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

WEST VIRGINIA, ET AL.

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE NORTH AMERICAN COAL CORPORATION

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

WESTMORELAND MINING HOLDINGS LLC

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

NORTH DAKOTA

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

On Writs of Certiorari to The United States Court of

Appeals for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE THE BUCKEYE

INSTITUTE IN SUPPORT OF PETITIONERS

JAY R. CARSON

Counsel of Record

Robert Alt

THE BUCKEYE INSTITUTE

88 East Broad St., Suite 1300

Columbus, OH 43215

(614) 224-4422

j.carson@buckeyeinstitute.org

robert@buckeyeinstitute.org

i

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ................................................................ 4

A. The Major Questions Doctrine As Protection

Against Agency Overreach ................................ 4

B. The State of Ohio and Energy Production ........ 7

C. Increased Energy Costs for Ohio Consumers

and Manufacturers .......................................... 11

CONCLUSION .......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

American Lung Assoc. v. EPA,

985 F. 3d 914 (2021) ................................................. 5

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................. 2

Fed. Trade Commission v. Ruberoid Co.,

343 U.S. 470 (1952) .................................................. 4

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

573 U.S. 302 (2014) .............................................. 3, 5

West Virginia v. Environmental Protection

Agency, 136 S. Ct. 1000 (2016) ................................ 3

Whitman v. American Trucking Assoc.,

531 U.S. 457 (2001). ................................................. 3

Constitution and Statutes

U.S. CONST. art. I, §1, cl. 1 .......................................... 5

I.R.C. section 501(c)(3) ................................................ 1

iii

Other Authorities

Kevin D. Dayaratna, Nicolas D. Loris, and David

W. Kreutzer, HERITAGE FOUNDATION, The

Obama Administration’s Climate Agenda:

Underestimated

Costs

and

Exaggerated

Benefits, Backgrounder No. 2975, (November 13,

2014), http://report.heritage.org/bg2975 ................. 9

Lisa Friedman and Coral Davenport, Biden Will

Pledge to Cut Greenhouse Gas Emissions

Nearly in Half, N.Y. TIMES (April 20, 2021,

updated Oct. 27, 2021) https://www.nytim

es.com/2021/04/20/climate/biden-climatechange.html .............................................................. 6

Impacts of the Oil and Natural Gas Industry on

the

U.S.

Economy

in

2019,

PricewaterhouseCoopers LLP, (July 2021)

https://www.api.org/-/media/Files/Policy/

American-Energy/PwC/API-PWC-EconomicImpact-Report.pdf. ................................................... 8

Alec MacGillis, Forced to Choose Between a Job—

and a Community, PROPUBLICA (May 23, 2018),

https://www.propublica.org/article/adamscounty-ohio-coal-forced-to-choose-between-ajob-and-a-community ............................................. 10

John Muyskens and Juliet Elperin, Biden Calls for

100 Percent Clean Electricity by 2035. Here’s

How Far We Have to Go, WASH. POST (July 30,

2020) ......................................................................... 6

iv

National Association of Manufacturers, 2019 Ohio

Manufacturing Facts, https://www.nam.org/

state-manufacturing-data/2019-ohio-manu

facturing-facts (accessed Dec. 16, 2021) .................. 9

NERA Economic Consulting, Potential Energy

Impacts of the EPA Proposed Clean power Plan,

(October 16, 2014) https://www.nera.com/

publications/archive/2014/potential-impacts-ofthe-epa-clean-power-plan.html .............................. 11

Barack Obama, Remarks by the President in

Announcing the Clean Power Plan, (Aug. 3,

2015)

https://obamawhitehouse.archives.gov/

the-press-office/2015/08/03/remarks-presidentannouncing-clean-power-plan (accessed Dec.

16, 2021) ................................................................... 6

Ohio History Central, Ohio’s State Tourism

Slogans, https://ohiohistorycentral.org/w/Ohio%

27s_State_Tourism_Slogans (accessed Dec. 15,

2021) ......................................................................... 7

