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

Supreme Court briefDec 16, 2021

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

In the

Supreme Court of the United States

WEST VIRGINIA, ET AL.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writs of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF AMICI CURIAE LIGNITE ENERGY COUNCIL,

ILLINOIS COAL ASSOCIATION, KENTUCKY COAL

ASSOCIATION, METALLURGICAL COAL PRODUCERS

ASSOCIATION, MONTANA COAL COUNCIL, NEW MEXICO

MINING ASSOCIATION, OHIO COAL ASSOCIATION,

PENNSYLVANIA COAL ALLIANCE, RELIABLE ENERGY,

INC., ROCKY MOUNTAIN MINING INSTITUTE , TEXAS

MINING AND RECLAMATION ASSOCIATION, UTAH

MINING ASSOCIATION, WEST VIRGINIA COAL

ASSOCIATION, AND WYOMING MINING ASSOCIATION IN

SUPPORT OF PETITIONERS

Michael J. Nasi

Counsel of Record

JACKSON WALKER L.L.P.

100 Congress Ave.,

Suite 1100

Austin, Texas 78701

mnasi@jw.com

(512) 236-2216

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Statement of Interest .................................................. 1

Summary of Argument.............................................. 10

Argument ................................................................... 10

II.

The

Major

Questions

Doctrine

Forecloses the D.C. Circuit’s “Discovery”

of EPA Authority to Regulate State

Existing Sources Under Section 111(d) ..... 10

This Situation Was Tailor-Made

for Application of the Major

Questions Doctrine ............................ 11

The D.C. Circuit’s Decision Would

Allow EPA to Make Pawns Out of

Its

Cooperative

Federalism

Partners ............................................. 18

The “Vast Economic and Political

Significance” of the D.C. Circuit’s

Decision Is Clear from the Impact It

Would Have on Amici in States Across

the Country Who Will Be Immediately

and Adversely Affected by this

Unbridled EPA Power ................................ 21

Conclusion ................................................................. 31

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Conn.,

564 U.S. 410 (2011) .............................................. 18

Am. Lung Assoc. v. EPA,

985 F.3d 914 (D.C. Cir. 2021) .................. 11, 18, 19

King v. Burwell,

576 U.S. 473 (2015) .............................................. 10

Loving v. I.R.S.,

742 F.3d 1013 (D.C. Cir. 2014) ............................ 10

New York v. United States,

505 U.S. 144 (1992) .............................................. 20

Printz v. United States,

521 U.S. 898 (1997) .............................................. 20

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .............................. 9, 10, 13, 17

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 12

Statute, Regulations, and Rules

42 U.S.C. § 7411(d) .......................................... 9, 11, 12

45 Fed. Reg. 26,294 (Apr. 17, 1980) .......................... 12

61 Fed. Reg. 9,905, (Mar. 12, 1996) .......................... 12

iii

Sup. Ct. Rule 37.3(a) ................................................... 1

Sup. Ct. Rule 37.6........................................................ 1

Other Authority

North Dakota, et al. v. EPA, et al.,

Nos. 15A793, 15A773, 15A776,

15A778, 15A787 (Feb. 9, 2016) ............................ 18

STATEMENT OF INTEREST1

The Lignite Energy Council (LEC) is a regional,

non-profit organization whose primary mission is to

promote the continued development and use of lignite

coal as an energy resource. Lignite is a type or “rank”

of coal distinct from other ranks. Due to its

characteristics, its principal use is as fuel for power

plants, and lignite-fueled power plants are often

mine-mouth plants. Thus, lignite’s economic value is

almost entirely undermined when the power plants

are no longer permitted to use it. LEC’s membership

includes: (1) producers of lignite who have an

ownership interest in and who mine lignite; (2) users

of lignite who operate lignite-fueled electric

generating plants and the nation’s only commercial

scale “synfuels” plant that converts lignite into

pipeline-quality natural gas; and (3) suppliers of

goods and services to the lignite industry. North

Dakota is the 5th largest coal production state

according to the Energy Information Agency.2

Colorado-based Rocky Mountain Mining Institute

(RMMI) is a nonprofit corporation dedicated to the

promotion of western mining through education.

RMMI membership is diverse and includes

individuals from both surface and underground

1 All parties have consented to the filing of this amicus. Sup. Ct.

Rule 37.3(a). No party or counsel for a party authored this brief

in whole or in part, and no person or entity, other than Amici,

made any monetary contribution to its preparation or

submission. Sup. Ct. Rule 37.6.

2 https://www.eia.gov/state/rankings/#/series/48

mines, equipment manufacturers, service/supply

firms, utilities, law firms, government, universities

and colleges, financial institutions, and others

interested in supporting the industry in Colorado,

Montana, Texas, Utah, Wyoming, North Dakota, and

beyond. Colorado is the 13th largest coal production

state according to the Energy Information Agency.3

The Kentucky Coal Association (KCA) is a nonprofit organization that represents Kentucky

operations that mine coal through surface and

underground methods. KCA’s constitution and bylaws were adopted on April 28, 1947, “to promote the

best interest of the coal mining industry in the

Commonwealth of Kentucky and all those engaged

therein . . .” KCA has two classes of members:

(1) corporations, firms or individuals directly engaged

in producing and/or processing coal in Kentucky; and

(2) any other association, organization, corporation,

firm or individual interested in promoting the welfare

of the coal industry in Kentucky. Kentucky is the 7th

largest coal production state according to the Energy

Information Agency.4

The Illinois Coal Association (ICA) is the

professional trade organization responsible for the

promotion of Illinois coal. ICA represents the coal

industry in Illinois in governmental affairs, in public

relations, and in related matters. Through the ICA,

Id.

companies producing coal in Illinois deal with issues

affecting their interests with a single, unified voice.

