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

Supreme Court briefDec 20, 2021

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No. 20-1530

(Consolidated with Nos. 20-1531,

20-1780, and 20-1778)

IN THE

Supreme Court of the United States

————

WEST VIRGINIA, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

————

BRIEF OF 91 MEMBERS OF CONGRESS

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

JEFFREY S. BEELAERT

Counsel of Record

STEIN MITCHELL BEATO &

MISSNER LLP

901 Fifteenth St., NW

Suite 700

Washington, D.C. 20005

(202) 737-7777

jbeelaert@steinmitchell.com

Counsel for Amici Curiae

December 20, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

STATEMENT OF INTEREST ............................

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

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

I. The major questions doctrine forecloses

the EPA’s far-reaching assertion of

agency power .............................................

II. In recent years, Congress has addressed

greenhouse gas emissions in several bills

that the President has signed into law ....

A. Congress has authorized transformative incentives for new technologies

and appropriated billions of dollars

for new programs .................................

B. Outside of the Clean Air Act, Congress

passed a new law to reduce greenhouse gas emissions. ...........................

C. Within the Clean Air Act, Congress

has added only references to

carbon dioxide and greenhouse gas

emissions..............................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Am. Bar Ass’n v. FTC,

430 F.3d 457 (D.C. Cir. 2005) ...................

Bowsher v. Synar,

478 U.S. 714 (1986) ...................................

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) .....................................

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................... 9, 11

Gonzales v. Oregon,

546 U.S. 243 (2006) ...................................

Mistretta v. United States,

488 U.S. 361 (1989) ...................................

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) ...................

Rodriguez v. United States,

480 U.S. 522 (1987) ...................................

United States v. Philadelphia Nat’l Bank,

374 U.S. 321 (1963) ...................................

United States Forest Serv. v. Cowpasture

River Pres. Ass’n,

140 S. Ct. 1837 (2020) ...............................

Utility Air Regulatory Grp. v. EPA,

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

Whitman v. Am. Trucking Ass’ns,

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

iii

TABLE OF CONTENTS

STATUTES

Page

23 U.S.C. § 175 .............................................

26 U.S.C. § 45Q(b) ........................................

26 U.S.C. § 45Q(c) (2008) .............................

26 U.S.C. § 45Q(d) (2020) .............................

American Innovation and Manufacturing

Act:

42 U.S.C. § 7675 ........................................

42 U.S.C. § 7675(e).................................... 17, 18

42 U.S.C. § 7675(f) ....................................

42 U.S.C. § 7675(i) ....................................

Bipartisan Budget Act of 2018, Pub. L. No.

115-123, 132 Stat. 162–68 ........................

Clean Air Act:

§ 103(a), 42 U.S.C. § 7403(a) ....................

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

§ 211(o), 42 U.S.C. § 7545(o) ..................... 19, 20

Clean Air Act Amendments of 1990, Pub. L.

No. 101-549, 104 Stat. 2703 .....................

Consolidated Appropriations Act of 2021,

Pub. L. No. 116-260:

Div. S, 134 Stat. 2243–72 ..........................

Utilizing Significant Emissions with

Innovative Technologies (USE IT) Act,

§ 102, 134 Stat. 2243–55 ....................... 15, 20

§ 102(b), 134 Stat. 2244–47...................

TABLE OF AUTHORITIES—Continued

Page(s)

American Innovation and Manufacturing

(AIM) Act, § 103,

134 Stat. 2255–72 ........................................... 15

Div. Z, tit. IV, 134 Stat. 2529 ....................

Div. Z, tit. VI, 134 Stat. 2553–56 ..............

Energy Improvement and Extension Act of

2008, Pub. L. No. 110-343, § 115, 122

Stat. 3829 ..................................................

Energy Independence and Security Act of

2007, Pub. L. No. 110-140, § 201, 121

Stat. 1492, 1519–40 ..................................

121 Stat. 1520 ...........................................

121 Stat. 1532 ...........................................

Infrastructure Investment and Jobs Act,

Pub. L. No. 117-58, 135 Stat. 429 ............ 16, 17

§§ 11401–06, 135 Stat. 546–78 ..................

