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

—————————————

STATE OF WEST VIRGINIA, ET AL., Petitioners,

v.

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

Respondents.

—————————————

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

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

Respondents.

—————————————

WESTMORELAND MINING HOLDINGS LLC, Petitioner,

v.

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

Respondents.

—————————————

STATE OF NORTH DAKOTA, Petitioner,

v.

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

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE NEW ENGLAND

LEGAL FOUNDATION IN SUPPORT OF

PETITIONERS

Counsel for Amicus Curiae,

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

150 Lincoln Street, Unit 6B

Boston, Massachusetts 02111

Telephone: (617) 695-3660

JPagliaro@newenglandlegal.org

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

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

Interest of Amicus Curiae........................................... 1

Summary of the Argument ......................................... 2

Argument..................................................................... 2

I.

Congress Has Clearly Expressed its Intent

that “Any Measures” States Take to

Control Pollution Be Applied “At [the]

Source” of the Pollution .............................. 2

II.

Read in Context, “System” Means a

Technological System and Related

Processes, Practices, Equipment, etc. ........ 7

III. For Years Before the Clean Power Plan

Was Issued, EPA Acknowledged that

§7411(d) Deals Solely with At-theSource Technological Systems of

Emissions Reduction ................................ 12

IV. Nowhere in the Clean Air Act does

Congress Delegate the Greatly

Enlarged Powers Claimed by EPA in

the Clean Power Plan ............................... 17

Conclusion ................................................................. 22

i

Cases

TABLE OF AUTHORITIES

Alabama Association of Realtors v. Dept. of Health

and Human Servs., 141 S.Ct. 2485 (2021) ....21

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008) ........................................11

American Lung Ass’n v. E.P.A.,

985 F.3d 914 (D.C. Cir. 2021) ................passim

Arkansas Game and Fish Comm’n v. United States,

568 U.S. 23 (2012) ............................................8

ASARCO Inc. v. Environmental Protection Agency,

578 F.2d 319 (D.C. Cir. 1978) .................................16

Commissioner v. National Carbide Corp.,

167 F.2d 304 (2d Cir. 1948)..............................8

CSX Transp., Inc. v. Alabama Dept. of Revenue,

562 U.S. 277 (2011) ........................................11

Deal v. United States,

508 U.S. 129 (1993) ........................................11

FCC v. AT&T, Inc.,

562 U.S. 397 (2011) ..........................................7

Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000) ...............20

Kucana v. Holder,

558 U.S. 233 (2010) ........................................11

ii

Maracich v. Spears,

570 U.S. 48 (2013) ............................................8

Solid Waste Agency of N. Cook Cty. v. U. S.

Army Corps of Eng’rs, 531 US 159 (2001) .....21

Taniguchi v. Kan Pacific Saipan Ltd,

566 U.S. 560 (2012) ........................................11

Univ. of Texas Southwestern Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ..........................................7

Utility Air Regulatory Group v. E.P.A.,

573 U.S. 302 (2014) ..................................20, 21

Yates v. United States,

574 U.S. 528 (2015) ..........................................8

Statutes, Regulations, Etc.

