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.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE THE

COMPETITIVE ENTERPRISE INSTITUTE IN

SUPPORT OF PETITIONERS

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

December 17, 2021

Attorneys for Amicus Curiae

i

QUESTION PRESENTED

In 42 U.S.C. § 7411(d), an ancillary provision of the

Clean Air Act, did Congress constitutionally authorize

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, nonair impacts,

and energy requirements?

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS ............................................. ii

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

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 2

I. THE LEGISLATIVE HISTORY OF THE CLEAN

AIR ACT SHOWS THAT CONGRESS DID NOT

DELEGATE THE AUTHORITY TO REDESIGN

ENTIRE INDUSTRIES TO EPA ........................... 2

II. THE CPP ILLEGITIMATELY CHANGES THE

BALANCE BETWEEN THE FEDERAL

GOVERNMENT AND THE STATES .................. 12

III.CONGRESS USED CATEGORICALLY

DIFFERENT LANGUAGE WHEN EXPRESSLY

AUTHORIZING GENERATION-SHIFTING FOR

SO2 EMISSIONS; THIS FURTHER

UNDERCUTS THE CLAIM THAT IT

IMPLIEDLY AUTHORIZED GENERATIONSHIFTING FOR CO2 EMISSIONS ...................... 14

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

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Central Bank of Denver v. First Interstate Bank, 511

U.S. 164 (1994) …………………...……...… 15-16

Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000)……………….......… 3

Franklin Nat’l Bank v. New York, 347 U.S. 373 (1954)

……………………………………………………...16

MCI Telecommunications Corp. v. AT&T Co., 512

U.S. 218 (1994) ……….………….……………… 3

Russello v. United States, 464 U. S. 16 (1983)

…………………………………………………….. 16

Utility Air Regulatory Group v. EPA, 573 U.S. 301

(2014) ……………………………………….…… 12

Whitfield v. United States, 543 U.S. 209 (2005) ….. 15

Statutes & Legislation

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

Clean Energy Standard Act of 2012 (proposed) ……. 7

S.J. Res. 24 (2015) ……………………………..…… 2, 10

S. 1630, Sec. 216(1) (proposed) …………………..…… 4

iv

Regulations

EPA, Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric Utility

Generating Units; Final Rule, 80 FR 64662

(2015) …………………………... 3, 9, 9n.2, 14, 15

EPA, Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric Utility

Generating Units, 79 FR 34851 (2014)

……………………………………………..… 9, 9n.2

EPA, Repeal of Carbon Pollution Emission Guidelines

for Existing Stationary Sources, 82 FR 48042

(2017) ………………………………………….… 15

EPA, Repeal of the Clean Power Plan, 84 FR 32529

(2019) ………………………………………….… 12

EPA, Standards of Performance for New Stationary

Sources: State Plans for the Control of Certain

Pollutants from Existing Facilities, 40 FR

53340 (1975)

…………………………………………………..… 17

Other Authorities

Comments of West Virginia et al. EPA-HQ-OAR2017-0545, Feb. 26,

2018……………………………………..............…

12-13

Congressional Record, 161 Cong. Rec. H8822 et seq.,

(Dec. 1, 2015) …………………………… 10, 11, 12

v

EPA, TSD, Computation of Emission Performance

Rate

and

Goal

Computation

(2015)

………................................................................. 9

Executive Office of the President, The President’s

Climate Action Plan, June 2013 …………....… 8

Michael S. Greve, Real Federalism (1999) ………… 13

Arthur B. Laffer, Stephen Moore, Jonathan Williams,

Rich States, Poor States: ALEC-Laffer State

Economic Competitiveness Index, 10th Ed.,

2017, pp. 2-8 ……………………………...… 13-14

Evan Lehmann, “Senate Abandons Climate Effort,

Dealing Blow to President,” New York Times,

July 23, 2010 …………………………………….. 6

Marlo Lewis, “Obama Recycles Waxman-Markey

Utility Sector Target—Neglects to Inform

Congress, Public,” GlobalWarming.Org,

January 26, 2011 ……………………...……...… 7

“Obama’s State of the Union Transcript 2011,”

