constitution and protected by application of the major

rules doctrine.

B. The Clean Power Plan is a major rule

requiring clear congressional authorization.

The Clean Power Plan, dubbed by President Obama

as a “Landmark Action to Protect Public Health, Reduce

Energy Bills for Households and Businesses, Create

American Jobs, and Bring Clean Power to Communities across the Country,” cannot be classified as anything but a major rule. White House Fact Sheet,

14

President Obama to Announce Historic Carbon Pollution Standards for Power Plants, Aug. 3, 2015. The

Plan purportedly would reduce premature deaths from

power plant emissions by 90% and create tens of thousands of new jobs (while eliminating others). Id. Implementation, according to EPA, would reduce domestic

energy’s carbon emissions by 30% – “equal to the annual emissions from more than 150 million cars.” EPA

Fact Sheet: Clean Power Plan by the Numbers. EPA itself concluded that the Plan would eliminate over

33,000 jobs relating to traditional energy generation

by 2030, including about 20,000 coal-related jobs. EPA,

Regulatory Impact for the Final Clean Power Plan, Oct.

23, 2015.

Industry experts predict that implantation of the

Plan will cause wholesale electricity costs to rise by

$214 billion. National Mining Association, Clean Power

Plan Will Add $214 Billion to Wholesale Electricity

Prices, Nov. 17, 2015. Replacing capacity lost through

implementation of the Plan will cost another $64 billion. National Mining Association, EPA’s Clean Power

Plan: An Economic Impact Analysis. Experts estimate

that many states will see increases of wholesale electricity exceeding 25%. Id. at 3-4. Ohio and West Virginia, for example, could see energy cost increases of

31.2% and 29.8% respectively. Id. at 3.

Implementation of the Plan also involves serious

political ramifications. Judge Walker notes in his dissent in the case below that the Plan will contribute to

achieving “victory” over climate change on a scale of

“vast political significance.” Am. Lung Assoc., 985 F.3d

15

at 1001 (Walker, J., dissenting). Such a victory, according to the Plan’s advocates “will lower ocean levels;

preserve glaciers; reduce asthma; make hearts healthier; slow tropical diseases; abate hurricanes; temper

wildfires; reduce droughts; stop many floods; rescue

whole ecosystems; and save from extinction up to ‘half

the species on earth.’ ” Id.

II.

EPA cannot use Section 111 of the Clean

Air Act to regulate coal burning power

plants when they are regulated under Section 112.

EPA cannot regulate electricity generating units

(EGUs) under Section 111 of the Clean Air Act because EGUs are already regulate under a different

section. The version of Section 111(d), 42 U.S.C.

§ 7411(d) passed by the House of Representatives and

appearing in the United States Code provides that the

Administrator must prescribe regulations from any existing source:

(i)

for which air quality criteria have not

been issued or which is not included on a

list published under Section 108(a) [42

U.S.C. § 7408(a)] or emitted from a source

category which is regulated under Section 112 [42 U.S.C. § 7412] but

(ii) to which a standard of performance under

this section would apply if such existing

source were a new source . . .

16

According to this clear and unambiguous language, Section 111(d) applies only to sources that have

“not been issued or which is not . . . regulated under

Section 112 [42 U.S.C. § 7412. . . .” Thus, regulation of

sources under Section 112 bars regulation of those

sources under Section 111(d).

EPA asserted that the exclusion in Section 111(d)

“does not bar the regulation [under CAA Section 111(d)

of non-HAP [Hazardous Air Pollutants] from a source

category, regardless of whether that source category is

subject to standards for HAP under CAA Section 112.”

80 Fed. Reg. at 64,711. EPA also believes that, while

the version of Section 111 passed by the Senate is

“clear and unambiguous,” the version passed by the

House “is ambiguous.” Id. at 64,712. This purported

ambiguity (according to EPA) allows it to exercise its

discretion and interpret the House version in a way

that permits it to regulate Electric Generating Units

(EGUs) under Section 111(d). EPA appropriates a legislative role by reconciling the two versions in a way

that permits regulation. See id. 64,715 (“The Section

112 Exclusion in Section 111(d) does not foreclose the

regulation of non-HAP from a source category regardless of whether that source category is also regulated

under CAA Section 112.”).