42 U.S.C. §7401 ...........................................................3

42 U.S.C. §7401(a)(3) ..........................3, 4, 5, 7, 10, 11

42 U.S.C. §7407(a).......................................................3

42 U.S.C. §7410(a)(2)(A) ...........................................20

42 U.S.C. §7411 (1970), as amended,

Pub. L. 75-157, 88 Stat. 431 (1971) ...............16

42 U.S.C. §7411 .................................................passim

42 U.S.C. §7411(a)(1) ........................3, 8, 9, 11, 15, 16

42 U.S.C. §7411(a)(7) .............................................. 8-9

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

iii

42 U.S.C. §7411(d)(1) ....................................4, 5, 7, 10

42 U.S.C. §7412(d)(1) ..............................................4, 6

42 U.S.C. §7412(d)(2) ..................................................4

42 U.S.C. §7602 ...........................................................8

42 U.S.C. §7602(k) ..................................................8, 9

42 U.S.C. §7602(l) .....................................................10

42 U.S.C. §7602(m) .....................................................9

42 U.S.C. §7651(d).....................................................20

42 U.S.C. §7671f(a) ...................................................20

Pub. L. 91-604, 84 Stat. 1676 (1970) .......................13

40 C.F.R. §60.21(d)....................................................15

42 C.F.R. §60.22 (1975).........................................5, 15

42 C.F.R. §60.22(b)(3) (1975) ......................................5

42 C.F.R. §60.22(b)(5) (1975) ......................................5

42 C.F.R. §60.22 (Westlaw through 86 Fed.

Reg. 68444) .....................................................15

40 Fed. Reg. 53,339 (Nov. 17, 1975) ............... 5, 12-16

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

(Clean Power Plan).................................passim

iv

Other Sources

Dlouhy, Jennifer A., Biden Climate Czar Vows

Clean-Energy Edict If Congress Fails

(July 13, 2021) ................................................19

Press Release, Remarks by the President in the

State of the Union Address

(February 12, 2013) ........................................18

Press Release, Fact Sheet: President Obama to

Announce Historic Carbon Pollution

Standards for Power Plants

(Aug. 3, 2015)..................................................17

Press Release, Fact Sheet: President Biden Sets

2030 Greenhouse Gas Pollution Reduction

Target (April 22, 2021)...................................19

v

INTEREST OF AMICUS CURIAE1

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of corporations, foundations, law firms, and

individuals who believe in NELF’s mission of

promoting balanced economic growth in New

England and the nation, protecting the freeenterprise system, and defending individual

economic rights and the rights of private property.

NELF believes that these consolidated cases

present an issue of singular national importance.

The decision below sanctions an improper, greatly

enlarged exercise of the power by the Environmental

Protection Agency (EPA). The decision, drawing

deeply from a well of statutory silence while

slighting the plain language of the statutes, goes

beyond the Clean Power Plan of 2015, which itself

amounted to agency overreach writ large. NELF

urges this Court to correct the circuit court’s

reasoning, so that this important agency’s powers

may be placed on a sound legal footing that respects

statutory law and the principles of both federalism

and the delegation of powers.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and no person or entity other than NELF made any

monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.2(a), NELF has obtained

the consent of all parties. On December 9, 2021, the Power

Company Respondents gave consent via email sent by counsel

of record. All other parties have filed blanket consents to the

filing of amicus briefs in these consolidated cases, as shown on

the docket of the lead case, No. 20-1530.

SUMMARY OF THE ARGUMENT

I. The plain language of both 42 U.S.C. §7401,

setting out congressional findings, and §7411 clearly

shows that Congress intends emissions to be

regulated primarily by the States and to be reduced

by control measures applied to the individual

sources of the emissions.

II. EPA and the circuit court define “system” by

first de-contexualizing the term and then hunting

through a dictionary for the broadest definition.

Read in context, the word denotes technological

means, including related technical operations and

equipment, etc., located at the site of the individual

sources of emissions.

III. EPA has a long history of construing

§7411(d) as dealing solely with at-the-source

technological control of emissions. The Court should

not allow the agency to rewrite its own history.

IV. Congress has nowhere clearly delegated to

EPA the enormously consequential power the agency

claimed for itself in the Clean Power Plan. The

power therefore lacks sufficient legal authority.

Indeed, EPA made the claim only after Congress had

refused to grant it the power.

I.

ARGUMENT

Congress Has Clearly Expressed its Intent

that “Any Measures” States Take to Control

Pollution Be Applied “At [the] Source” of

the Pollution.

The circuit court was mistaken when it concluded

that “Congress consistently avoided imposing any

such technological, at-the-source limitation on the

measures that EPA might include in the ‘best

2

system’ for reducing emissions from existing-source

categories” under 42 U.S.C. §7411. American Lung

Ass’n v. E.P.A., 985 F.3d 914, 954 (D.C. Cir. 2021).

As we did in our brief in support of grant of

certiorari, we turn to the statutes in order to

discover the intent of Congress.

Section 7401 of 42 U.S.C. sets forth the

“Congressional findings and declaration of purpose”

for Subchapter I, Part A (Air Quality and Emissions

Limitations), under which §7411 is codified in

Chapter 85 of Title 42.

The expression of

congressional intent found in §7401 is therefore

central to a correct understanding of all of §7411 and

in particular to the phrase “best system of emission

reduction” found in §7411(a)(1).

Among other findings, in §7401 Congress made

specific findings about where and by whom it

believed that emissions should best be controlled as

a matter of general policy. As to where, it stated

that both air pollution prevention and air pollution

control should take place specifically “at its source”:

The Congress finds—

….

(3) that air pollution prevention (that is,

the reduction or elimination, through any

measures, of the amount of pollutants

produced or created at the source) and air

pollution control at its source is [sic] the

primary responsibility of States and local

governments;

§7401(a)(3). See also 42 U.S.C. §7407(a) (States have

primary responsibility).