Politico, January 25, 2011 ………………….…. 7

Patrick Michaels, “IPCC Political Suicide Pill:

Politicians who legislated based on the IPCC’s

increasingly flawed findings lose their jobs,”

National Review, September 26, 2013

…………………………….............................… 6-7

Press Conference by the President, November 3, 2010

…………………………………………………....… 7

vi

Robert Puentes, “A Linked-Fee for Carbon

Reduction?” The Avenue-Brookings Institution,

March 12, 2010 ………..................................… 6

Darren Samuelsohn, “Greens Defend Climate

Tactics,” Politico, August 5, 2010 …………..… 6

Darren Samuelsohn, “Reid Warms to July Climate

Vote,” Politico, July 13, 2010 …………..…… 5-6

Ilya Somin, Free to Move: Foot Voting, Migration,

and Political Freedom (2020) ……………..…. 13

Bryan Walsh, “EPA’s CO2 Finding: Putting a Gun to

Congress’s Head,” Time, April 18, 2009 .….… 5

Barry R. Weingast, The Economic Role of Political

Institutions: Market-Preserving Federalism

and Economic Development, 11 J.L. Econ. &

Org. 1 (1995) …………………………………… 13

William Yeatman, “On Energy Policy, Debate Obama

Bears No Resemblance to Real Life Obama,”

GlobalWarming.Org, October 17, 2012 …....… 8

1

INTEREST OF AMICUS CURIAE 1

The Competitive Enterprise Institute (“CEI”) is a

nonprofit 501(c)(3) organization incorporated and

headquartered in Washington, D.C., dedicated to

promoting the principles of free markets and limited

government. Since its founding in 1984, CEI has

focused on raising public understanding of the

problems of overregulation. It has done so through

policy analysis, commentary, and litigation. In the

field of energy and environmental policy in particular,

CEI has long been active in opposing unfounded

government claims of authority aimed at restricting

energy use.

SUMMARY OF ARGUMENT

EPA claims the power to redesign entire industries,

but such authority is not expressly provided for in

statute. Congress has never acted as if it has delegated

such authority to EPA.

When the CAA was created, global warming wasn’t

even a concern; when global warming was later added

via amendment, those additions were expressly

confined to non-regulatory contexts. President Obama

tried to get cap-and-trade legislation enacted by

Congress but failed. The Clean Power Plan (“CPP”)

issued by the Obama administration is a near replica

1 Pursuant to Rule 37.6, amicus affirm that no counsel for a party

authored this brief in whole or in part, that no such counsel or

party made a monetary contribution intended to fund the

preparation or submission of the brief, and that no person other

than amicus, their members, or their its counsel made such a

monetary contribution. All parties have consented to the filing of

this brief.

2

of the legislative initiative that it failed to get through

Congress. The purpose of the CPP is to do an end-run

around Congress and enact policy in direct opposition

to what Congress was willing to enact.

In response, Congress directly, explicitly, and

contemporaneously repudiated the legal authority of

the CPP when it passed S.J.Res. 24, which was vetoed

by President Obama.

In light of this legislative history, it cannot be

presumed, as EPA claims, that Congress intended to

delegate to EPA the massive and sweeping power to

redesign a significant part of the economy—including,

in effect, the abolition of the coal industry.

The CPP also has a substantial effect on federalism

and state authority. The CPP’s underlying objective,

and predictable consequence, is to undermine other

states’ energy cost advantage relative to California

and the Regional Greenhouse Gas Initiative (“RGGI”)

states.

The explicit generation-shifting that Congress

chose to enact for SO2 cannot serve to justify the CPP.

Congress used categorically different language in

enacting the former. This shows that Congress knows

how to authorize such generation-shifting when it

chooses to, and that it chose not do so for CO2.