Illinois is the 4th largest coal production state

according to the Energy Information Agency.5

Indiana-based Reliable Energy, Inc. (REI) is a

trade association promoting the interests of the coal

industry and its supporting businesses and is

committed to ensuring an abundant supply of

available, affordable, and dependable energy in

Indiana and across the country. Indiana is the 8th

largest coal production state according to the Energy

Information Agency.6

The Metallurgical Coal Producers Association

(MCPA) is a non-profit organization made up of

metallurgical coal producers and those who support

its producing members’ operations. While coal has

traditionally been understood through the thermal

coal lens of power plants and light bulbs, MCPA seeks

to expand the general public’s understanding of

metallurgical coal and its critical benefit to our

everyday lives. Bridges, automobiles, and common

products like kitchen appliances are made possible by

metallurgical coal. By looking at coal through another

lens and helping to create a link between

metallurgical coal and its many end uses, MCPA

Id.

strives to broaden the understanding of how coal

powers our lives.

The Montana Coal Council (MCC) is a non-profit

association whose membership includes all major coal

mine operators, holders of Montana coal reserves,

those who ship coal, utilities who use coal, and

numerous suppliers and businesses directly and

indirectly involved in the coal industry. Montana is

the 6th largest coal production state according to the

Energy Information Agency.7

The New Mexico Mining Association (NMMA) is a

trade association organized in 1939 and incorporated

in 1968 that serves as the chief spokesman for the

mining industry in New Mexico. NMMA’s members

include: (1) companies that explore, produce and

refine metals, coal, and industrial materials;

(2) companies that manufacture and distribute

mining and mineral processing; equipment and

supplies; and (3) individuals engaged in various

phases of the mineral industry. New Mexico is the

12th largest coal production state according to the

Energy Information Agency.8

The Ohio Coal Association (OCA) is a non-profit

trade association dedicated to representing the

interests of Ohio’s underground and surface coal

producers. OCA represents nearly all of Ohio’s coal

Id.

producers and more than 50 associate members,

which include suppliers and consultants to the mining

industry, coal sales agents and brokers, and allied

industries. As a united front, OCA is committed to

advancing the development and utilization of Ohio

coal as an abundant, economic, and environmentally

sound energy source. Ohio is the 15th largest coal

production state according to the Energy Information

Agency.9

The Pennsylvania Coal Alliance (PCA) is a trade

association that represents the Pennsylvania coal

industry and associated service companies. PCA is

committed to promoting and advancing the

Pennsylvania coal industry and the economic and

social benefit to the employees, businesses,

communities, and consumers who depend on

affordable, reliable, and increasingly clean energy

from coal. Pennsylvania is the 3rd largest coal

production state according to the Energy Information

Agency.10

The Texas Mining and Reclamation Association

(TMRA) is the professional trade association that

represents the mining industry in Texas. TMRA

serves as a single voice for the Texas mining industry

and exhibits integrity, clarity, and vision in its efforts

to create a balance between and among mineral

production, environmental protection, economic

Id.

strength, and public welfare. TMRA educates the

public, regulators and policymakers on the value of

mining to Texas’s economy and advocates on issues

including environmental regulation, legislation, and

public perception. Texas is the 9th largest coal

production state according to the Energy Information

Agency.11

The Utah Mining Association (UMA) is a trade

association that has been the voice of the Utah mining

industry since 1915. UMA advocates for and advances

the mineral resource and related industries in Utah,

represents and informs its members in the legislative

and regulatory arenas at the local, state, and federal

levels, and educates elected officials, regulators, and

the public on the Utah mining industry. Utah is the

10th largest coal production state according to the

Energy Information Agency.12

The West Virginia Coal Association (WVCA) is a

trade association located in Charleston, West

Virginia, representing more than 90% of the state’s

underground and surface coal mine production. Its

purpose is to have a unified voice representing the

state’s coal industry as well as increase emphasis on

coal as a reliable energy source to help the nation

achieve energy independence. WVCA is also a

member of Amici West Virginia Business & Industry

Council (WVBIC), which consists of more than 60

Id.

West Virginia trade associations and businesses and

represents more than 395,000 West Virginia workers

across 26 separate industry categories. WVBIC

focuses on improving the state’s economic and

political conditions with the goal of maximizing

opportunity in the state. West Virginia is the 2nd

largest coal production state according to the Energy

Information Agency.13

The Wyoming Mining Association (WMA) is a

trade association that serves as a unified voice, by

communicating, influencing, and promoting issues on

behalf of the Wyoming mining industry. WMA

promotes the mining industry by communicating with

elected officials, regulators, educators, and the public

in a credible way that encourages trust and

confidence, and earns respect as a reliable source of

information on issues pertinent to the industry.