Especially noteworthy is that, whatever

“measures,” i.e., whatever “system” and performance

3

standards, may be adopted under Subchapter I,

Congress expects that they will control pollution

locally, “at its source.” §7401(a)(3). By the circuit

court’s own concession, words like “at” and “to” are

“site-specific” when measures are spoken of as

applied to something or taken at some place.

American Lung, 985 F.3d at 950.

The definition given in §7411 to the key term

“source” corroborates that the emission control

described in §7401(a)(3) is targeted on the

individual, physical sources and not on what the

circuit court called the “exceptionally complex,

interconnected” electrical grid, id. at 932. Both new

and existing stationary “sources” of emissions are

defined as “any building, structure, facility, or

installation which emits or may emit any air

pollutant.” See §7411(a)(2), (3), and (6).

These conclusions are reinforced by §7411(d)(1).

That subsection deals with State standards that are

based on EPA’s “best system” guidelines. First, it

requires each State to submit to EPA a plan which

“establishes standards of performance for any

existing source” of air pollutants that are not

regulated elsewhere. §7411(d)(1) (emphasis added).

Second, it “permit[s] the State in applying a

standard of performance to any particular source . . .

to take into consideration, among other factors, the

remaining useful life of each existing source to which

such standard applies.”

Id. (emphasis added).

Note the entirely harmonious use of the prepositions

“for” and “to,” which the circuit court viewed as

being fundamentally antagonistic. Cf. §7412(d)(1)

(“emission standards for each category” of sources),

§7412(d)(2) (“sources to which such standard

applies”) (emphasis added).

4

As the language of §7411(d)(1) indicates,

Congress means what it says in §7401(a)(3) about

controlling pollution locally, “at its source.”

Subsection (d)(1), like (a)(3), is phrased in terms of

single, individual physical sources of emissions, for

which the best system of pollution control and the

resulting standards of performance are first

established and to which they are then applied.

Among the lexical improvisations underlying the

Clean Power Plan (CPP) is EPA’s redefinition of

“source” to include “owners or operators of the

sources.” 80 Fed. Reg. 64,662, 64,720, 64,762 (Oct.

23, 2015). Similarly, to make the CPP work,

measures that should be taken “at” the source or

should be applied “to” the source are redefined by

EPA as taken “by” the source, i.e., by the owners or

operators. Id. The result is to move emissions

control far outside the fence line of the individual

sources and to “the overall electricity grid.” Id. at

64,667.

Historically, however, we find that EPA itself

understood §7411 in exactly the way we have

interpreted it here. In 40 Fed. Reg. 53,339, 53,346

(Nov. 17, 1975), in text to be codified at 40 C.F.R.

60.22(b), EPA listed the kinds of guidance it would

provide

the

States

for

their

§7411(d)(1)

implementation plans. EPA declared that it would

issue an “emission guideline” based specifically on

the “best system of emission reduction . . . for

designated facilities,” and in another item in the

same list EPA referred to “applying each [such]

system to designated facilities.” Id. at 53346 (40

C.F.R. 60.22(b)(3), (5)) (emphasis added). Within the

span of a couple dozen words, the agency used both

“to” and “for” to describe the relationship between

the “best system of emission reduction” and the

5

individual sources of pollution, and used them

harmoniously.

The agency’s own pre-CPP usage throws into

stark relief how stilted and labored is the legal

distinction which the circuit court sought to draw

from these two prepositions when it was deciding

what “best system of emission reduction” means.

See American Lung, 985 F.3d at 950-51

(“application” of best system does not mean either

system or resulting standards of performance are to

be applied “to” sources, rather than being

established merely “for” them). However, use of the

two prepositions reflects nothing more than

idiomatic English. Just as EPA once understood, the

system of emission reduction that is chosen as best

for the given category of sources, as well as the

performance standards thereafter set for those

sources, are then applied to the sources. Cf. 42

U.S.C. §7412(d)(1) (EPA promulgates “emission

standards for each category of . . . sources” of

hazardous emissions, but may not delay compliance

date of “any standard applicable to any source”)

(emphasis added). The circuit court’s rigid either/or

approach is not consistent with either the text of the

statutes or common sense.

Thus, an understanding of the meaning of “best

system of emissions reduction” as site-specific is

solidly grounded in governing statutes. In ruling

otherwise the decision below failed to give effect to

Congress’s clear intent.

6

II. Read in Context, “System” Means a

Technological

System

and

Related

Processes, Practices, Equipment, etc.