§ 11403, 135 Stat. 555–58 ......................

§§ 41004, 41007, 41008, 135 Stat. 1128–

30, 1370, 1377–78 ...................................

OTHER AUTHORITIES

166 Cong. Rec. S7909 (daily ed. Dec. 21,

2020) ..........................................................

166 Cong. Rec. S7913 (daily ed. Dec. 21,

2020) ..........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Standards of Performance for New, Reconstructed, and Modified Sources and

Emissions Guidelines for Existing

Sources: Oil and Natural Gas Sector

Climate Review, 86 Fed. Reg. 63,110

(Nov. 15, 2021) ..........................................

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg.

64,662 (Oct. 23, 2015) ...............................

Standards of Performance for Greenhouse

Gas Emissions, 80 Fed. Reg. 64,510 (Oct.

23, 2015) ....................................................

Standards of Performance for New and

Existing Stationary Sources: Electric

Utility Steam Generating Units, 70 Fed.

Reg. 28,605 (May 5, 2005) ........................

Clean Air Act Amendments of 1987:

Hearings on S.300, S.321, S.1351, &

S.1384 before the Subcmte. on Envtl.

Prot. of the S. Cmte. on Env’t & Public

Works, 100th Cong. (1987)........................

Press Release, Capito, Heitkamp Announce

Bipartisan Carbon Capture Technology

Bill Signed Into Law (Feb. 9, 2018),

https://www.capito.senate.gov/news/press

-releases/capito-heitkamp-announce-bipa

rtisan-carbon-capture-technology-bill-sig

ned-into-law ..............................................

STATEMENT OF INTEREST1

Amici are Senators and Representatives duly elected

to serve in the United States Congress, in which the

Constitution vests all legislative powers. As elected

members of Congress, Amici have strong institutional

interests in protecting Congress’s power to enact legislation governing our nation, including laws addressing

greenhouse gas emissions. Amici include:

Senator Shelley Moore Capito of West Virginia

Senate Republican Leader Mitch McConnell of

Kentucky

Representative Cathy McMorris Rodgers of

Washington, 5th Congressional District

Minority Leader Kevin McCarthy of California,

23rd Congressional District

Senator John Barrasso, M.D., of Wyoming

Senator Marsha Blackburn of Tennessee

Senator Roy Blunt of Missouri

Senator John Boozman of Arkansas

Senator Mike Braun of Indiana

Senator Richard Burr of North Carolina

Senator Bill Cassidy, M.D., of Louisiana

Senator John Cornyn of Texas

Pursuant to Supreme Court Rule 37.6, amici represent that

this brief was not authored in whole or in part by any party or

counsel for any party. No person or party other than amici or

their counsel made a monetary contribution to the preparation or

submission of this brief. The parties have filed blanket consents

to the filing of amicus curiae briefs. See S. Ct. R. 37.3.