U.S. Energy Information Administration, Ohio,

State Energy Estimates, https://www.eia.gov/

state/?sid=OH (accessed Dec. 16, 2021)................... 7

U.S. Energy Information Administration, State

Profiles

and

Energy

Estimates,

Ohio,

https://www.eia.gov/state/analysis.php?sid=OH

(accessed Dec. 15, 2021) ........................................... 8

v

U.S. Environmental Protection Agency, Causes

of Climate Change, https://www.epa.gov/

climatechange-science/causes-climate-change

(accessed Dec. 16, 2021) ........................................... 2

Wayne Winegarden, PhD, PACIFIC RESEARCH

INSTITUTE, The Regressive Impact on Ohio’s

Lower-Income and African-American Families

from EPA’s Proposed Regulations on Carbon

Dioxide

Emissions,

(December

2014)

https://www.pacificresearch.org/wp-content/

uploads/2017/03/EPA_Ohio_rFweb.pdf ........... 11, 12

1

INTEREST OF AMICUS CURIAE

Amicus curiae The Buckeye Institute was founded

in 1989 as an independent research and educational

institution—a think tank—whose mission is to

advance free-market public policy in the states. 1 The

staff at The Buckeye Institute accomplishes the

organization’s mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policy

solutions, and marketing those policy solutions for

implementation in Ohio and replication throughout

the country. The Buckeye Institute is a nonpartisan,

non-profit, tax-exempt organization as defined by

I.R.C. section 501(c)(3). The Buckeye Institute’s Legal

Center files and joins amicus briefs that are consistent

with its mission and goals.

Consistent with its mission, The Buckeye

Institute seeks to protect individual liberties,

especially those liberties guaranteed by the

Constitution of the United States, against government

overreach. More and more often, that government

overreach comes in the form of agency rules and

regulations imposed by unelected bureaucrats. The

result is the insulation of important public policy

decisions from any political or judicial accountability.

This is incompatible with the representative

democracy guaranteed by the Constitution. More

specifically, the expansive regulatory authority that

1 Pursuant to Rules 37.2(a) and 37.3(a), The Buckeye Institute

states that it has obtained written consent to file this amicus

brief from all parties in the case. Further, pursuant to Rule 37.6,

no counsel for any party has authored this brief in whole or in

part and no person other than the amicus has made any

monetary contribution to this brief’s preparation or submission.

2

the Court of Appeals’ decision would permit the

Environmental Protection Agency (EPA) to exercise

would fundamentally alter Ohio’s economy without

allowing Ohio voters any voice in the process, which is

of substantial concern to The Buckeye Institute.

SUMMARY OF THE ARGUMENT

The energy required to keep the global economy

moving forward—the energy that powers innovations

in manufacturing, travel, science, medicine, and that

maintains the standard of living that much of the

world takes for granted—relies significantly on

burning fossil fuels. Burning fossil fuels necessarily

emits carbon dioxide into the atmosphere. The EPA

has determined that these emissions contribute to

climate change. U.S. Environmental Protection

Agency,

Causes

of

Climate

Change,

https://www.epa.gov/climatechange-science/causes-cl

imate-change (accessed Dec. 16, 2021). But the

economic impact of transitioning from fossil fuels to

renewable power sources that produce less carbon

emissions would be staggering and would result in

both increased energy prices and job losses.

Policy makers have long debated these seemingly

competing interests. The Court of Appeals’ decision

unfortunately adds to this muddle the question of who

gets to make these decisions.

The major questions doctrine preserves political

accountability in the administrative state by

providing a commonsense check on administrative

overreach. See FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 160 (2000) (expressing confidence

that “Congress could not have intended to delegate a

3

decision of such economic and political significance to

an agency in so cryptic a fashion.”). Simply put, when

Congress aims to assign to an agency decisions of “vast

economic and political significance” it speaks clearly

in making that assignment. Util. Air Regulatory

Group v. E.P.A., 573 U.S. 302, 324, citing Food & Drug

Admin. v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 160 (2014). Or, as Justice Scalia memorably

put it, when fundamentally altering or expanding an

agency’s regulatory authority, Congress does not

“hide elephants in mouseholes.” Whitman v. American

Trucking Assoc., 531 U.S. 457, 468 (per curiam).

This case turns in large part on whether the major

questions doctrine applies to the EPA’s purported

power to rescind in its entirety the American Clean

Energy (ACE) rule, which had—following this Court’s

decision in West Virginia v. Environmental Protection

Agency, 136 S. Ct. 1000 (2016) and a change in

presidential administrations—repealed the Clean

Power Plan (CPP). While regulatory policy may

change from one administration to the next, the

architecture of the Constitution—with its three coequal branches and separation of powers—remains

constant.

The Court of Appeals’ decision upends that

balance by holding that the general grant of power to

regulate stationary sources of air pollution under

Section 111 of the Clean Air Act gives the EPA near

absolute authority to rearrange the nation’s power

generation infrastructure, regulating any industry,

anywhere, if such regulation might reduce carbon

dioxide emissions at power plants. In other words, the

mousehole of Section 111 houses not a Borneo

4

elephant, but a prehistoric wooly mammoth. In

reaching its conclusion, the Court of Appeals

sidestepped the major questions doctrine and

overlooked the “vast economic and political

significance” of the EPA’s rule to states like Ohio.