The circuit court’s decision concerning the powers

claimed by EPA in the Clean Power Plan cannot be

reconciled with what §7401(a)(3) says about

“measures” to be taken against pollution emissions,

nor with §7411(d)(1).

Yet the circuit court

essentially confirmed those powers by making

selective use of a dictionary to construe the word

“system” expansively in the phrase “best system of

emission reduction.” See American Lung, 985 F.3d

at 946-47. As a result, using the same word

“measures” found in §7401(a)(3), the circuit court

declared that EPA possesses a “degree of leeway in

choice of control measures” to include in the “best

system” to reduce pollution emissions. Id. at 942. In

the circuit court’s view the “leeway” extends to

“control measures” that do not “control [pollution] at

its source,” §7401(a)(3), but control it at the level of

the “extremely complex and interconnected”

electrical grid, American Lung, 985 F.3d at 932, 94445. See also 80 Fed. Reg. at 64,728 (“measures

available . . . thanks to the integrated . . . electricity

system”), 64,733 (“source-category-wide multi-unit

compliance”).

That error arose from the circuit court’s failure to

examine the statutory context of §7411 as a whole.

On countless occasions this Court has instructed

lower courts that the meaning of statutory terms is

to be determined contextually. “Text may not be

divorced from context,” University of Texas

Southwestern Medical Center v. Nassar, 570 U.S.

338, 356 (2013), because “construction of statutory

language often turns on context,” FCC v. AT&T, Inc.,

562 U.S. 397, 404 (2011). Hence, “[i]t is necessary

7

and required that an interpretation of a phrase of

uncertain reach is not confined to a single sentence

when the text of the whole statute gives instruction

as to its meaning.” Maracich v. Spears, 570 U.S. 48,

65 (2013). As Judge Learned Hand expressed it,

“words are chameleons, which reflect the color of

their environment.” Yates v. United States, 574 U.S.

528, 539 (2015) (quoting Commissioner v. National

Carbide Corp., 167 F.2d 304, 306 (2d Cir. 1948)). As

this Court put it more succinctly if less colorfully,

the first rule of statutory interpretation is “Read on.”

Arkansas Game and Fish Comm’n v. United States,

568 U.S. 23, 36 (2012).

Reading on in §7411, we find that “the text of the

whole statute gives instruction as to [§7411(a)(1)’s]

meaning,” Maracich, 570 U.S. at 65, and thus also to

that of §7411(d).

We turn first to definitional subsection (a), which

defines “standard of performance” as a standard of

“emissions limitation achievable through application

of the best system of emission reduction which . . .

the Administrator determines has been adequately

demonstrated.” §7411(a)(1). We note that emissions

limitation is understood to mean limits achieved “on

a continuous basis,” including “continuous emission

reduction.” 42 U.S.C. §7602(k).2

It is significant, therefore, that the sole other

mention of “system” in the key definitional portion of

§7411 also refers to exactly that kind of system, i.e.,

a system of continuous emission reduction. We do

not believe that to be a coincidence. Subsection

2 §7602 gives definitions for terms used in Chapter 85 of Title

42, within which §7411 is codified.

8

7411(a)(7)

defines

“technological

system

of

continuous emission reduction” as either a

“technological process for production or operation . . .

which is inherently low-polluting or nonpolluting” or

a “technological system for continuous reduction” of

emissions after generation but before release into

the ambient air.

No other kind of system of

continuous emission reduction is mentioned, let

alone defined, anywhere in §7411.

Additional, corroborating context is given

elsewhere.

As we just noted, in §7411(a)(1) a

“standard of performance” means a “standard for

emissions” that provides the level of “emission

limitation” achievable from the “best system of

emission reduction.” Both “emission limitation” and

“emission standard” are in turn defined to mean a

“requirement” which limits the emission of air

pollutants on a continuous basis.

§7602(k).

Significantly, in order “to assure continuous

emission reduction” like that, such a requirement is

stated to include requirements concerning “the

operation or maintenance of a source,” as well as

those for “any design, equipment, work practice or

operational standard promulgated under this

chapter” for a source. Id. Such “means of emission

limitation” are defined as “a system of continuous

emission reduction,” and they are further stated to

include “the use of specific technology or fuels with

specified pollution characteristics.” §7602(m).

What is notable about these dense, interlocking

and overlapping definitions is that together they

focus the meaning of “system of continuous emission

reduction” on the individual sources of emissions,

specifically on their actual physical, technical

embodiment, to include their technology, equipment,

design, operations, maintenance, work practices, etc.