Wyoming is the largest coal production state

according to the Energy Information Agency.14

LEC and the above-referenced state coal

associations (collectively “State Coal Association

Amici”) are comprised of members who have invested

substantial amounts in the operation of coal and

lignite-fueled power plants, coal and lignite coal

mines supplying those plants, and businesses that

supply goods and services to coal and lignite owners

and users. All of these entities rely in their business

planning on the express statutory provisions in the

Id.

Clean Air Act (“CAA”), which establish the limits to

the United States Environmental Protection Agency’s

(“EPA”) authority and reserve the primary role of

states in a system of cooperative federalism. Lignite

and coal mines and reserves, as well as the power

plants they supply, have substantial economic value

at risk: their value will be significantly impaired if the

EPA is permitted to extend the reach of its regulatory

authority outside of the CAA’s express statutory

provisions.

Lignite- and coal-fired electricity is abundant, lowcost, reliable, weather-resilient and environmentally

stable. It is therefore a reasonable, often statepreferred, method of supplying power to a region. In

fact, many states, depend primarily on lignite or coal

as a primary source of electricity, including

Petitioners West Virginia (90%), Wyoming (83%),

Missouri (71%), Utah (62%), North Dakota (57%),

Indiana (56%), Nebraska (51%), Ohio (38%), Kansas

(31%), and Arkansas (30%), as well as Amici Kentucky

(69%) according to the Energy Information Agency.15

Other Petitioners continue to rank among the top

consumers of coal and lignite as key sources powering

their very large power plant fleets, including Texas

(#1), Missouri (#2), Alabama (#12), Pennsylvania

(#16), Arkansas (#17), and Georgia (#20).16

15https://www.eia.gov/coal/data.php

Id.

As explained by the separate brief in support of

Petitioners filed by Amici South Texas Electric

Cooperative, Inc, Buckeye Power, Inc., Associated

Electric Cooperative, Inc., Arizona Electric Power

Cooperative, Inc., East Kentucky Power Cooperative,

Inc., Minnkota Power Cooperative, and the National

Rural Electric Cooperative Association (collectively

“Rural Electric Cooperative Amici”), the D.C. Circuit’s

erroneous decision grants the EPA extra-statutory

authority to force states to cast aside their own policy

choices in favor of those preferred by the federal

government. This stands in direct contrast to the

statute’s plain text, which delegates this authority to

states. LEC and the State Coal Association Amici

agree with the arguments advanced by the Rural

Electric Cooperative Amici and join them fully.

LEC and the State Coal Association Amici write

separately to provide an additional perspective

regarding the D.C. Circuit’s affront to the major

questions doctrine, as well as its offense to the

fundamental

prohibition

against

federal

commandeering of the states. Because the decision

adopts a statutory interpretation that “would bring

about an enormous and transformative expansion in

[an agency’s] regulatory authority without clear

congressional authorization,” Util. Air Regulatory

Grp. v. EPA (“UARG”), 573 U.S. 302, 324 (2014), by

turning the states into the instruments of the federal

government, the Court must reject it and reverse.

SUMMARY OF ARGUMENT

Of great concern to LEC and the State Coal

Association Amici is the manner in which the D.C.

Circuit allows EPA to ignore this Court’s major

questions doctrine, which prohibits the D.C. Circuit’s

strained interpretation of 42 U.S.C. § 7411(d) of the

Clean Air Act (“Section 111(d)”). The D.C. Circuit’s

decision empowers EPA to convert its statutorily

defined and modest role as an environmental

regulatory body into the sole energy policymaker,

supplanting states even in their expressly delegated

areas of authority.

LEC and the State Coal Association Amici are also

disturbed by the manner in which the D.C. Circuit

would allow EPA to flip the roles of the state and

federal government under Section 111(d). The D.C.

Circuit’s approach converts the cooperative

federalism embodied in the CAA into a top-down

coercive federalism regime that subjugates every

state to be a pawn, rather than a partner, of the

federal government.

ARGUMENT

I. THE MAJOR QUESTIONS DOCTRINE FORECLOSES THE

D.C. CIRCUIT’S “DISCOVERY” OF EPA AUTHORITY TO

REGULATE STATE EXISTING SOURCES UNDER

SECTION 111(D).

The major questions doctrine ensures that

Congress must provide clear authorization to an

agency when it intends to grant that agency the power

to make decisions of vast economic and political

significance. Because the D.C. Circuit’s decision

offends this bedrock principle, it must be reversed.

The Court has made clear that “if [Congress]

wishes to assign to an agency decisions of vast

economic and political significance” it must speak

“clearly.” UARG, 573 U.S. at 324; see also King v.

Burwell, 576 U.S. 473, 485-86 (2015) (noting that for

questions of “deep economic and political

significance,” Congress “surely” would only “assign

that question to an agency . . . expressly”). A grant of

such expansive power should not be lightly presumed.

E.g., Loving v. I.R.S., 742 F.3d 1013, 1021 (D.C. Cir.

2014).

Here, the D.C. Circuit concluded that Congress

authorized EPA to dictate to states what type of

energy will be generated and available in this country.

Am. Lung Assoc. v. EPA, 985 F.3d 914, 945-50 (D.C.

Cir. 2021). But no clear language appears in the CAA

granting EPA this power of vast economic

significance. Rather, Section 111(d) expressly

reserves to states the primary authority to set

standards of performance for the existing sources

within their borders—defining for themselves the best

and most efficient energy policy for their citizens.