Senator Tom Cotton of Arkansas

Senator Kevin Cramer of North Dakota

Senator Mike Crapo of Idaho

Senator Ted Cruz of Texas

Senator Steve Daines of Montana

Senator Joni K. Ernst of Iowa

Senator Deb Fischer of Nebraska

Senator Lindsey O. Graham of South Carolina

Senator Bill Hagerty of Tennessee

Senator Josh Hawley of Missouri

Senator John Hoeven of North Dakota

Senator Cindy Hyde-Smith of Mississippi

Senator James M. Inhofe of Oklahoma

Senator Ron Johnson of Wisconsin

Senator John Kennedy of Louisiana

Senator James Lankford of Oklahoma

Senator Mike Lee of Utah

Senator Cynthia M. Lummis of Wyoming

Senator Roger Marshall, M.D., of Kansas

Senator Jerry Moran of Kansas

Senator Lisa Murkowski of Alaska

Senator Rand Paul, M.D., of Kentucky

Senator Rob Portman of Ohio

Senator James E. Risch of Idaho

Senator M. Michael Rounds of South Dakota

Senator Marco Rubio of Florida

Senator Ben Sasse of Nebraska

Senator Rick Scott of Florida

Senator Tim Scott of South Carolina

Senator Richard Shelby of Alabama

Senator Dan Sullivan of Alaska

Senator John Thune of South Dakota

Senator Thom Tillis of North Carolina

Senator Pat Toomey of Pennsylvania

Senator Tommy Tuberville of Alabama

Senator Roger F. Wicker of Mississippi

Senator Todd Young of Indiana

Minority Whip Steve Scalise of Louisiana,

1st Congressional District

Representative Fred Upton of Michigan,

6th Congressional District

Representative Michael C. Burgess of Texas,

26th Congressional District

Representative Robert E. Latta of Ohio,

5th Congressional District

Representative Brett Guthrie of Kentucky,

2nd Congressional District

Representative David B. McKinley of

West Virginia, 1st Congressional District

Representative Adam Kinzinger of Illinois,

16th Congressional District

Representative H. Morgan Griffith of Virginia,

9th Congressional District

Representative Gus M. Bilirakis of Florida,

12th Congressional District

Representative Bill Johnson of Ohio,

6th Congressional District

Representative Billy Long of Missouri,

7th Congressional District

Representative Larry Bucshon of Indiana,

8th Congressional District

Representative Markwayne Mullin of Oklahoma,

2nd Congressional District

Representative Richard Hudson of North Carolina,

8th Congressional District

Representative Tim Walberg of Michigan,

7th Congressional District

Representative Earl L. “Buddy” Carter of Georgia,

1st Congressional District

Representative Jeff Duncan of South Carolina,

3rd Congressional District

Representative Gary J. Palmer of Alabama,

6th Congressional District

Representative Neal P. Dunn of Florida,

2nd Congressional District

Representative John R. Curtis of Utah,

3rd Congressional District

Representative Debbie Lesko of Arizona,

8th Congressional District

Representative Greg Pence of Indiana,

6th Congressional District

Representative Dan Crenshaw of Texas,

2nd Congressional District

Representative John Joyce of Pennsylvania,

13th Congressional District

Representative Kelly Armstrong of North Dakota,

At-Large Congressional District

Representative Troy Balderson of Ohio,

12th Congressional District

Representative Cliff Bentz of Oregon,

2nd Congressional District

Representative Lauren Boebert of Colorado,

3rd Congressional District

Representative Tom Emmer of Minnesota,

6th Congressional District

Representative Russ Fulcher of Idaho,

1st Congressional District

Representative Garret Graves of Louisiana,

6th Congressional District

Representative Doug LaMalfa of California,

1st Congressional District

Representative Dan Meuser of Pennsylvania,

9th Congressional District

Representative Mariannette Miller-Meeks of Iowa,

2nd Congressional District

Representative Carol Miller of West Virginia,

3rd Congressional District

Representative Alex Mooney of West Virginia,

2nd Congressional District

Representative Dan Newhouse of Washington,

4th Congressional District

Representative Ralph Norman of South Carolina,

5th Congressional District

Representative Jay Obernolte of California,

8th Congressional District

Representative August Pfluger of Texas,

11th Congressional District

Representative Guy Reschenthaler of

Pennsylvania, 14th Congressional District

Representative Bruce Westerman of Arkansas,

4th Congressional District

SUMMARY OF ARGUMENT

For decades, Congress has debated policies to address

greenhouse gas emissions in the United States. Elected

members have expressed a wide range of views over

the years as to the appropriate reach and scope of

legislative proposals. Some proposals have succeeded,

and others have not. In recent years, however, Congress has addressed major policy questions concerning

greenhouse gas emissions by enacting legislation, signed

into law by the President, that provides explicit and

specific direction to administrative agencies.

Amici have not necessarily supported the substance

of these laws, but they fully support the legislative

process and together recognize that Congress is the

constitutionally appropriate forum for addressing major

policy questions concerning greenhouse gas emissions

from the electric power sector.

In deciding this case, the Court must consider the

appropriate scope of Section 111(d) of the Clean Air

Act, which the Environmental Protection Agency

attempted to morph into a broad grant of authority for

the agency to regulate greenhouse gas emissions from

the electric power sector. Relying on an exceptionally

broad interpretation of Section 111(d), the EPA issued

a rule seeking to set emission guidelines for power

plants as part of the agency’s “Clean Power Plan.” 80

Fed. Reg. 64,510, 64,547 (Oct. 23, 2015). This Court

rightfully stayed that rule before it could go into effect.