This brief provides an analysis of the significant

economic impact that such sweeping regulatory

decisions will have on the State of Ohio and similarly

situated industrial midwestern states that produce

and rely on fossil fuels to power their economies. As

Ohio’s example demonstrates, the EPA’s proposed rule

squarely falls within the major questions doctrine,

because the EPA’s policy decision implicates “vast

economic” and “politically significant” consequences.

Because Congress did not speak clearly in assigning

authority over these decisions to the EPA, the decision

of the Court of Appeals should be reversed.

ARGUMENT

A. The Major Questions Doctrine As Protection

Against Agency Overreach.

The Constitution makes no mention of

administrative agencies. Yet, as Justice Jackson

lamented over half a century ago, “[t]hey have become

a veritable fourth branch of the Government, which

has deranged our three-branch legal theories much as

the concept of a fourth dimension unsettles our threedimensional thinking.” Fed. Trade Commission v.

Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J.

dissenting). Simply put, the executive agency is

always—to some extent—at odds with the

Constitution’s directive that “All legislative Powers

5

herein granted shall be vested in a Congress of the

United States. . . . U.S. CONST. art. I, §1, cl. 1.

In protecting this distinction between legislative

power and executive authority to execute the laws,

this Court has articulated the “major questions

doctrine,” which holds that when Congress aims to

assign to an agency decisions of “vast economic and

political significance” it speaks clearly in making that

assignment. U.A.R.G., 573 U.S. at 324, citing Food &

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

529 U.S. 120, 160 (2014). In the Court of Appeals’

dissent, Judge Walker argued that the sweeping

authority the majority granted to the EPA implicated

decisions of “vast economic and political significance.”

Judge Walker noted that in describing the scope and

magnitude of the EPA’s Clean Power Plan, and by

extension the of rescinding its repeal in the American

Clean Energy (ACE) rule, no metaphor was too small

for its proponents. See American Lung Assoc. v. EPA,

985 F. 3d 914, 999 (2021) (“Minor questions do not

forestall consequences comparable to ‘the extinction

event that wiped out the dinosaurs 65 million years

ago.’ Minor questions are not analogous to

‘Thermopylae, Agincourt, Trafalgar, Lexington and

Concord, Dunkirk, Pearl Harbor, the Battle of the

Bulge, Midway and Sept. 11’ . . . . Minor rules are not

the ‘single most important step America has ever

taken in the fight against global climate change.’”)

(internal citations omitted).

Indeed, when President Obama announced the

final rule of the CPP in August 2015, he did not

downplay its significance. The plan aimed to cut

6

carbon emissions by 32 percent by 2030. In his words,

without the CPP:

Power plants can still dump unlimited amounts of

carbon pollution into the air. For the sake of our

kids and the health and safety of all Americans,

that has to change. For the sake of the planet, that

has to change.

Barack Obama, Remarks by the President in

Announcing the Clean Power Plan, (Aug. 3, 2015).

https://obamawhitehouse.archives.gov/the-press-offic

e/2015/08/03/remarks-president-announcing-cleanpower-plan (accessed Dec. 16, 2021).

President Biden has announced even more

ambitious plans to cut carbon emissions. According to

the New York Times, “[t]he new American goal nearly

doubles

the

pledge

that

the Obama

administration made to cut emissions 26 percent to 28

percent below 2005 levels by 2025 . . .” Lisa Friedman

and Coral Davenport, Biden Will Pledge to Cut

Greenhouse Gas Emissions Nearly in Half, N.Y. TIMES

(April 20, 2021, updated Oct. 27, 2021),

https://www.nytimes.com/2021/04/20/climate/biden-cl

imate-change.html. As the New York Times reports,

this target “would require Americans to transform the

way they drive, heat their homes and manufacture

goods.” Id. Particularly relevant here, President

Biden seeks to eliminate all carbon emissions from the

electric sector by 2035. John Muyskens and Juliet

Elperin, Biden Calls for 100 Percent Clean Electricity

by 2035. Here’s How Far We Have to Go, WASH. POST

(July 30, 2020).

7

As set forth below, there should be little debate

about “vast economic and political significance” of

these policy decisions, especially for states like Ohio.