ARGUMENT

I. THE LEGISLATIVE HISTORY OF THE CLEAN

AIR ACT SHOWS THAT CONGRESS DID NOT

DELEGATE THE AUTHORITY TO REDESIGN

ENTIRE INDUSTRIES TO EPA

EPA’S CPP rests on the audacious claim that

Congress intended to allow EPA to redesign from the

3

ground up, or abolish, entire industries, via rules that

“establish[] standards of performance for any existing

source for any air pollutant.” 42 U.S.C § 7411(d).

Through the CPP, EPA claims to be the nation’s defacto czar for any emitting industry, controlling

hundreds of billions of dollars in private energy

infrastructure investment over the next several

decades. This claim cannot be simply presumed; it

must rest on explicit statements from Congress. Food

& Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 160 (2000) (“we are 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.”).

In fact, the legislative history makes clear that

Congress did not believe it had delegated such

sweeping powers to EPA. Congress enacted CAA

section 111 in 1970 and amended it in 1977 and 1990.

The 1990 language is virtually identical to the 1970

language. EPA, Carbon Pollution Emission Guidelines

for Existing Stationary Sources: Electric Utility

Generating Units; Final Rule, 80 FR 64662, 64700

(2015). But in 1970, when global warming was not

even a concern discussed by Congress, it could hardly

have intended that CAA section 111 authorize EPA to

de-carbonize, redesign, or in effect abolish entire

industries such as the power sector or the coal

industry. MCI Telecommunications Corp. v. AT&T

Co., 512 U.S. 218, 231 (1994) (“It is highly unlikely

that Congress would leave the determination of

whether an industry will be entirely, or even

substantially, rate-regulated to agency discretion.”).

Indeed, the 1970 and 1977 texts of the CAA do not

mention “carbon dioxide,” “greenhouse gases,”

4

“greenhouse effect,” or “global warming.” Not until the

1990 amendments does the CAA address global

climate change, but then only in non-regulatory

provisions.

The first reference to any of these terms came up in

1989, when S. 1630, the Senate version of the 1990

CAA Amendments, contained a provision (section 206)

to establish CO2 emission standards for new motor

vehicles. S. 1630, Sec. 216(1), as introduced (1989).

The Senate Environment and Public Works

Committee approved a bill called “The Stratospheric

Ozone and Climate Protection Act,” envisioned as Title

VII of the amended CAA. Id. Title VII would have

authorized EPA to regulate ozone-depleting

substances based in part on their “global warming

potential” and establish CO2 and methane emission

reduction as a national goal. Id. The full Senate

deleted the automobile CO2 standards. S. 1630, Sec.

216(1), as enrolled (1989).

Instead of declaring a national goal to reduce CO2

and methane emissions, Congress directed EPA, in

CAA section 103(g), to develop “non-regulatory

strategies and technologies” to reduce CO2 among

other “multiple air pollutants” from stationary

sources. The phrase “non-regulatory” occurs six times

in the section. Instead of directing EPA to consider

global warming potential when regulating ozone

depleting chemicals, Congress directed the agency, in

CAA section 602(e), to “publish” (i.e., study) the global

warming potential of such substances.

Moreover, both provisions admonish EPA not to

jump to regulatory actions. After including CO2 among

“multiple air pollutants,” CAA section 103(g) states:

“Nothing in this subsection shall be construed to

5

authorize the imposition on any person of air pollution

control requirements.” Similarly, after mentioning

“global warming potential,” CAA section 602(e) states:

“The preceding sentence shall not be construed to be

the basis of any additional regulation under this

chapter [i.e., the CAA].”

In short, when Congress last amended CAA section

111(d), it also told the agency not to control CO2

emissions from stationary sources and not to regulate

other substances based on global warming potential.