9

This is entirely consistent with §7401(a)(3) and

§7411(d)(1).3 See supra pp. 3-5. (As we discuss

below, EPA long shared the view that §7411, and

specifically §7411(d), are technology-based. See infra

pp. 12-17.)

In light of all of this, it would be exceedingly odd

to believe that in §7411 Congress silently threw the

doors of regulation wide open and intended the best

“system” of continuous emission reduction to include

the statutorily unregulated use of any “‘complex

unity formed of many often diverse parts subject to a

common plan or serving a common purpose,” which

is what the circuit court concluded that “system”

means here. See American Lung, 985 F.3d at 946-47

(quoting Webster’s Third New International

Dictionary of the English Language Unabridged

2322 (2d ed. 1968)).

We suggest that the circuit court went astray

from its first step because it set out to find the

meaning of “system” in isolation from statutory

context, resorting instead to combing through a

dictionary for a suitably “flexib[le]” definition. See

id. In the 2015 CPP, EPA did the same thing but

with a different dictionary. 80 Fed. Reg. at 64,720 &

n.314 (“this definition is sufficiently broad,”

consulting Oxford English Dictionary).

This Court has cautioned against such uncritical

use of a dictionary. When confronted with several

dictionary meanings, it is a “fundamental principle

The definition of “standard of performance” given in

§7602(l) is less full than, but is consistent with, the definition

found in §7411(a)(1), and it too refers to “any requirement

relating to the operation or maintenance of a source to assure

continuous emission reduction.”

3

10

of statutory construction (and, indeed, of language

itself) that the meaning of a word cannot be

determined in isolation, but must be drawn from the

context in which it is used.” Deal v. United States,

508 U.S. 129, 132 (1993). Echoing Learned Hand,

the Court has written that “[t]he word ‘under’ is

chameleon; it has many dictionary definitions and

must draw its meaning from its context.” Kucana v.

Holder, 558 U.S. 233, 245 (2010) (quotation marks

and citation omitted). See also Taniguchi v. Kan

Pacific Saipan Ltd., 566 U.S. 560, 569-70 (2012)

(rejecting broader dictionary definition in light of

statutory context); Ali v. Federal Bureau of Prisons,

552 U.S. 214, 244 (2008) (Breyer, J., dissenting) (“it

is context, not a dictionary, that sets the boundaries

of time, place, and circumstance within which words

such as ‘any’ will apply”); CSX Transp., Inc. v.

Alabama Dept. of Revenue, 562 U.S. 277, 305 (2011)

(Thomas, J., dissenting) (“It is more reasonable to

discern the meaning of ‘discriminates’ . . . [by] using

the preceding subsections than to pluck from the

dictionary a definition for such a context-dependent

term.”).

As we have stated, contrary to the circuit court’s

focus on the isolated word “system,” the relevant

contextual term is actually “system of continuous

emission reduction,” as an attentive reading of all

the terms used in §7411(a)(1) makes clear. See

supra pp. 8-9. We have proposed a context-based

reading that respects Congress’s findings and

conclusions set out in §7401(a)(3). The “flexib[le],”

“sufficiently broad” definitions the lower court and

EPA culled from dictionaries do not; they are limited

only by EPA’s imagination for non-technological, offsite “complex unit[ies] formed of many often diverse

11

parts subject to a common plan or serving a common

purpose.”

III. For Years Before the Clean Power Plan

Was Issued, EPA Acknowledged that

§7411(d) Deals Solely with At-the-Source

Technological

Systems

of

Emissions

Reduction.

In bolstering its ruling the circuit court majority

observed that “the regulators closest to the issue

never before saw what the EPA now [i.e., in 2019,

when defending its repeal of the CPP] insists is

obvious on the face of Section 7411.” American

Lung, 985 F.3d at 954. In other words, according to

the lower court, previous EPA regulators supposedly

never even entertained, much less actually held, the

“myopic[]” view of circumscribed regulatory powers

asserted by EPA in its repeal of the CPP, i.e., that

the “best system” must be technological and applied

to the emission sources in situ. See id. at 953. The

circuit court could only have been encouraged in its

mistaken belief by EPA’s own highly disingenuous

statement that the CPP’s expansive view of §7411

“fall[s]

squarely

within

EPA’s

historical

interpretation” of the statute. 80 Fed. Reg. at

64,761.