B. The State of Ohio and Energy Production

For decades, the State of Ohio has advertised itself

as “The Heart of it All,” owing to its distinctive shape

and its centrality to the rest of nation. Ohio History

Central,

Ohio’s

State

Tourism

Slogans,

https://ohiohistorycentral.org/w/Ohio%27s_State_Tou

rism_Slogans (accessed Dec. 15, 2021). Ohio is

geographically and culturally diverse, with rolling

farmland, wooded Appalachian foothills, as well as

major urban centers. Ohio thus provides a test case

for how expansive regulatory changes to the power

generation industry might affect the country as a

whole.

Ohio is rich in natural resources, particularly

fossil fuels. Sitting atop the Utica Shale formation,

Ohio has increased its production of natural gas by

3,000% in the last decade. U.S. Energy Information

Administration, Ohio, State Energy Estimates,

https://www.eia.gov/state/?sid=OH (accessed Dec. 16,

2021). Ohio is currently the sixth largest producer of

natural gas. Id. In addition, Ohio has almost 5% of all

estimated U.S. coal reserves and is the nation’s tenthlargest producer of bituminous coal. Id. In 2019,

slightly more than two-thirds of the coal mined in Ohio

was used in Ohio, predominantly in power plants. Id.

But Ohio plays a key role in U.S. coal exports as

well, with coal from Ohio and nearby states

transported by rail to Lake Erie ports like Cleveland,

Toledo and Lorain. This traffic also flows south down

8

the Ohio River from Cincinnati, which is “one of the

nation’s largest inland coal ports.” Id. Similarly,

“[b]ecause Ohio produces more natural gas than it

consumes, a larger amount of natural gas leaves the

state by interstate pipelines than enters.” U.S.

Energy Information Administration, State Profiles

and Energy Estimates, Ohio, https://www.eia.gov/

state/analysis.php?sid=OH (accessed Dec. 15, 2021). In

addition, with 24 underground storage fields with a

combined capacity of 575 billion cubic feet, Ohio has

the seventh largest natural gas storage capacity

among the states. Id.

All of this is say that, in Ohio, the mining,

extraction and export of fossil fuels means jobs.

According to the U.S. Bureau of Labor statistics,

nearly 20,000 Ohioans work directly in mining,

extraction, or mining support services. The true

impact of fossil fuels, particularly natural gas, on

Ohio’s economy is far greater, however. A 2021

analysis commissioned by the American Petroleum

Institute and performed by Price Waterhouse Coopers

(PwC) estimates that “the US oil and natural gas

industry’s operations directly or indirectly supported

9.0 million full-time and part-time jobs in the national

economy in 2019.” Impacts of the Oil and Natural Gas

Industry on the U.S. Economy in 2019,

PricewaterhouseCoopers LLP, 7 (July 2021),

https://www.api.org/-/media/Files/Policy/AmericanEnergy/PwC/API-PWC-Economic-Impact-Report.pdf.

(accessed Dec. 16, 2021).

Ohio ranked seventh in the nation, with 375,000

people employed directly or indirectly in oil and gas

production. Id. at 13. The PwC study estimated the

9

total economic impact of the oil and gas industry at

$58.8 billion. Id. at 14. According to a 2014 study by

the Heritage Foundation, if the CPP were enforced,

roughly 45% of coal-mining jobs would be lost. Based

on this prediction, Ohio can anticipate 9,000 lost jobs

in mining, extraction, or mining support services

alone. The report also claims that under the CPP,

average personal family income (inflation-adjusted)

would be reduced by approximately $7,000. Kevin D.

Dayaratna, Nicolas D. Loris, and David W. Kreutzer,

HERITAGE FOUNDATION, The Obama Administration’s

Climate Agenda: Underestimated Costs and

Exaggerated Benefits, Backgrounder No. 2975,

(November 13, 2014), http://report.heritage.org/

bg2975.

The same report predicted that the CPP would

cause a national peak employment shortfall of more

than 1 million jobs, with over 500,000 of those coming

from manufacturing. Id. Because over 12% of Ohio

workforce was employed in the manufacturing sector,

the effect on Ohio would be severe. National

Association

of

Manufacturers,

2019

Ohio

Manufacturing Facts, https://www.nam.org/state-ma

nufacturing-data/2019-ohio-manufacturing-facts

(accessed Dec. 16, 2021).

According to the Heritage study, Ohio would lose

approximately 31,700 manufacturing jobs under the

CPP regime. Dayaratna and Loris, supra. Further,

renewable energy currently supplies only 3% of Ohio’s

in-state electricity generation. Thus, goals articulated

by the current administration to create a carbonpollution free power sector by 2035—less than 14

years from today—present a steep climb. This goal is

10

no small thing or mere “gap” to be filled by agency

rulemaking.