If Congress had intended to give the EPA such

sweeping authority to transform an entire sector of our

economy, Congress would have done so explicitly. An

administrative agency like the EPA may decide issues

of such vast economic and political significance only

when the agency can point to “clear congressional

authorization.” Utility Air Regulatory Grp. v. EPA,

573 U.S. 302, 324 (2014). The ancillary provision of

the Clean Air Act relied on by the EPA provided no

such authority.

Section 111(d) provides limited authority for the

EPA to prescribe regulations in certain narrow circumstances. Section 111(d) does not provide the EPA

with the authority to compel a substantial and costly

shift in electric power generation across the entire

nation.

Decisions regarding greenhouse gas emissions and

the power sector are major policy questions with vast

economic and political significance. Only elected members of Congress, representing the will of the people,

may decide these questions. The EPA’s attempt to

issue expansive regulations cannot stand in the

absence of clear congressional authorization.

Congress knows how to address greenhouse gas

emissions. In recent years, Congress has decided to

pass transformative laws that incentivize reductions

in greenhouse gas emissions from a wide range of

industries, including the electric power sector. These

laws include favorable tax treatment for certain

technologies as well as grants to support research

and development, thus providing “carrots,” not

“sticks,” to achieve emissions reductions. Congress

also has vested the EPA with new regulatory

authority—outside of the Clean Air Act—to regulate

hydrofluorocarbons, one type of greenhouse gas.

When Congress intends to address the reduction of

greenhouse gas emissions, it specifically does so in

plain legislative text.

ARGUMENT

I. The major questions doctrine forecloses

the EPA’s far-reaching assertion of agency

power.

This Court rightly expects “Congress to speak

clearly” when it wishes to delegate to an administrative agency sweeping regulatory powers to decide

divisive issues “of vast economic and political significance.” Utility Air Regulatory Grp., 573 U.S. at 324

(internal quotation marks omitted). This straightforward principle makes “common sense” because it

connects the people to significant policy choices made

by their government. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000). Indeed, the

Framers deliberately structured the federal government “to assure full, vigorous, and open debate on the

great issues affecting the people and to provide

avenues for the operation of checks on the exercise of

governmental power.” Bowsher v. Synar, 478 U.S.

714, 723 (1986).

By careful design, our Constitution “prescribes a

process for making law, and within that process there

are many accountability checkpoints.” Dep’t of Transp.

v. Ass’n of Am. Railroads, 575 U.S. 43, 61 (2015) (Alito,

J., concurring). Public debate—even fervent opposition to a policy choice one way or the other—enhances

the people’s engagement with their government. Elected

representatives of the people, not administrative

agencies, therefore must be responsible for making the

difficult policy choices that have tremendous economic

and political impacts on our entire nation.

When Congress settles major policy questions by

democratically enacting laws, it strengthens the connection between the people and governmental regulation.

Laws that profoundly impact the national economy

often require political value choices. See, e.g., United

States v. Philadelphia Nat’l Bank, 374 U.S. 321, 371

(1963) (referring to a “value choice” made by Congress

in amending banking laws). And, as a democratically

accountable institution, Congress embodies the will

of the people as it debates and decides how best to

proceed. The major questions doctrine thus reflects

well-established principles of democratic rule.

“Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective

is the very essence of legislative choice.” Rodriguez v.

United States, 480 U.S. 522, 526 (1987) (per curiam).

Of course, Congress may delegate some authority to

administrative agencies “under broad general directives” that articulate “an intelligible principle.” Mistretta

v. United States, 488 U.S. 361, 372 (1989). But if

Congress wishes to delegate far-reaching authority to

an agency to vastly alter an existing regulatory scheme,

it must “speak with the requisite clarity to place that

intent beyond dispute.” United States Forest Serv. v.

Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1849

(2020). The simple “act of delegation” cannot suffice

absent a “clear congressional command.” Id.

Congress does not impliedly delegate the authority

to resolve immensely important matters to administrative agencies. Nor does Congress “alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions—it does not, one might

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

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

Gonzales v. Oregon, 546 U.S. 243, 267 (2006).