Simply put, EPA is barred from regulating EGUs

under Section 111(d) because it already regulates

these entities under Section 112. In February 2012,

EPA established “[National Emission Standards for

Hazardous Air Pollutants] NESHAP that will require

coal- and oil-fired EGUs to meet hazardous air

17

pollutant (HAP) reflecting the application of the maximum achievable technology. [(MATs rule.)]” 77 Fed.

Reg. 9,304 (Feb. 16, 2012).

Regulating EGUs under Section 112 triggers the

clear prohibition in Section 111(d). This should end the

matter. Congress specifically carved out an exemption

in Section 111(d) for sources already regulated under

Section 112. The legislative history of Section 111(d)

precludes regulation of sources already subject to regulation under Section 112(d). In short, the Senate itself

receded to the House version of 111(d) even though

both versions appear in the Statutes at Large. S. 1630,

101st Cong., § 108 (Oct. 27, 1990), reprinted in 1 Leg.

History at 885 (1998) (Chaffee-Caucus Statements of

Senate Managers). Also, EPA itself has acknowledged

the Senate’s version as a “drafting error.” 70 Fed. Reg.

at 15,994, 16,031 (Mar. 29, 2005).

Moreover, the statute must provide an “intelligible

principle to which the person or body authorized to

[act] is directed to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (citation omitted).

“Courts do not ask the hard-to-manage question

whether the legislature has exceeded the permissible

level of discretion . . . ” Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 338 (2000). Instead,

courts examine “the far more manageable question

whether the agency has been given the discretion to

decide something that (under the appropriate canon)

only legislatures may decide. Id.

18

Section 111(d) provides no intelligible principle

through which EPA may disregard the clear prohibition and regulate sources already subject to regulation

under Section 112. In short, there is no legislative delegation from Congress. The language is clear and “absent an extraordinarily convincing justification,” EPA

cannot “ratify an interpretation that abrogates the enacted statutory text. . . .” Appalachian Power Co. v.

EPA, 249 F.3d 1032, 1041 (D.C. Cir. 2001).

EPA engaged in a legislative act when it promulgated the Clean Power Plan by trying to reconcile what

it believed to be two controlling versions of Section

111(d). The lower court abetted this error by giving

“full effect” to both versions and erroneously concluding EPA could issue the Clean Power Plan. Am. Lung

Assoc., 985 F.3d at 980. Moreover, the lower court disregarded the major rules doctrine – a “canon that

constrains the Executive and helps maintain the

Constitution’s separation of powers.” United States

Telecom Ass’n, 855 F.3d at 419 (D.C. Cir. 2017, Kavanaugh, J., dissenting).

---------------------------------♦---------------------------------

CONCLUSION

EPA’s attempts to regulate massive sectors of the

nation’s energy production without clear authorization

leads to a sobering question – who should decide issues

of this level of magnitude? Unnamed bureaucrats at

the EPA who are operating (at best) on the absolute

fringes of statutory authority? Or, accountable, elected

19

representatives in Congress? The Constitution provides the answer as “All legislative Powers herein

granted shall be vested in a Congress of the United

States . . . ” U.S. Const. art. I, § 1. And “the Executive

my issue rules only pursuant to and consistent with a

grant of authority from Congress (or a grant of authority directly from the Constitution.)” U.S. Telecom Ass’n

v. FCC, 855 F.3d at 419 (Kavanaugh, J., dissenting, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 585 (1952)).

For these reasons, Landmark respectfully urges

the Court to overturn the lower court’s decision and

rule that the lower court erred by concluding EPA has

the authority under the Clean Air Act to promulgate

the Clean Power Plan.

Respectfully submitted,

RICHARD P. HUTCHISON

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

mike@landmarklegal.org

Attorneys for Amicus Curiae