The facts say otherwise. At least as long ago as

1975 the EPA put on record its understanding that

§7411(d) deals with at-the-source technological

measures. In 40 Fed. Reg. 53,339 (November 17,

1975), which deals with “State Plans for the Control

of Certain Pollutants From Existing Facilities,” EPA

discussed the grounds on which it might approve or

disapprove a state plan under §7411(d). 40 Fed. Reg.

at 53,342. In the course of its explanation, it laid out

at length its understanding of the approach

12

Congress wanted to be taken in implementing

§7411(d).

First EPA reviewed the legislative history of

§7411(d), which began as section 114 of a Senate bill

intended to address pollutants which are neither

criteria pollutants nor hazardous pollutants, i.e.,

they belonged to the same category of pollutants as

§7411 already then dealt with. Id. at 53,342. So a

conference committee rewrote section 114 in order to

incorporate it into §7411, a statute “which,” EPA

observed, “in effect requires maximum feasible

control of pollutants from new stationary sources

through technology-based standards.” Id. (emphasis

added). In this way, section 114 of the Senate bill,

dealing with existing stationary sources, became

§7411(d). Id. See Pub. L. 91-604, §4(a), 84 Stat.

1676, 1684 (1970).

From these facts EPA drew four conclusions, the

fourth of which is pertinent here.

(4) Under the circumstances, EPA believes,

the conferees decided (a) that control of

such pollutants on some basis was

necessary; (b) that, given the relative lack

of information on their health and welfare

effects, a technology-based approach

(similar to that for new sources) would be

more feasible than one involving an

attempt to set standards tied specifically to

protection of health; and (c) that the

technology-based

approach

(making

allowances for the costs of controlling

existing sources) was a reasonable means

of attacking the problem until more

definitive information became known,

particularly because the States would be

13

free under section 116 of the Act to adopt

more stringent standardse [sic] if they

believed additional control was desirable.

In short, EPA believes the conferees chose

to rewrite section 114 [of the Senate bill] as

part of section 111 [of the Clean Air Act

(CAA), i.e., §7411] largely because they

intended the technology-based approach of

that section to extend (making allowances

for the costs of controlling existing sources)

to action under section 111(d) [§7411(d)]. In

this view, it was unnecessary (although it

might have been desirable) to specify

explicit substantive criteria in section

111(d) [§7411(d)] because the intent to

require a technology-based approach could

be inferred from placement of the provision

[of the Senate bill] in section 111 [i.e.,

§7411].

Id. (emphasis added).

EPA was correct; as we have shown earlier, the

text and context of §7411(d) amply justify taking a

solely “technology-based approach” to emission

reduction at the site of the existing emission sources.

See supra pp. 2-12.

EPA concluded with the following observations:

Requiring a technology based approach . . .

would not only shift the criteria for

decision-making to more solid ground (the

availability and costs of control technology)

but would also take advantage of the

information and expertise available to EPA

from its assessment of techniques for the

control of the same pollutants from the

same types of sources under [§7411(b)], as

14

well as its power to compel submission of

information about such techniques under

section 114 of the Act (42 U.S.C. 1857c-9).

40 Fed. Reg. at 53,343.

Not surprisingly, therefore, in the 1975 amended

regulations promulgated in 40 Fed. Reg. at 53,346-9,

EPA expressly described best systems of emission

reduction as being systems applied to the existing

sources of emissions, as we have seen. Supra pp.

5-6. More specifically, in language strongly echoing

§7411(a)(1)’s description of “the best system,” EPA

stated that it would issue to the states “[g]uideline

documents” that would provide:

(2) A description of systems of emission

reduction which, in the judgment of the

Administrator, have been adequately

demonstrated.

(3) Information on the degree of emission

reduction which is achievable with each

system, together with information on the

costs and environmental effects of applying

each system to designated [i.e., existing]

facilities.

40 Fed. Reg. at 53,346 (42 C.F.R. §60.22) (emphasis

added). See also id. (40 C.F.R. §60.21(d)) (defining

“Designated facility”).

The wording of 40 C.F.R. §60.22 quoted above has

remained in effect to the present, despite the

interpretative revolution attempted in the statutory

law by EPA in the Clean Power Plan in 2015. See 42

C.F.R. §60.22 (Westlaw through 86 Fed. Reg. 68444).

As such, it remains an abiding marker of EPA’s

longtime view that §7411(d) takes a “technologybased approach” to emission reduction systems, one

15

that is to be “appl[ied]. . . to” existing emissions

sources, 40 Fed. Reg. at 53,346, i.e., applied locally,

in situ, and not grid-wide or industry-wide.