Any attempt to read into Section 111(d) of the Clean

Air Act the expansive authority to transform the

entire electric power sector must founder on this

fundamental principle. If this Court were to accept a

boundless interpretation of Section 111(d), “it would

bring about an enormous and transformative expansion in EPA’s regulatory authority without clear

congressional authorization.” Utility Air Regulatory

Grp., 573 U.S. at 324. To be sure, “Congress could not

have intended to delegate a decision of such economic

and political significance to an agency in so cryptic a

fashion.” Brown & Williamson, 529 U.S. at 160.

As Congress considered amending the Clean Air

Act decades ago, one of the amendments’ architects

described Section 111(d) as “some obscure, never-used

section of the law.” Clean Air Act Amendments of 1987:

Hearings on S.300, S.321, S.1351, & S.1384 before the

Subcmte. on Envtl. Prot. of the S. Cmte. on Env’t &

Public Works, 100th Cong. 13 (1987). In fact, outside

of regulations focused on emissions from waste facilities, EPA sparingly has relied on Section 111(d) to

regulate emissions of any type from existing sources.2

To accept an expansive reading of Section 111(d) as

providing authority to regulate greenhouse gas emissions and to transform the electric power sector, this

Court “would have to conclude that Congress not only

had hidden a rather large elephant in a rather obscure

E.g., Standards of Performance for New, Reconstructed, and

Modified Sources and Emissions Guidelines for Existing Sources:

Oil and Natural Gas Sector Climate Review, 86 Fed. Reg. 63,110

(Nov. 15, 2021) (proposal to regulate methane from oil and gas

sources); Carbon Pollution Emission Guidelines for Existing

Stationary Sources: Electric Utility Generating Units, 80 Fed.

Reg. 64,662 (Oct. 23, 2015) (Clean Power Plan); Standards of

Performance for New and Existing Stationary Sources: Electric

Utility Steam Generating Units, 70 Fed. Reg. 28,605 (May 5,

2005) (final rule to regulate mercury from power plants), vacated

by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).

mousehole, but had buried the ambiguity in which the

pachyderm lurks beneath an incredibly deep mound of

specificity, none of which bears the footprints of the

beast or any indication that Congress even suspected

its presence.” Am. Bar Ass’n v. FTC, 430 F.3d 457, 468

(D.C. Cir. 2005). There is no good reason for the Court

to reach this conclusion.

“When an agency claims to discover in a long-extant

statute an unheralded power to regulate a significant

portion of the American economy,” this Court understandably has approached that discovery “with a measure

of skepticism.” Utility Air Regulatory Grp., 573 U.S.

at 324 (internal quotation marks omitted). Deciding

how best to address greenhouse gas emissions encompasses precisely the hard choices that must be made

by the elected representatives of the people.

II. In recent years, Congress has addressed

greenhouse gas emissions in several bills

that the President has signed into law.

For decades, Congress has debated legislation to

address greenhouse gas emissions from a variety of

different sectors. Some proposals have become laws,

while others have not. In general, Congress has

addressed greenhouse gas emissions using legislative

“carrots” such as tax incentives, preferential loans,

and federal investments in research and development

aimed at new technologies. Less often, Congress has

employed “sticks” to achieve emissions reductions

through the direct regulation of specific economic

sectors. When it has decided to do so, Congress has

been explicit and deliberate.

A. Congress has authorized transformative incentives for new technologies

and appropriated billions of dollars for

new programs.

1. In 2018, as a component of a larger budget bill,

Congress passed legislation to expand and to improve

a tax credit for the development of carbon capture,

utilization, and storage projects, which the President

signed into law. Originally introduced as the Furthering

carbon capture, Utilization, Technology, Underground

storage, and Reduced Emissions (FUTURE) Act, the

legislation received broad bipartisan and stakeholder

support to incentivize further investment in projects

throughout the United States across a wide range of

industries. See Bipartisan Budget Act of 2018, Pub. L.