Furthermore, there are immediate human and

civic costs built into those future gains. For example,

in November, 2016, Dayton Power & Light (DP&L)

announced the closure of its two coal-fired power

plants in Adams County, Ohio. Alec MacGillis, Forced

to Choose Between a Job—and a Community,

PROPUBLICA (May 23, 2018), https://www.propublic

a.org/article/adams-county-ohio-coal-forced-to-choosebetween-a-job-and-a-community. The DP&L plants

were the largest employers in the rural county. Id. The

Adams County plants provided good paying jobs, with

a total of “$60 million in annual payroll” and drew

workers from across Southwestern Ohio and Northern

Kentucky. Id. The Manchester school system was one

of the best funded in the state. Id.

But the closure of these plants meant that the

county general fund lost $787,800 in property tax

revenue. Id. It meant that the once well-funded school

system now scrambled to pay bills. It meant that the

truck dealerships, where plant workers, confident in

well-paying union jobs, no longer made sales. It also

meant that many workers decided to leave Adams

County. Id. The consequences of closing two fossil fuel

power plants in Southwestern Ohio were enormous.

The effect of the type of EPA regulation envisioned by

the CPP and needed to meet the President’s ambitious

goals will be exponentially greater.

11

C. Increased Energy Costs for Ohio Consumers

and Manufacturers.

Beyond the economic upheaval of lost jobs, as Ohio

transitions from fossil fuels to renewable energy, the

fundamental shift envisioned by the CPP and

President Biden’s goals would significantly increase

the price of energy for Ohio’s manufacturers and

consumers. For instance, an October 2014 report

produced by NERA Economic Consulting forecast that

the price of natural gas would rise between 2% and

29% depending upon the scenario. NERA Economic

Consulting, Potential Energy Impacts of the EPA

Proposed Clean Power Plan, (October 16, 2014)

https://www.nera.com/publications/archive/2014/pote

ntial-impacts-of-the-epa-clean-power-plan.html. The

report’s baseline expected 51 gigawatts of coal fired

electricity generation to be retired, with a resulting

loss of jobs and tax revenue for the impacted

communities. Id. The CPP would cause an additional

45 gigawatts to 169 gigawatts of coal plants to retire.

Id. Based on expected changes in the generation

technology mix needed to comply with the CPP, the

delivered electricity price is expected to rise 12% to

17% as a direct result of implementing the CPP. Id.

These costs would not be shared equally. A

December 2014 report produced by the Pacific

Research Institute (PRI) demonstrates how the

expected rise in the cost of electricity would hurt lowincome and African American families the hardest.

Wayne Winegarden, PhD, PACIFIC RESEARCH

INSTITUTE, The Regressive Impact on Ohio’s LowerIncome and African-American Families from EPA’s

Proposed Regulations on Carbon Dioxide Emissions,

12

(December 2014) https://www.pacificresearch.org/wpcontent/uploads/2017/03/EPA_Ohio_rFweb.pdf. The

report explained that in 2014, the electricity

expenditures in Ohio were 2.9% for the average

household. Id. However, household electricity

expenditure rates vary: in parts of Summit County

(Akron area), the burden is as high as 16.1%—nearly

six times the state average. Id. The report forecasts

that average household electricity expenditure would

rise to 3.8% under the CPP, and the same Summit

County residents’ burden would rise to 20.9%. Id.

Further changes to how power is generated—such

as those contemplated by the CPP—would also

disproportionately impact those who live in cities,

particularly African-Americans. According to PRI’s

analysis, the average electricity expenditures in Ohio

for African-American households was 4.5% at the time

of the report. Id. The burden was significantly higher,

however, in specific parts of Cuyahoga County

(Cleveland area), with the pre-CPP electricity

expenditure rates hitting more than 20.0%. Id. Worse

still, under the CPP, the average household electricity

expenditures of African-American families in Ohio is

forecast to rise to 5.8%, with Cuyahoga County

residents’ electricity cost rising to 26% of household

income. Id.

As illustrated above, the impacts of the CPP on

Ohio industry, employment, taxation, education, and

household budgets would be profound. Congress did

not speak clearly in assigning authority over these

decisions—which have “vast economic” and “politically

significant” consequences—to the EPA.

***

13

CONCLUSION

For the reasons stated above, the decision of the

United States Court of Appeals for the D.C. Circuit

should be reversed.

Respectfully submitted,

JAY R. CARSON

Counsel of Record

ROBERT ALT

THE BUCKEYE INSTITUTE

88 East Broad Street Suite 1300

Columbus, OH 43215

(614) 224-4422

j.carson@buckeyeinstitute.org

robert@buckeyeinstitute.org

December 20, 2021