We call attention to the significant fact that EPA

took that view at a time when, just as now,

§7411(a)(1) did not spell out “best technological

system.” See 42 U.S.C. §7411 (1970), as amended by

Pub. L. 75-157, 88 Stat. 431, 464 (1971). See also

ASARCO, Inc. v. EPA, 578 F.2d 319, 322 n.6 (D.C.

Cir. 1978) (reading §7411(a)(1) to mean best

technological system “still,” whether “technological”

is spelled out or not).

Thus the EPA’s own detailed analysis, as far back

as 1975, provides an “at the source,” technologybased reading of §7411(d) which is inconsistent with

the CPP and with the circuit court’s expansive view

of EPA’s powers.

Contrast the foregoing EPA analysis with what

the agency said in 2015, forty years later, when it

was defending the newly discovered — or, rather,

newly contrived — expansive powers it claimed for

itself in the CPP.

[O]ur interpretation accommodates the very

design of CAA section 111(d)(1), which

covers a range of source categories and air

pollutants; our interpretation is supported

by the legislative history of CAA section

111(d)(1) and (a)(1), which indicates

Congress’s intent to give the EPA broad

discretion in determining the basis for CAA

section

111

control

requirements,

particularly for existing sources, and

Congress’s intent to authorize the EPA to

consider measures that could be carried out

by parties other than the affected sources[.]

16

80 Fed. Reg. at 64,761 (emphasis added).

In fact, as we have seen, the text of the statute,

its “design,” and its legislative history do not justify

EPA’s recent attempt to control emissions from

“outside the fence line” of the actual, individual

sources, and for decades EPA thought so too and said

so.

IV. Nowhere in the Clean Air Act does

Congress Delegate the Greatly Enlarged

Powers Claimed by EPA in the Clean

Power Plan.

As this brief seeks to persuade the Court, there

exist compelling reasons to conclude that Congress

did not give EPA the extensive powers that the

agency claimed in the CPP and that the circuit court

majority in effect ratified. The origin of those

supposed powers lies elsewhere.

In 2015 the White House announced the

imminent release of the Clean Power Plan, which it

hailed as an “historic step in the Obama

Administration’s fight against climate change.”

Press Release, Fact Sheet: President Obama to

Announce Historic Carbon Pollution Standards for

Power Plans (August 3, 2015).4 The announcement

declared that, compared to earlier ways of setting

“state targets” for pollution reduction, the CPP

“better reflects the way the electricity grid operates.”

Id.

Available at https://obamawhitehouse.archives.gov/thepress-office/2015/08/03/fact-sheet-president-obama-announcehistoric-carbon-pollution-standards%20 (last accessed May 31,

2021).

4

17

The CPP, promulgated on Oct. 23, 2015, was the

backup “Plan B” to a challenge President Obama had

made to Congress two years earlier.

[I]f Congress won’t act soon to protect

future generations [from climate change], I

will. . . . I will direct my Cabinet to come up

with executive actions we can take, now

and in the future, to reduce pollution,

prepare

our

communities

for

the

consequences of climate change, and speed

the transition to more sustainable sources

of energy.

Press Release, Remarks by the President in the

State of the Union Address (February 12, 2013).5

When Congress failed to act soon enough and

President Obama’s legislative “Plan A” fell through,

the Administration resorted to “Plan B.” It made the

discovery that Congress had long ago delegated to

EPA the power the Executive Branch wanted, so

that EPA could proceed to rule-making without any

legislative ado. See American Lung, 985 F.3d at 996998 (Walker, J., concurring in part, concurring in the

judgment, and dissenting in part) (legislative process

worked as constitutionally designed to work when

president’s proposed legislation did not pass; “So

President Obama ordered the EPA to do what

Congress wouldn’t.”). The resulting Clean Power

Plan echoed President Obama’s view that limits on

emissions should be set in a manner that “better

reflects the way the electricity grid operates.” See,

e.g., 80 Fed. Reg. at 64,665, 64,667, 64,728. The

Available at https://obamawhitehouse.archives.gov/thepress-office/2013/02/12/remarks-president-state-union-address

(last accessed May 19, 2021).

5

18

difference is that while the power to set emission

limits that way required new legislation in 2013, in

2015 it miraculously did not.6

Of such opportunistic discoveries of agency power

this Court has written:

We are not willing to stand on the dock and

wave goodbye as EPA embarks on this

multiyear voyage of discovery. We reaffirm

the core administrative-law principle that

an agency may not rewrite clear statutory

terms to suit its own sense of how the

statute should operate.