No. 115-123, § 41119, 132 Stat. 162–68. Given its

popularity, the FUTURE Act has become a model for

other greenhouse gas legislation because it accelerates

the deployment of technology designed to prevent,

reduce, or reverse greenhouse gas emissions while, at

the same time, facilitating economic growth and minimizing localized economic disruption and job losses.3

Congress first enacted a tax credit for carbon

capture, utilization, and storage projects—referred to

as 45Q for the relevant section of the Internal Revenue

Senator Shelley Moore Capito of West Virginia, the lead

Republican on the FUTURE Act, cited the benefits to her state’s

industries as the basis of her support for the legislation: “Not

only will this policy help drive economic growth domestically and

reduce future emissions abroad, but it will also help our country

fully embrace the kind of all-of-the-above energy strategy—

including West Virginia coal and natural gas—we need to reach

our full potential.” https://www.capito.senate.gov/news/pressreleases/capito-heitkamp-announce-bipartisan-carbon-capture-te

chnology-bill-signed-into-law.

Code—as a provision in the Energy Improvement and

Extension Act of 2008, Pub. L. No. 110-343, § 115, 122

Stat. 3829. Some facilities and even entire industries,

however, could not take advantage of the tax credits

because Congress originally had limited participation

to “qualified” facilities that captured no less than

500,000 metric tons of carbon dioxide during the taxable year. See 26 U.S.C. § 45Q(c)(3) (2008). To ensure

that a broader range of industries could participate in

the tax-credit program, the FUTURE Act redefined

the eligibility threshold for a “qualified” industrial

facility as one that captures “not less than 25,000

metric tons of qualified carbon.” See id. § 45Q(d)(2)(A)

(2020). Congress made these changes to incentivize

investment in more facilities and industrial sectors,

where innovation is greatly needed to enable broader

deployment.

Congress also increased the value of the tax credit.

Over a ten-year period, the FUTURE Act incrementally increases the value of the tax credit up to $35

per metric ton of carbon stored geologically through

enhanced oil recovery and up to $50 per ton for saline

and other forms of geologic storage. See 26 U.S.C.

§ 45Q(b)(1)(A)(i). And for every calendar year after

2026, the value of the tax credit will be adjusted for

inflation. See id. § 45Q(b)(1)(A)(ii). Congress made

these adjustments to increase incentives for industries—

particularly the power sector—to capture carbon

dioxide, the primary greenhouse gas emitted by

human activities.

2. Two years later, within the Consolidated

Appropriations Act of 2021, Congress created transformative new programs to reduce greenhouse gas

emissions under Division S, “Innovation for the

Environment.” Pub. L. No. 116-260, 134 Stat. 2243–72.

As a legislative “carrot,” Section 102 included the

Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, which supports carbon utilization

and direct-air capture research as well as ongoing

collaboration between federal, state, and nongovernmental agencies in the construction and development

of carbon capture, utilization, and sequestration facilities. 134 Stat. 2243–55.4

Using a “stick” approach, Section 103 included the

American Innovation and Manufacturing (AIM) Act,

which directs the EPA to address hydrofluorocarbons

by phasing down production and consumption, maximizing reclamation and minimizing releases from

equipment, and facilitating the transition to nextgeneration technologies through sector-based restrictions.

134 Stat. 2255–72. The AIM Act illustrates how

Congress explicitly provides an agency with significant regulatory authority to address one type of

greenhouse gas.

The Energy Act of 2020, under Division Z of the

Consolidated Appropriations Act of 2021, was the first

comprehensive update to our nation’s energy policy

in more than a decade. In several provisions of the

Energy Act, Congress addressed greenhouse gas emissions, including new programs to reduce emissions in

The USE IT Act—like the FUTURE Act—followed an

incentive-based approach. As the bill’s sponsor explained, members of the Senate Committee on Environment and Public Works

“worked together to reduce emissions and to do it through

innovation—not taxation, not regulation, but do it through

innovation—free market innovation, not punishing government

regulations.” 166 Cong. Rec. S7913 (daily ed. Dec. 21, 2020)

(statement of Sen. Barrasso).

the electric power sector and within the industrial

and manufacturing sectors.6

As Senator Lisa Murkowski, then-Chairman of the

Senate Energy and Natural Resources Committee

explained, the Energy Act of 2020 reflected a “strong

commitment to cleaner energy to help us address

climate change without raising the cost of energy or

imposing divisive mandates.”7

3. In November 2021, Congress passed the

Infrastructure Investment and Jobs Act, Pub. L. No.