During 2009-2010, President Obama and EPA

administrator Lisa Jackson tried to use the threat of

EPA regulation of GHGs to coerce Congress into

passing a cap-and-trade bill. They warned that an

EPA-run system would be less efficient, less

predictable, and less attuned to regional interests than

the “clean energy and climate legislation” the House

was debating. Bryan Walsh, “EPA’s CO2 Finding:

Putting a Gun to Congress’s Head,” Time, April 18,

2009, http://content.time.com/time/health/article/0,85

99,1892368,00.html. Their sales pitch was that,

however strong congressional opposition to cap-andtrade might be, opposition to an EPA-run system was

even stronger.

Nonetheless, cap-and-trade failed. In June 2009,

the House narrowly passed the cap-and-trade bill

sponsored by Reps. Henry Waxman (D-Calif.) and Ed

Markey (D-Mass.). Public opinion quickly turned

against what was termed “cap-n-tax.” Over the next

year, several senators tried to line up bipartisan

support for companion legislation, without success.

Rebranding the policy as “pollution control” and

“linked fee” did not mollify opponents. Darren

Samuelsohn, “Reid Warms to July Climate Vote,”

6

Politico,

July

13,

2010,

https://www.politico.com/story/2010/07/reid-warmsto-july-climate-vote-039677

(“Underscoring

the

delicate nature of the issue, Reid insisted that the

proposal he will introduce in about 10 days should not

be called a cap-and-trade plan or even a cap on

emissions. ‘I don’t use that,’ Sen. Reid said. ‘Those

words are not in my vocabulary. We’re going to work

on pollution.’”); Robert Puentes, “A Linked-Fee for

Carbon

Reduction?”

The

Avenue-Brookings

Institution,

March

12,

2010,

https://www.brookings.edu/blog/theavenue/2010/03/12/a-linked-fee-for-carbon-reduction/.

$100 million lobbying campaign by environmentalist

groups failed to win a “single Republican convert” to

cap-and-trade. Darren Samuelsohn, “Greens Defend

Climate Tactics,” Politico, August 5, 2010,

https://www.politico.com/story/2010/08/greens-defendclimate-tactics-040680. In late July, Senate leaders

scuttled plans to vote on a Senate version of the bill.

Evan Lehmann, “Senate Abandons Climate Effort,

Dealing Blow to President,” New York Times, July 23,

2010,

https://archive.nytimes.com/www.nytimes.com/cwire/

2010/07/23/23climatewire-senate-abandons-climateeffort-dealing-blow-88864.html.

Cap-and-trade was arguably the key issue on which

Democrats lost control of the House in the November

2010 elections. In the House races, “virtually every

close race was lost by a Democrat” who voted for

Waxman-Markey, noted climate scientist Patrick J.

Michaels. Patrick Michaels, “IPCC Political Suicide

Pill: Politicians who legislated based on the IPCC’s

increasingly flawed findings lose their jobs,” National

Review,

September

26,

2013,

7

http://www.nationalreview.com/article/359556/ipccpolitical-suicide-pill-patrick-j-michaels. In contrast,

the Senate never voted on cap-and-trade, and “every

close Senate race was won by a Democrat.” Id.

On the day after the 2010 elections, President

Obama remarked that cap-and-trade was “just one

way of skinning the cat” and vowed to find “other

means” of addressing climate change. Press

Conference by the President, November 3, 2010,

https://obamawhitehouse.archives.gov/the-pressoffice/2010/11/03/press-conference-president. In his

2011 state of the union speech, he proposed a national

clean energy standard (CES) whereby 80 percent of

U.S. electric power would come from “clean sources” by

2035. Obama’s State of the Union Transcript 2011,

Politico,

January

25,

2011,

https://www.politico.com/story/2011/01/obamas-stateof-the-union-transcript-2011-full-text-048181.

Although he did not mention it, the proposed standard

was virtually identical to the 2030 electricity fuel mix

projected by the U.S. Energy Information

Administration (EIA) for the Waxman-Markey bill.