42 U.S.C. § 7411(d). The D.C. Circuit’s decision

offends the Major Questions Doctrine.

This Situation Was Tailor-Made for

Application of the Major Questions Doctrine.

The primary EPA action affirmed by the D.C.

Circuit’s decision—and what is the source of LEC and

the State Coal Association Amici’s main concern with

the decision—is EPA’s power grab effected through

the re-definition of one phrase in the CAA—“Best

System of Emission Reduction (BSER)” under the

supposed auspices of Section 111(d). Breaking from

explicit statutory text and 45 years of regulatory and

judicial precedent, EPA redefined the word “system”

to mean the entire electric grid. It reread the term to

afford itself new ability to create mandatory emission

standards based, not on what was achievable inside

the fence of a facility, but instead on its own

assumptions of what could be built anywhere in a

large power system to offset a facility’s emissions.

Dubbed the “outside the fence” approach, this enables

EPA to disregard specific Sites altogether.

This “outside the fence” approach, while acceptable

as a method of flexible compliance with an emission

standard, has never been accepted as a means to

derive mandatory limits applicable to states or

individual facilities, let alone seize control of

wholesale energy markets. Indeed, in all the years

Section 111(d) has been on the books, EPA has never

attempted to use the provision in the manner

proposed by the Clean Power Plan (“CPP”). Rather,

EPA’s prior uses of this section were narrow, imposing

individualized measures aimed at reducing specific

pollutants. E.g., 61 Fed. Reg. 9,905, 9,914 (Mar. 12,

1996) (guideline for a landfill based upon “[p]roperly

operated gas collection and control systems”); 45 Fed.

Reg. 26,294 (Apr. 17, 1980) (aluminum plant guideline

for “effective collection of emissions”).

EPA’s infrequent and narrow use of section

7411(d) confirms that this provision was understood

to allow limited regulation of existing sources—

consistent with its plain text—and that the provision

was a secondary part of the overall statutory scheme.

“Congress . . . does not alter the fundamental details

of a regulatory scheme in vague terms or ancillary

provisions—it does not, one might say, hide elephants

in mouse holes.” Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 468 (2001).

The Court has made clear that EPA has no

discretion to act beyond the power delegated to it by

Congress. UARG, 573 U.S. at 315. And the Court has

“typically greet[ed]. . . with a measure of skepticism”

situations “[w]hen an agency claims to discover in a

long-extant statute an unheralded power to regulate

a significant portion of the American economy.” Id. at

324.

Yet the CPP’s wholesale revision of BSER to

dictate state energy policy illustrates precisely the

power grab the major questions doctrine forbids.

Because EPA made its own assumptions about the

power grid in deriving the emission standard in the

CPP, it was able to impose its own policy preferences

about what type of electric generation could and

should be built in the grid (primarily renewables) and

made it impossible for traditional fossil fuel-fired

plants (coal and simple-cycle natural gas) to meet the

standard it derived without a massive transfer of

wealth from fossil energy owners to renewable

developers.

A compelling example of the problems that ensue

when EPA ignores the statutory limits on its power

and infers grand energy policymaking authority can

be found at the power plant owned by Amicus WVCA

member, Longview Power. The Longview Power Plant

commenced operations in Maidsville, West Virginia,

in 2011. Due to its state-of-the-art technology and

high quality fuel supply, Longview Power Plant is the

cleanest, most-efficient coal-fired power plant in the

13-state PJM Interconnection and one of the most

efficient coal-fired power plants in the entire United

States. Longview boasts a best-in-class heat rate of

8,750 btu/kwh and produces the lowest cost dispatch

and lowest carbon dioxide emissions rate (1,958

lb/MWh) of any coal-fired plant in the region.

In developing the emission goals of the CPP, the

EPA hard-wired the aforementioned “outside the

fence” assumptions in setting the emission standard

it handed down to West Virginia to impose on

Longview a rate-based carbon emission limit of 1305

lb/MWhr). Because Longview is a one-site facility,

meaning it is not part of a power generation portfolio

within which Longview could trade emissions,

Longview is not able to switch fuels or rely on dispatch

of other renewable sources to meet the goals set out

by EPA. Therefore, Longview would be required to

purchase significant emission credits from other

entities, install carbon capture equipment, or reduce

its dispatch. These economically infeasible options

would likely have led to the retirement of the plant at

the extremely young age of 10 years. Given that the

standard industry useful life of large power plants

exceeds 50-60 years, the investors in the Longview

Power Plant could not have conceived that EPA would

decree its obsolescence a mere four years after it

commenced construction.

An analogy to automobile mileage standards is

illustrative of the absurdity of the Longview situation

as car mileage is a more familiar subject than power

plant efficiency. Imagine buying a Toyota Prius in

2011, which boasted the best mile-per-gallon (MPG)

performance of its class at the time (48 MPG combined

city/highway). Then, four years later, EPA sets the

new car standard at 60 MPG, and in so doing,

recognizes that existing cars that are rebuilt cannot

do better than 50 MPG. Yet EPA, at the same time,

imposes a 75 MPG requirement on existing cars,

including your Prius, because it assumes that, in your

state, you can buy credits from somebody else who

happens to own a higher MPG vehicle or an electric

vehicle (EV) or, alternatively, you can simply park

your Prius for most of the year and take the bus or a

train to get to work and your kids to school.