117-58, 135 Stat. 429. As a central component of that

legislation, Congress addressed federal surface transportation programs in a division cited as the Surface

Transportation Reauthorization Act of 2021. This Act

added a new “Climate Change” subtitle (Division A,

Title I, Subtitle D). Id. §§ 11401–06, 135 Stat. 546–78.

Within this subtitle, Congress established a new

core highway formula program, referred to as the

Carbon Reduction Program. See id. § 11403, 135 Stat.

555–58 (codified at 23 U.S.C. § 175). Congress authorized $6.4 billion over five years to all States and the

See Title IV, “Carbon Management,” where Congress

established under Section 4002(b) a large-scale program “for the

development of transformational technologies that will significantly improve the efficiency, effectiveness, costs, emissions

reductions, and environmental performance of coal and natural

gas use, including in manufacturing and industrial facilities.”

134 Stat. 2529.

See Title VI, “Industrial and Manufacturing Technologies,”

where Congress created under Section 6003, the Industrial Emissions

Reduction Technology Development Program to reduce greenhouse

gas emissions from energy services and industrial processes. 134

Stat. 2553–56.

166 Cong. Rec. S7909 (daily ed. Dec. 21, 2020) (statement of

Sen. Murkowski).

District of Columbia to carry out eligible projects that

will support the reduction of transportation emissions.

The Infrastructure Investment and Jobs Act also

provided funds to the Department of Energy, including

funding for carbon-capture demonstration and pilot

projects, renewable energy projects, and demonstrations for new industrial emissions projects. See id.

§§ 41004, 41007, 41008, 135 Stat. 1128–30, 1370,

1377–78.

B. Outside of the Clean Air Act, Congress

passed a new law to reduce greenhouse

gas emissions.

As discussed above, Congress recently passed the

AIM Act as a component of the Consolidated Appropriations Act of 2021, which the President signed into

law. This law addresses our nation’s production and

consumption of hydrofluorocarbons—potent greenhouse

gases used primarily as coolants in air conditioning

systems and refrigerators. For the first time, Congress

explicitly told the EPA to reduce hydrofluorocarbon

use and consumption throughout our national economy.

And Congress chose to do so in a new statute outside

of the Clean Air Act. See 42 U.S.C. § 7675.

Congress specifically directed the EPA to issue

regulations that will reduce the production and consumption of hydrofluorocarbons in the United States

by 85 percent over the next fifteen years. See id.

§ 7675(e)(2)(A)–(C). To comply with this law, the

EPA must calculate the allowable quantity of hydrofluorocarbons that may be used each year and

then allocate “allowances” that authorize companies

to produce or to consume their allotted share. Id.

§ 7675(e)(2)(D).

Throughout the AIM Act, Congress balanced

competing interests—i.e., compliance costs versus

environmental benefits—and purposefully sought “to

speak clearly” as it delegated authority to the EPA to

decide issues “of vast economic and political significance.” Utility Air Regulatory Grp., 573 U.S. at 324.

For instance, Congress statutorily designated “essential uses” for hydrofluorocarbons, including a list of

mandatory allocations for certain uses, such as defense

sprays, metered-dose medical inhalers, and missioncritical military end uses, to guarantee supply. See 42

U.S.C. § 7675(e)(4)(B)(iv)(I).

The AIM Act also included statutory provisions

allowing the EPA to designate additional applications

for hydrofluorocarbons as an “essential use” in response

to a petition from a private party. Id. § 7675(e)(4)(B)(ii).

In considering whether to grant a petition, Congress

specifically told the EPA to consider, as a relevant

factor, the “overall economic costs” of compliance

as well as “technical achievability” and “commercial

demands” as the agency allocates allowances for

essential use. See id. § 7675(e)(4)(B)(i) (emphasis

added).

Additionally, Congress established statutory procedures for a party to petition the EPA to adopt

an “accelerated schedule for the phasedown of production or consumption” of hydrofluorocarbons. Id.