Marlo Lewis, “Obama Recycles Waxman-Markey

Utility Sector Target—Neglects to Inform Congress,

Public,” GlobalWarming.Org, January 26, 2011,

http://www.globalwarming.org/2011/01/26/obamarecycles-waxman-markey-utility-sector-targetneglects-to-inform-congress-public/.

In March 2012, Sen. Jeff Bingaman (D-N.M.)

introduced a CES bill based on Obama’s proposal. S.

2146, Clean Energy Standard Act of 2012,

https://www.congress.gov/bill/112th-congress/senatebill/2146.The legislation went nowhere. The Senate

8

Energy and Natural Resources Committee held a

hearing on the bill but did not vote on it.

Regulatory climate policy had so little appeal

through the end of 2012 that neither President Obama

nor Democratic lawmakers campaigned for cap-andtrade, a national clean energy standard, or a successor

treaty to the Kyoto Protocol. Indeed, on energy policy,

President Obama claimed credit for the shale boom

and ran to the right of GOP candidate Mitt Romney,

accusing his rival of being anti-coal. William Yeatman,

“On Energy Policy, Debate Obama Bears No

Resemblance

to

Real

Life

Obama,”

GlobalWarming.Org,

October

17,

2012,

http://www.globalwarming.org/2012/10/17/on-energypolicy-debate-obama-bears-no-resemblance-to-reallife-obama/.

Although presidential candidate Obama had run

from climate policy during his 2012 election campaign,

once re-elected, he governed to suppress the

production, transport, and use of fossil fuels via

executive action. In June 2013, President Obama

unveiled his Climate Action Plan, which directed EPA

“to work expeditiously to complete carbon pollution

standards for both new and existing power plants.”

Executive Office of the President, The President’s

Climate

Action

Plan,

June

2013,

https://obamawhitehouse.archives.gov/sites/default/fil

es/image/president27sclimateactionplan.pdf. One year

later, EPA proposed the CPP.

Several passages in the CPP demonstrate that EPA

intended to use it to pressure states into adopting and

joining statewide and regional cap-and-trade

programs. The final CPP emphasizes that states’

“rate-based” performance goals are easily converted

9

into “mass-based” goals—i.e., the tonnage targets or

“caps” characteristic of cap-and-trade programs. EPA,

Carbon Pollution Emission Guidelines for Existing

Stationary Sources: Electric Utility Generating Units,

79 FR 34851, 34887, 34891-34898; EPA, TSD,

Computation of Emission Performance Rate and Goal

Computation, 2015, pp. 20-25. 2

Even though the final CPP replaced state-specific

with source-specific (coal and gas) performance rates,

the rule still effectively regulates emissions as if each

state power sector—and ultimately the U.S. power

sector as a whole—were a single source ripe for

regulation under a cap-and-trade program. The CPP

describes the U.S. power sector as a “physically

interconnected,”

“coordinated”

“system”

of

“interdependent” actors, “integrated across large

regions,” which operates as a “single,” “complex

machine.” 80 FR 64725-64726, 64739, 64740, 6476864769, 64677.

The purpose of the CPP is to make an end-run

around Congress and enact policy in direct opposition

The proposed CPP estimates that a “regional compliance

approach” (multi-state emissions trading) would lower CPP

compliance costs in 2030 from $7.5 billion to $5.5 billion (79 FR

34839-43840), repeatedly mentions that states are allowed to

convert their rate-based into mass-based goals, and explains the

conversion methodology in an accompanying Technical Support

Document (79 FR 34892). The final CPP even more strongly

pushes cap-and-trade. It publishes states’ mass-based goals “so

that states can move quickly to establish mass-based programs

such that their affected EGUs readily qualify to trade with

affected EGUs in states that adopt the same approach” (80 FR

64962-64963, 64675). It also describes mass-based trading as the

most efficient and flexible emission-reduction strategy (80 FR

64726, 64835).