It sounds absurd, but it is actually an appropriate

analogy for what EPA did and the D.C. Circuit

decision sanctions in the context of the CPP. In 2015,

EPA set the new plant carbon dioxide emission

standard at 1400 lb/MWhr and, at the same time,

acknowledged that existing plants that are

reconstructed could, at best, meet a 1800 lb/MWhr

standard. Yet in the CPP, EPA imposed a standard of

1305 lb/MWhr on Longview, which can only achieve a

best-in-class (1958 lb/MWhr) emission rate, and

which EPA acknowledged could not hope to do better

than 1800 lb/MWhr if reconstructed.

So, the CPP was like imposing a 75 MPG standard

on Longview’s 2011 Prius that did 48 MPG and was

assumed by EPA to be capable of only 50 MPG if

reconstructed. But EPA claimed that 75 MPG was

achievable and the states would have “flexibility” to

help Longview achieve it because EPA assumed

Longview could buy credits from others in West

Virginia who own or want to buy an EV or simply park

its Prius. What is even more absurd about the CPP is

that, in other states where EPA made more extreme

outside-the-fence assumptions, the effective emission

rate being imposed on the fleet was much lower than

the 1305 lb/MWhr imposed on Longview and West

Virginia. For example, in Texas, the rate imposed was

1042 lb/MWhr and, in Florida, it was as low as 919

lb/MWhr. In those states, Longview’s Prius would be

expected to get 20-30% better mileage than 75 MPG

(nearly doubling what your Prius can do in reality)

because, perhaps, there are more brand new fuel-

efficient cars, EVs, or theoretically better mass transit

in those states.

The scope of authority the D.C. Circuit would cede

to EPA under Section 111(d) of the CAA does not just

impact state coal and power producers. The new

definition of BSER permitted by the D.C. Circuit

decision would pave the way for EPA to infer

authority that would have vast economic and political

significance to other energy sectors. Under the D.C.

Circuit’s construction of 111(d), what is to stop EPA

from imposing greenhouse gas emission limits on

individual operators in the oil and gas sector based on

assumed reductions that could be achieved from other

operators, or even downstream refineries, because

they are all connected to the same pipeline? Could

they not assume individual operators could purchase

credits from newer, less methane-emitting facilities

and even pay downstream operators to produce

biofuels instead of petroleum products? This economywide regulatory authority is no more contemplated

than what EPA argued for in the CPP, yet is certainly

within its reach based on the vast authority the D.C.

Circuit decision cedes EPA by inference.

Based on the importance of the lignite and coal

industry to multiple states spanning the United

States and the members of LEC and the State Coal

Association Amici (further discussed below), the D.C.

Circuit’s blank check to EPA certainly exceeds the

threshold of “economic and political significance”

established by this Court. And Section 111(d) qualifies

as a “long-extant statute” that comes woefully short of

“speaking clearly” about the unprecedented federal

energy policymaking that the D.C. Circuit would

allow it to confer upon EPA by inference.

The Court should apply the major questions

doctrine and, like the UARG decision, keep EPA

tethered to the authority expressly granted to it by

Congress and reverse the D.C. Circuit decision to do

otherwise.

The D.C. Circuit’s Decision Would Allow EPA

to Make Pawns Out of Its Cooperative

Federalism Partners.

Another very troubling legal failing of the D.C.

Circuit decision is the manner in which it allows a

shift of power from the states to the federal

government, in direct conflict with express terms of

Section 111(d) and the cooperative federalism

compromise that is built into that and several other

sections of the CAA (and most federal environmental

statutes).

The plain text of Section 111(d) is a classic example

of a statutory scheme that sets distinct and particular

roles for the states apart from the federal government.

E.g., Am. Elec. Power Co. v. Conn., 564 U.S. 410, 42428 (2011). States are expressly permitted to establish

standards of performance for the existing sources

within their borders, subject only to EPA guidelines.

Among the many state-specific considerations that

EPA guidelines “shall permit” under Section 111(d),

each state may consider “the remaining useful life of

the existing source to which such standard applies.”

Id. The D.C. Circuit ignored these plain terms in

concluding that the EPA has authority to directly

promulgate standards of performance applicable to

states’ existing sources under the CPP. Am. Lung

Assoc., 985 F.3d at 941-42. As a result, the D.C.

Circuit’s decision permits EPA to impose standards on

existing sources, irrespective of their useful life or

other considerations EPA is mandated to allow states

to consider (and that it must consider itself if it were

to impose its own direct federal plan).

Like EPA when defending the CPP before this

Court issued its stay,17 the D.C. Circuit decision

waves the banner of “flexibility” in attempting to

explain away the coercive nature of the CPP’s

federally mandated emission budgets. Id. at 963. But

the claim of flexibility is illusory. Using the example

of the CPP, the D.C. Circuit decision allows EPA to set

state carbon budgets at unreasonably low levels based

on hard-wired assumptions about what states could

accomplish in their electric grids. For many states,

EPA’s assumptions were completely unrealistic,

including the construction of unprecedented levels of

renewable energy not owned by the sources on which

the limits were being imposed and without regard to

the remaining useful life of the units being forced to

17 Order in Pending Case,

North Dakota, et al. v. EPA, et al., Nos.