§ 7675(f)(3)(A). And Congress again told the EPA that

it “shall, to the extent practicable,” consider “affordability for residential and small business consumers,

safety, consumer costs, building codes, appliance efficiency standards, contractor training costs, and other

relevant factors” as the agency decides whether to

grant or to deny a petition. Id. § 7675(f)(3)(C)(ii)(II)

(emphasis added).

Unlike the ancillary provision of the Clean Air Act,

42 U.S.C. § 7411(d), that the EPA relied on to issue its

Clean Power Plan rule, Congress specifically addressed

“Technology Transitions” in a separate subsection of

the AIM Act. 42 U.S.C. § 7675(i). “In carrying out a

rulemaking” to transition to new technology, Congress

directed the EPA to evaluate carefully delineated

criteria, including the “overall economic costs and

environmental impacts, as compared to historical

trends.” Id. § 7675(i)(4)(C).

C. Within the Clean Air Act, Congress has

added only references to carbon dioxide

and greenhouse gas emissions.

Congress passed the modern version of the Clean

Air Act more than fifty years ago. In the time since,

Congress has never amended the Act to require the

EPA to set national carbon dioxide emission standards

for the electric power sector.

In fact, Congress has added only a few references to

carbon dioxide and greenhouse gas emissions to the

legislative text of the Clean Air Act. Those limited

references fall within provisions of the Act that are

irrelevant to this case.

1. The only regulatory section of the Clean Air

Act that includes a reference to carbon dioxide is

Section 211(o), which is in Title II of the Act governing

moving sources—e.g., motor vehicles. In 2005, Congress

passed legislation to amend the Act to establish a

renewable fuel program, and in 2007 Congress further

amended the Act to revise those provisions to add references to greenhouse gases. See Energy Independence

and Security Act of 2007, Pub. L. No. 110-140, § 201,

121 Stat. 1492, 1519–40.

In 2007, Congress amended Section 211(o) to define

“greenhouse gas” as “carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, sulfur

hexafluoride.” 121 Stat. 1520 (codified at 42 U.S.C.

§ 7545(o)(1)(G)). Congress made clear that this definition has no effect on any other provision of the Act.

Nothing in Section 211(o) “shall affect or be construed

to affect the regulatory status of carbon dioxide or any

other greenhouse gas, or to expand or limit regulatory

authority regarding carbon dioxide or any other greenhouse gas, for purposes of other provisions.” 121 Stat.

1532 (codified at 42 U.S.C. § 7545(o)(12)).

Since 2007, Congress has passed no other legislation

instructing the EPA to regulate carbon dioxide emissions in any other context.

2. Section 103, a nonregulatory section of the Clean

Air Act, also includes references to carbon dioxide.

See 42 U.S.C. § 7403(a) (requiring the EPA to establish

“a national research and development program”). In

1990, Congress added the first reference to carbon

dioxide in Section 103 as it relates to improvements in

nonregulatory strategies and technologies for preventing or reducing “carbon dioxide, from stationary

sources, including fossil fuel power plants.” Pub. L.

No. 101-549, § 901, 104 Stat. 2703.

In 2020, Congress added new nonregulatory references to carbon dioxide in Section 103 when it passed

the USE IT Act, within the Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, 134 Stat. 2243–

55. Context matters: those references apply to research

“carrots,” not regulatory “sticks.”

The USE IT Act added references to carbon dioxide

in Section 103 of the Clean Air Act merely to ensure

that the EPA’s research and development program

will continue to explore new technologies. As an

example, Congress specifically directed the EPA to

incentivize carbon capture, utilization, and storage

research. See 134 Stat. 2244–47. None of those

provisions have regulatory effects.

* * *

In sum, when Congress decides to address greenhouse gas emissions in an entire sector of our national

economy, it does so with explicit and specific legislative text. This Court should not permit agencies to

“discover” expansive regulatory authorities where

none exist.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals of the District of Columbia Circuit should

be reversed.

Respectfully submitted,

JEFFREY S. BEELAERT

Counsel of Record

STEIN MITCHELL BEATO &

MISSNER LLP

901 Fifteenth St., NW

Suite 700

Washington, D.C. 20005

(202) 737-7777

jbeelaert@steinmitchell.com

Counsel for Amici Curiae

December 20, 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.