2

10

to what Congress had decided. Had Reps. Waxman

and Markey sponsored legislation authorizing EPA to

de-carbonize the U.S. power sector as it sees fit under

CAA Section 111, the bill almost certainly would have

been dead on arrival.

This is further demonstrated by the fact that in

2015 the House and Senate each passed S.J. Res. 24, a

Congressional Review Act resolution of disapproval to

abolish the CPP as not lawful under the CAA.

The purpose of S.J. Res. 24 was described by Rep.

Mullin (OK-02) as: “Today, we are here to use this tool

to rein in a President who has forgotten that the

legislative branch makes the laws and that the

executive branch enforces them. The final rules

regarding emissions from new and existing power

plants are a clear executive overreach. In issuing these

rules, EPA has acted outside the authority it was

granted by Congress in the Clean Air Act.” 161 Cong.

Rec. H8822 (Dec. 1, 2015).

Rep. Cramer (ND-at large) announced that

President Obama “doesn’t have the right to break the

law because he couldn’t get a law changed when he had

a Democratic House and a Democratic Senate. And

that is what we are here to talk about, the violation of

the law.” Id. at H8828.

“EPA’s actions violate the words and the intent of

the Clean Air Act,” according to Rep. Olson (TX-22). Id.

at H8829.

Rep. Womack (AR-3) described the problem as

follows: “The Constitution clearly states that

legislative powers are vested in the Congress. The

Clean Power Plan is a clear attempt to take

11

policymaking out of the hands of Congress. That is

unacceptable.” Id. at H8833.

In passing S.J. Res. 24, Rep. Whitfield (KY-1)

argued that it shows that Congress “believe[s] the

President has exceeded his legal authority” through

the CPP. Id. at H8836.

It is against the backdrop of this direct, explicit, and

contemporaneous repudiation of the CPP’s legal

authority under the CAA by both houses of Congress

that EPA asks this Court to find that Congress

implicitly intended to grant such authority without

saying so explicitly.

The CPP was, in a sense, a climate coup in which an

administrative agency usurped legislative power from

the people’s representatives to impose a major

national policy initiative with no democratic

legitimacy.

Not only did Congress explicitly repudiate the legal

basis for the CPP, it also underscored this regulation’s

extraordinary implications—and it follows from those

implications that this Court cannot presume that

Congress intended to leave this in EPA’s hands.

Rep. Bost (IL-12) warned of the consequences of this

regulation: the “Clean Power Plan rule is a dagger

aimed at the heart of the coal industry and affordable,

American-made energy.” Id. at H8831. “That is an

unbearable burden on working families, seniors, and

those people who are on set incomes.” Id. While Rep.

Olson (TX-22) said, “These rules destroy new coal

power in America.” Id. at H8829.

Rep. Johnson (LA-4) said that it would cause “retail

electricity prices doubling in 40 States.” Id. at H8832.

Rep. Duncan (SC-3) described the threat of this

12

regulation to the entire American society as: “We rely

on 24/7, always on, baseload power to run the engines

of our society to heat and cool our homes. We can’t do

that with intermittent solar and wind.” Id. at H8825.

Even EPA came to recognize these problems,

describing that the CPP’s “generation-shifting scheme

was projected to have billions of dollars of impact on

regulated parties and the economy, would have

affected every electricity customer (i.e., all Americans),

was subject to litigation involving almost every State

in the Union, and, as discussed in the following

section, would have disturbed the state-federal and

intra-federal jurisdictional scheme.” EPA, Repeal of

the Clean Power Plan, 84 FR 32529 (2019).

In light of the devastating impacts described above

of, in effect, abolishing the entire coal industry, it

cannot be presumed that such an important decision

was left up to EPA to decide. This issue falls squarely

in the category of major questions having “vast

economic and political significance” that this Court

described in Utility Air Regulatory Group v. EPA, 573

U.S. 301, 324 (2014) (internal quotation marks

omitted). The notion that Congress implicitly

delegated this major power in 1970, 1977, or 1990 is

fundamentally at odds with the historical record.