15A793, 15A773, 15A776, 15A778, 15A787 (Feb. 9, 2016).

retire—something that simply cannot be ignored in

the statute.

This approach—to mandate budgets based on

unrealistic assumptions and then claiming that states

can “flexibly” comply—is coercion, not the cooperative

federalism structure established by Congress. As one

state environmental agency official appropriately

pointed out, EPA was treating states more like

“pawns” than “partners.”

The CPP did not abide by the express statutory

command to allow state-specific considerations to be

utilized by state decision-makers implementing the

guidelines promulgated by EPA.

In fact, the coercive nature of the CPP

demonstrates how the D.C. Circuit decision effectively

permits the commandeering of the states, in violation

of the Tenth Amendment. See e.g., New York v.

United States, 505 U.S. 144, 188 (1992).

The anti-commandeering doctrine flows from the

“incontestable [proposition] that the Constitution

established a system of dual sovereignty,” under

which the States retain “‘a residual and inviolable

sovereignty.’” Printz v. United States, 521 U.S. 898,

918-19 (1997) (quotation omitted). States are not the

instruments of the federal government, instead they

“remain independent and autonomous within their

proper sphere of authority.” Id. at 928. No energy

producing state can be stripped of its ability to control

its energy destiny in the brazen way attempted by the

CPP and permitted by the D.C. Circuit’s decision.

II. THE

“VAST

ECONOMIC

AND

POLITICAL

SIGNIFICANCE” OF THE D.C. CIRCUIT’S DECISION IS

CLEAR FROM THE IMPACT IT WOULD HAVE ON AMICI

IN STATES ACROSS THE COUNTRY WHO WILL BE

IMMEDIATELY AND ADVERSELY AFFECTED BY THIS

UNBRIDLED EPA POWER.

As explained above and fully briefed by Petitioners

and the Electric Cooperative Amici, application of the

major questions doctrine guards against inferred

authority when the impact of that inference is of “vast

economic and political significance.” The D.C.

Circuit’s view that EPA can ignore the remaining

useful life of facilities and effectively mandate the

premature retirement of coal plants will most

certainly have that type of vast impact to the members

of LEC and the State Coal Association Amici in the

states in which they operate, which span the

continent.

The concerns expressed by LEC and the State Coal

Association Amici in this brief are not theoretical.

Rather, lignite and coal-using facilities and the states

in which they are located across the country will

experience tremendous economic hardship and

uncertainty if the Court does not reverse and allows

EPA to run with the untethered interpretation from

the D.C. Circuit. The following are a few examples.

In North Dakota, the D.C. Circuit’s decision

authorizing the EPA to significantly reduce, if not

eliminate, the use of coal in the grid, would lead to

significant adverse impacts on the state. Five mines

in North Dakota produce 26,996,860 tons of coal

annually, almost all of which (26,881,632 tons) is

consumed by its seven in-state coal-fired generation

plants, which supply 57% of the state’s electricity

generation. If coal were eliminated from the grid, the

state would be forced to replace the 4,224 megawatts

of total capacity generated by coal-fired plants. The

decision would threaten grid stability and cause

serious economic hardship to the state’s coal mining

and coal-fired generation industries, which have a

total output of $5.4 billion. Moreover, eliminating coal

would result in a significant number of lost jobs, as

13,100 people are employed by the North Dakota coal

mining and coal-fired generation industries. Losing

this industry would result in the loss of $124 million

in annual taxes paid by North Dakota coal mining and

coal-fired generation industries.

In Wyoming, the D.C. Circuit’s decision would also

lead to severe economic hardship. Wyoming is the top

coal-producing state, with 16 operating mines

producing 276,911,907 tons of coal annually that is

shipped to 128 power plants in 26 states. Wyoming

also relies heavily on coal-fired generation, with 83%

of the state’s electricity generation from coal-fired

plants. Wyoming’s 10 in-state coal-fired generation

plants consume 22,600,000 tons of coal annually and

generate 6,604 megawatts of electric capacity. The

total output relating in taxes, royalties, and fees to

coal mining and coal-fired generation is an estimated

$833.5 million. The EPA’s effective removal of coal

from the grid would thus be devastating to Wyoming.

It would also result in lost jobs—960 (or almost 1% of

the population) are employed in the coal mining and

coal-fired generation industries in Wyoming, with an

estimated payroll of $547 million excluding benefits.

Estimates indicate that each coal industry position

supports an additional two jobs in the service and

supply sectors, bringing direct and indirect

employment to more than 15,000 workers. The

decision would also diminish the estimated $555.9

million in state and local tax revenue on which the

state relies.

West Virginia depends primarily on coal for 90% of

the state’s electricity. The state’s 91 operating mines

produce 100.3 million tons of coal annually that is

shipped to 41 power plants in 15 states. Coal-fired

power plants in West Virginia consume 26 million

tons of coal annually and generate 12,610 megawatts

of total capacity. If coal were effectively eliminated

from the grid, the state would be forced to shift their

generation capacity to other fuel sources, seriously

threatening the state’s ability to maintain grid

stability. Moreover, eliminating coal would result in a

significant number of lost jobs—33,000 people are

employed by the West Virginia coal mining and coalfired generation industries for a total annual

employee compensation of $2.8 billion—along with a

loss of $611.3 million in state and local tax revenue.