6 Cf. Jennifer A. Dlouhy, Biden Climate Czar Vows Clean-

Energy Edict If Congress Fails (July 13, 2021) (available at

https://www.bloomberg.com/news/articles/2021-07-13/biden-cli

mate-czar-vows-clean-energy-rules-with-congress-or-not) (last

accessed Nov. 4, 2021).

The article quotes President Biden’s National Climate

Advisor Gina McCarthy as saying, “We have lots of regulatory

authority that we intend to use regardless[.]” McCarthy was

head of EPA when the CPP was promulgated in 2015. So when

she now says, “We have lots of regulatory authority that we

intend to use regardless,” she should be believed.

One ominous sign is that a White House press release on

President Biden’s goal of achieving 100% carbon-free electricity

generation mentions neither Congress nor the need for

legislation. See Press Release, Fact Sheet: President Biden

Sets 2030 Greenhouse Pollution Target (April 22, 2021)

(available at https://www.whitehouse.gov/briefing-room/state

ments-releases/2021/04/22/fact-sheet-president-biden-sets-2030

-greenhouse-gas-pollution-reduction-target-aimed-at-creatinggood-paying-union-jobs-and-securing-u-s-leadership-on-cleanenergy-technologies/) (last accessed May 31, 2021).

As an American folk philosopher once said, “It’s déjà vu all

over again.”

19

Utility Air Regulatory Group v. E.P.A., 573 U.S. 302,

328 (2014) (UARG).

It is for that reason that this case is not about

“the way the electricity grid operates,” as the 2015

White House Fact Sheet put it. It is about the way

the United States Government operates. As this

Court once observed, “Regardless of how serious the

problem an administrative agency seeks to address,

. . . it may not exercise its authority in a manner

that is inconsistent with the administrative

structure that Congress enacted into law.” Food and

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

529 U.S. 120, 125–26 (2000) (quotation marks and

citation omitted).

As shown in this brief, the statute in question (42

U.S.C. §7411) cannot serve EPA as a navigational

chart to any point in the compass to which EPA now

wishes to journey. The statute lacks entirely the

clear language needed to delegate to the agency the

expansive economic and policy-making powers at

issue in these cases. When it intends to do so in the

Clean Air Act, Congress knows how to authorize the

use of non-technological means, including economic

ones, and it does so in clear terms. See, e.g., 42

U.S.C. §7410(a)(2)(A), 42 U.S.C. §7651(d), and 42

U.S.C. §7671f(a). It has not done so here.

As this Court wrote on a similar occasion:

EPA’s interpretation is also unreasonable

because it would bring about an enormous

and transformative expansion in EPA’s

regulatory

authority

without

clear

congressional authorization.

When an

agency claims to discover in a long-extant

statute an unheralded power to regulate a

significant portion of the American

20

economy,

we

typically

greet

its

announcement with a measure of

skepticism. We expect Congress to speak

clearly if it wishes to assign to an agency

decisions of vast economic and political

significance.

UARG, 573 U.S. at 324 (cleaned up). See also Solid

Waste Agency of Northern Cook County v. United

States Army Corps of Engineers, 531 U.S. 159, 17273 (2001).

When a clear delegation of power is required,

ambiguity must fall short.

Hence, when EPA

invokes Chevron deference, see 80 Fed. Reg. at

64,719 & n.301 and 64,768, it does so in vain. “Even

if the text were ambiguous, the sheer scope of the

[agency’s] claimed authority . . . would counsel

against the Government’s interpretation.” Alabama

Association of Realtors v. Department of Health and

Human Services, 141 S.Ct. 2485, 2489 (2021). Least

of all, therefore, could the powers claimed in the CPP

simply “evolve,” American Lung, 985 F.3d at 953,

into existence lawfully.

Hence, the decision of the circuit court majority

must rely largely on reading the delegation of these

powers into the statute’s supposed silence, while

ignoring key words and context that delimit and

particularize the meaning of the law as Congress

actually wrote it. The circuit court’s two-judge

majority appears comfortable with its understanding

of the meaning of supposed legislative silence. This

Court should not be.

21

CONCLUSION

For the reasons given above, this Court should

reverse the decision below.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION,

By its attorneys,

/s/

John Pagliaro

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

150 Lincoln Street, Unit 6B

Boston, Massachusetts 02111

Telephone: (617) 695-3660

JPagliaro@newenglandlegal.org

Dated: December 20, 2021

22