II. THE CPP ILLEGITIMATELY CHANGES THE

BALANCE BETWEEN THE FEDERAL

GOVERNMENT AND THE STATES

As noted by West Virginia in comments to EPA that

were joined by twenty other states, regulation of retail

electricity markets is a “traditional state power” upon

which EPA may not encroach “unless Congress has

clearly authorized such intrusion.” Comments of West

Virginia et al. EPA-HQ-OAR-2017-0545, Feb. 26,

13

2018,

pp.

6-7,

https://ago.wv.gov/Documents/ANPR%20Comment%2

0Letter.PDF.

In addition, the CPP would constitute a major shift,

endangering our federal system’s ability to restrain

the cost and growth of government.

Federalism is a structural pillar of our republic.

From a citizen’s perspective, the virtues of federalism

include safeguarding economic opportunity and

checking abuses of power. Barry R. Weingast, The

Economic Role of Political Institutions: MarketPreserving Federalism and Economic Development, 11

J.L. Econ. & Org. 1 (1995); See also, Michael S. Greve,

Real Federalism (1999) (“Federalism is about

competition among the states. It serves not so much to

empower the states but to discipline them”).

Federalism enables Americans to “vote with their feet”

for or against policy regimes they like or dislike. Ilya

Somin, Free to Move: Foot Voting, Migration, and

Political Freedom (2020). When a state’s tax and

regulatory policies make it hard to find gainful

employment, start a business, or compete in the global

marketplace, citizens and firms can relocate to states

with more efficient policies. In so doing, they punish

the anti-growth states by imposing brain drain, loss of

tax revenue, and even loss of seats in the House of

Representatives. They simultaneously reward the progrowth states to which they move with an increase in

human and financial capital, a bigger tax base, and

additional House seats. Arthur B. Laffer, Stephen

Moore, Jonathan Williams, Rich States, Poor States:

ALEC-Laffer State Economic Competitiveness Index,

Ed.,

2017,

pp.

2-8,

10th

14

https://www.alec.org/app/uploads/2018/01/RSPS2017-WEB.pdf.

The CPP cites California’s Global Warming Policy

Solutions Act and the Northeast Regional Greenhouse

Gas Initiative (RGGI) as examples of what “states” are

“already” doing to control power-sector CO2 emissions.

80 FR 64725, 64769, 64919. But, in fact, the CPP

establishes an EPA-coordinated policy cartel,

imposing on the entire country California/RGGI-style

energy policies and prices. The CPP’s predictable

consequence—and an underlying objective—is to

undermine other states’ energy cost advantage

relative to California and the RGGI states.

Over time, the CPP could have large impacts on

national political balances. There is little point in

electing governors and legislators who champion

innovative, problem-solving energy policies if federal

regulations do not allow states to pursue such policies.

III. CONGRESS USED CATEGORICALLY

DIFFERENT LANGUAGE WHEN EXPRESSLY

AUTHORIZING GENERATION-SHIFTING

FOR SO2 EMISSIONS; THIS FURTHER

UNDERCUTS THE CLAIM THAT IT

IMPLIEDLY AUTHORIZED GENERATIONSHIFTING FOR CO2 EMISSIONS

It is unreasonable to infer authority under CAA

section 111 from other CAA provisions in which such

generation-shifting authority is explicitly granted. As

EPA noted when it proposed to repeal the CPP:

Congress expressly established the cap-and-trade

program [for SO2] under title IV, 42 U.S.C. 7651–

7651o, and expressly authorized the use of

‘‘marketable permits’’ to implement ambient air

15

quality standards under CAA section 110, id. at

§7410(a)(2)(A). We think it unlikely that Congress

would have silently authorized the Agency to point

to trading [in other parts of the Act] in order to

justify generation-shifting as a ‘‘system of emission

reduction” [under CAA section 111(d)].