The decision would result in tremendous economic

hardship, as the total annual economic output of coal

mining and coal-fired generation industries is $13.9

billion.

Pennsylvania is the third-largest coal-producing

state in the nation. In 2019, 149 coal mines produced

over 50,053,000 tons of coal, of which 25,773,050 tons

were sent to 41 coal-fired power plants in 18 states

and 4,830,146 tons were sent to 10 waste coal-fired

power plants in Pennsylvania. The D.C. Circuit’s

decision would impose serious economic hardship

upon the state and its coal mining and coal-fired

generation industries, which have a total output of

over $10.4 billion. Sixteen coal-fired plants in

Pennsylvania, including 10 waste coal-fired power

plants, have 10,682 megawatts of total installed

capacity. If the D.C. Circuit’s decision were allowed to

stand, coal-fired generation and waste coal-fired

generation would effectively be removed from the

grid, threatening grid reliability and the $37 million

annual value of environmental and public value the

waste coal industry is projected to contribute over the

next 20 years. Moreover, the decision threatens the

8,138 direct jobs in the coal mining and coal-fired

generation industries that pay $719,500,000 in total

compensation per year, in addition to the $313.7

million in annual state and local tax revenue on which

the state relies.

Similarly, in Kentucky, allowing the D.C. Circuit’s

decision to stand would result in serious economic

hardship. 139 operating mines in Kentucky produce

36,111,423 tons of coal that is shipped to 41 plants in

13 states. Kentucky’s 15 coal-fired power plants

consume 27,998,584 tons of coal annually and supply

12,515 megawatts of electric capacity, for 69% of

Kentucky’s electricity generation. If the EPA

effectively removed coal from the grid in Kentucky

and that capacity had to be replaced by other sources,

it would be extremely costly, grid stability would

suffer, and the coal mining and coal-fired generation

industries would be unfairly prejudiced. In addition,

eliminating coal would result in a significant number

of lost jobs in the state, as 5,656 people are employed

by coal mining and coal-fired generation industries in

Kentucky.

The State of Illinois would likewise suffer adverse

economic impacts if the D.C. Circuit’s decision is not

reversed. In Illinois, 21 mines produce 45,859,652

tons of coal annually and ship such coal to 32 plants

in 12 states. The 15 coal-fired generation plants in the

state consume 34,331,544 tons of coal and generate

12,737 megawatts of total electric capacity on which

the state relies. Illinois has 2,613 jobs in the coal

mining and coal-fired generation industries. As in the

states referenced above, the D.C. Circuit’s decision

threatens the viability of these important industries,

along with grid reliability in the state.

In Montana, six mines produce 26,033,018 tons of

coal annually, with such coal being shipped to 11

plants in six states. The state’s coal-fired plants

consume 5,359,435 tons of coal annually and generate

1,813 megawatts of electricity that would have to be

replaced with an alternate source of electricity if the

EPA were permitted to effectively remove coal from

the grid. The D.C. Circuit’s decision would thus

threaten serious harm to the state’s economy, as the

total output of coal mining is $611 million and put in

jeopardy the state’s 1,151 coal mining and coal-fired

generation jobs and state and local tax revenue

totaling $46,755,000.

Indiana’s economy and grid stability would also be

impaired if the D.C. Circuit’s decision is allowed to

stand. 18 Indiana mines produce 19.7 million tons of

coal annually and ship such coal to 20 plants in eight

states. The 14 coal-fired power plants in Indiana

consume approximately 29 million tons of coal

annually and generate 16,638 megawatts of total

electric capacity that would have to be replaced with

other energy sources if the EPA were allowed

effectively remove coal from the grid. Indiana’s coal

industry supports more than 16,000 jobs, directly and

indirectly, in the Hoosier state and generates more

than $2.64 billion in economic impact annually.

Scores of suppliers, vendors, and local businesses are

positively impacted by the presence of the coal

industry in Indiana.

In Utah, 64.5% of the state’s electricity

generation is from coal-fired plants, and if the EPA

were authorized to impose nationwide standards on

Utah without regard to the state’s reliance on coal as

an energy source, it would cause serious harm to the

grid and the Utah economy. Eight Utah coal mines

produce 14,347,000 tons of coal, the vast majority of

which is used for electricity generation in six plants in

two states. The five coal-fired generation plants in

Utah consume 11,500,000 tons of coal annually and

have 4,972 megawatts of total nameplate capacity.

The D.C. Circuit’s decision would risk grid

vulnerability and would also threaten the 1,397 jobs

in the coal mining industry, which pay $134,860,000

in direct employee compensation, $65,996,000 in state

and local taxes and federal royalties paid by coal

operators, and thousands of other generation,

trucking, and contractor jobs supported by the Utah’s

coal mining industry. Moreover, Utah’s coal mining,

coal-fired generation, and related support industries

are the largest and highest-paying employers in the

rural Utah counties in which they operate, and these

industries are vitally important to these counties and

to the state.

New Mexico would also suffer if the D.C. Circuit’s

decision is not reversed. Three mines in New Mexico

produce 14,535,660 tons of coal annually, with New

Mexico’s coal-fired power plants consuming 7,356,214

tons of coal and generating generate 2,464 megawatts

of total electric capacity. The decision would cause

serious economic hardship to the New Mexico coal

mining and coal-fired generation industries, which

have a total output of $392 million. Moreover,

eliminating coal would result in lost jobs—1,664

people are currently employed by the New Mexico coal

mining and coal-fired generation industries.

Eliminating coal from the grid would also result a loss

of $11 million in state and local tax revenue.

In Ohio, the D.C. Court’s decision would harm the

state’s economy. 15 Ohio coal mines produce

11,869,561 tons of coal that is shipped to 13 power

plants in four states. Nine coal-fired generation plants

in Ohio consume 22,722,148 tons of coal annually and

generate 12,835 megawatts of total capacity, and coal

is thus important to the electric grid. The D.C.

Circuit’s decision would risk grid vulnerability and

would also threaten the 827 jobs in the coal mining

and coal-fired generation industries.

Last, but not least, the power the D.C. Circuit

decision would bestow on EPA is of great economic

consequence to Texas. This is because of both the

economic hardship to the coal mining and generation

industries and the growing threat to reliability and

resilience of the already-stressed Texas electric grid.

As recently as 2014, Texas ranked in the top 5 of coal

production, which came from eight mines producing a

combined 23,306,690 tons of lignite coal annually,

with such lignite being shipped to and consumed by

15 power plants that constitute, by far, the largest

coal-fired power plant fleet in the nation at nearly

20,000 megawatts of capacity. At the time of the last

economic impact study, total annual economic activity

from these industries exceeded $7 billion with over

$1.8 billion in annual labor income from 24,290 jobs

netting over $693 million in annual state and local tax

revenue. Although the industry has contracted with

the retirement of several units and closure of several

mines, the Texas economy is still materially impacted

by coal mines, the plants they supply, and the people

both the mines and plants employ (directly and

indirectly).

Because of the size of the Texas grid, Texas still

consumes the largest amount of coal for power

generation of any state even though the installed

capacity of the coal fleet makes up just 13.4% of the

Texas grid. That is an extremely valuable component

of the grid, however, as recently demonstrated during

the power outages of Winter Storm Uri when that

13.4% capacity (of the portion of Texas governed by

the Electric Reliability Council of Texas (ERCOT))

was called upon to take up the slack for weatherdependent sources and was able to power over 18% of

the grid because of the fuel resilience attributes of coal

during extreme cold.18

Texas’s expanded reliance on coal during the

recent Winter Storm Uri power outages was not

unique. In fact, in the states served by the Southwest

Power Pool (SPP) (Arkansas, Iowa, Kansas, Lousiana,

Minnesota, Missouri, Montana, Nebraska, New

Mexico, North Dakota, Oklahoma, South Dakota, and

parts of Texas and Wyoming), coal dependence

https://www.eia.gov/electricity/gridmonitor/dashboard/electric_

overview/balancing_authority/ERCO

jumped from the installed capacity of 24% to over 46%

of the total generation during the storm.19 In the

states served by the Midcontinent Independent

System Operator (MISO) (North Dakota, South

Dakota, Minnesota, Wisconsin, Michigan, Illinois,

Indiana, Missouri, Arkansas, Louisiana and parts of

Mississippi and Texas), the 30% share of installed

capacity for coal had to cover nearly 48% of the

generation demand during the storm.20

This continued dependence upon coal for fuelresilient power across the majority of the continent

and the multi-state, multi-billion dollar economic

impact of the coal mining and coal-fired power

industries to the states served by LEC and the State

Coal Association Amici, certainly meets the threshold

necessary to warrant application of the major

questions doctrine here. Even if Respondents could

argue that the impact was less or that the role of coal

was shrinking, no reasonable interpretation of the

current state of the grid would conclude that

empowering EPA to take actions to significantly

reduce its use as a fuel in the United States would not

have “vast economic and political significance.”

https://www.eia.gov/electricity/gridmonitor/dashboard/electric_o

verview/balancing_authority/SWPP

https://www.eia.gov/electricity/gridmonitor/dashboard/electric_o

verview/balancing_authority/MISO

CONCLUSION

The D.C. Circuit’s decision brought back to life the

extra-statutory “outside the fence” approach EPA first

attempted in the CPP. It should be rejected once more

by this Court, but done so in a way that restores

cooperative federalism and the predictability that

agency powers will not be allowed to be inferred on

such a grandiose scale as the D.C. Circuit would

permit. Instead, D.C. Circuit and, by extension, the

EPA, must be returned to the approach that made

American

environmental

regulation

great—

partnering with states to control pollution with

technology, not ideology.

It is through the development and deployment of

technology, once commercially demonstrated, that the

United States has made its air and water safe while

respecting the primary role of states and remaining

globally competitive. The D.C. Circuit’s decision

illegally expands EPA’s authority and allows it to

regress back to imposing ideological policy preferences

that pick winners and losers from the top down with

vast economic and political consequences for LEC’s

members, those of the State Coal Association Amici,

and the citizens of energy producing (and consuming)

states across the country.

The Court should reverse the D.C. Circuit’s

decision.

Respectfully submitted,

Michael J. Nasi

Counsel of Record

JACKSON WALKER L.L.P.

100 Congress Ave.,

Suite 1100

Austin, Texas 78701

mnasi@jw.com

(512) 236-2216

December 16, 2021

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