Repeal of Carbon Pollution Emission Guidelines for

Existing Stationary Sources, 82 FR 48042 (2017).

There is no evidence in the statute, legislative

history, or regulatory history that Congress intended

for CAA section 111(d) to kill the coal industry, revise

the nation’s electricity fuel mix, supervise state

electric power resource development, or herd states

into cap-and-trade programs.

EPA argues, in the CPP, that its conception of “best

system of emissions reduction” “mirrors Congress’

approach to regulating air pollution in this sector, as

exemplified by Title IV of the CAA,” which created a

system of marketable permits for sulfur dioxide (SO2)

emissions. Congress “designed the SO2 portion of that

program with express recognition of the sector’s ability

to shift generation among various EGUs, which

enabled pollution reduction by increasing reliance on

natural gas-fired units and RE [renewable

electricity].” 80 FR 64665, 64678. However, all that

proves is that when Congress wants power plants to

reduce emissions through generation shifting, it

knows how to make its intent clear. Whitfield v. United

States, 543 U.S. 209, 216 (2005) (“Congress … clearly

demonstrating that it knows how to impose such a

requirement when it wishes to do so.”); Central Bank

of Denver v. First Interstate Bank, 511 U.S. 164, 17677 (1994). See also Franklin Nat’l Bank v. New York,

16

347 U.S. 373, 378 (1954) (finding “no indication that

Congress intended to make this phase of national

banking subject to local restrictions, as it has done by

express language in several other instances.”).

CAA section 111 contains none of the Title IV’s SO2related

vocabulary

(“allowance,”

“auction,”

“purchaser,” “seller,” “sales price,”, CAA section 416,

“percentage of total generation decreased,” CAA

section 404(e)(1), “reduced output at the affected

source,” CAA section 408(c)(1)(B)) that indicates a

congressional intent to promote generation shifting.

“[W]here Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464

U. S. 16, 23 (1983).

Moreover, when Congress enacted Title IV in 1990,

it did not abandon technology-based regulation of

electric power plants. The Title IV provision on clean

coal technology clearly echoes EPA’s historic

understanding of CAA section 111 performance

standards: “This subsection applies to physical or

operational changes to existing facilities.” CAA Title

IV, Section 415.

Although not discussed in the repeal proposal,

Congress did not intend CAA section 111(d) to be used

to control ubiquitous air pollutants—those that “result

from numerous or diverse mobile or stationary

sources.” CAA section 108(a). As EPA’s 1975

implementing regulation explains, a major purpose of

CAA section 111(d) is to control pollutants ineligible

for regulation under the national ambient air quality

standards (NAAQS) program because such pollutants

17

“are not emitted from ‘numerous or diverse’ sources as

required by section 108.” EPA, Standards of

Performance for New Stationary Sources: State Plans

for the Control of Certain Pollutants from Existing

Facilities, 40 FR 53340 (1975). Carbon dioxide,

however, is emitted by more numerous and diverse

sources than any other substance regulated under the

CAA.

As the implementing rule also explains, because

CAA section 111(d) air pollutants are not emitted by

numerous or diverse sources, the health and welfare

problems caused by such pollutants are “highly

localized.” 40 FR 53342. In other words, proximity to

the source largely determines the health and welfare

risks posed by such pollutants. That is another

indication that Congress did not intend for CAA

section 111(d) to regulate CO2. The CO2-greenhouse

effect is global, not local. Whatever the impacts of CO2

on global climate, or the impacts of climate change on

particular communities, climate change risks have

nothing to do with proximity to any source.

In short, carbon dioxide and CAA section 111(d) are

a complete mismatch.

18

CONCLUSION

For the foregoing reasons, the Court should reverse

the D.C. Circuit because the Affordable Clean Energy

Rule’s repeal of the Clean Power Plan was properly

based on the lack of delegated authority to EPA to

decide such a major question.

Respectfully submitted,

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

Attorneys for Amicus Curiae

December 17, 2021