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., Petitioners,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents,

THE NORTH AMERICAN COAL CORPORATION, Petitioners,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents,

WESTMORELAND MINING HOLDINGS LLC, Petitioner,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents,

NORTH DAKOTA, Petitioner,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents.

__________________

On Writs of Certiorari to the United States Court of

Appeals for the D.C. Circuit

__________________

BRIEF OF AMICI CURIAE SOUTHEASTERN LEGAL

FOUNDATION AND NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER IN SUPPORT OF PETITIONERS

__________________

THOMAS R. MCCARTHY

Counsel of Record

J. MICHAEL CONNOLLY

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard, Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

December 20, 2021

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT ................................................................3

I.

The Clean Power Plan repeal was necessary

because it violated principles of federalism

codified in the Clean Air Act ............................3

II.

The Clean Power Plan repeal was necessary

because it violated separation of powers

principles ...........................................................8

III.

A.

The Clean Power Plan required a

clear authorization from Congress to

be valid ...................................................8

B.

Congress did not grant the EPA

authority to enact the Clean Power

Plan .......................................................11

If allowed to stand, the decision below will

wreak havoc on small businesses ...................15

CONCLUSION ..........................................................20

ii

TABLE OF AUTHORITIES

Cases

Alabama Ass’n of Realtors v. Dep’t of Health &

Hum. Servs., 141 S. Ct. 2485 (2021)........................ 7

Bell v. Cheswick Generating Station,

734 F.3d 188 (3d Cir. 2013) ..................................... 7

Bond v. United States,

572 U.S. 844 (2014) .................................................. 7

FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000) ..................... 9, 12, 13, 15

Indep. Meat Packers Ass’n v. Butz,

526 F.2d 228 (8th Cir. 1975) .................................... 9

King v. Burwell,

135 S. Ct. 2480 (2015) .............................................. 9

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .............................................. 1

Luminant Generation Co., LLC v. United States

EPA, 675 F.3d 917 (5th Cir. 2012) .......................... 7

Morrison v. Olson,

487 U.S. 654 (1988) .................................................. 8

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ................................................ 1

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) .............................................. 3, 4

Salt Lake Cty. v. Volkswagen Grp. Of Am., Inc.,

959 F.3d 1201 (9th Cir. 2020) .................................. 7

iii

Util. Air Regulatory Grp. v. EPA,

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

Whitman v. Am. Trucking Assocs.,

531 U.S. 457 (2001) .................................................. 9

Will v. Michigan Dept. of State Police,

491 U.S. 58 (1989) .................................................... 7

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .................................................. 9

Constitution and Statutes

U.S. Const. Art. I, § 1 .................................................. 8

U.S. Const. Art. II, § 1 ................................................. 8

U.S. Const. Art. III, § 1 ............................................... 8

16 U.S.C. § 824 .......................................................... 14

42 U.S.C. § 7411(b)(1)(B) ............................................. 4

42 U.S.C. § 7411(d)(1).................................................. 4

42 U.S.C. § 7411(d)(2)(A) ............................................. 4

42 U.S.C. § 7651n ...................................................... 12

42 U.S.C. § 15961 ...................................................... 12

Regulations

40 C.F.R. pt. 60, subpt. TTTT, tbl 1 .......................... 10

40 C.F.R. pt. 60, subpt. UUUU, tbl 1........................ 10

40 C.F.R. § 60.22(a) ..................................................... 6

40 C.F.R. § 60.22(b)(5) ................................................. 6

40 C.F.R. § 60.24(f)(3) .................................................. 6

40 C.F.R. § 60.5790(c)(1) ........................................... 13

iv

40 Fed. Reg. 53, 340 (Nov. 17, 1975)........................... 6

79 Fed. Reg. 1,430 (Jan. 8, 2014) .............................. 12

80 Fed. Reg. 64,510 (Oct. 23, 2015) .......... 5, 10, 12, 13

82 Fed. Reg. 48,042 ............................................. 14, 15

82 Fed. Reg. 54924 .................................................... 12

84 Fed. Reg. 32,529-23 ................................................ 6

Executive Order No. 14,008, 86 Fed. Reg. 7619

(Jan. 27, 2021) ........................................................ 16

Other Authorities

Sam Batkins, EPA’s Greenhouse Gas Regulation

Expects Coal Generation to Decline 48 Percent,

American Action Forum (Aug. 4, 2015),

bit.ly/31O1eYU ....................................................... 11

Brief for Members of Congress as Amicus Curiae,

West Virginia v. EPA, 15-1363 (2016) ................... 15

Clean Energy Jobs & American Power Act, S.

1733, 111th Cong. (2009) ....................................... 13

Clean Power Plan, Regulatory Impact Analysis ...... 11

Dan Eberhart, Rising Energy Poses Big

Inflationary Threat To U.S. Economy, Forbes

(Sept. 21, 2021), bit.ly/3sahXAw ........................... 17

Energy Star, Small Businesses: An Overview of

Energy Use and Energy Efficiency

Opportunities, bit.ly/3pYjKGq ........................... 3, 16

EPA’s Clean Power Plan An Economic

Impact Analysis, NMA ............................... 11, 15, 16

The Federalist No. 47 (James Madison) ..................... 8

v

Josh Mitchell, Soaring Energy Prices Raise

Concerns About U.S. Inflation, Economy,

Wall St. J. (Oct. 10, 2021) ................................ 17, 18

NFIB Research Found., NFIB National Small

Business Poll (2006), bit.ly/3GtHoBc .............. 16, 18

NFIB Research Found., Small Business

Problems & Priorities (2020) ........................... 17, 19

Rocky Mountain Coal Institute, Fast Facts

About Coal ........................................................ 10, 11

S. Cong. Res. 8, S. Amend. 646, 113th Cong.

(2013) ...................................................................... 13

Ruth Simon, Covid-19’s Toll on U.S. Business?

200,000 Extra Closures in Pandemic’s First

Year, Wall St. J. (Apr. 16, 2021),

on.wsj.com/33fI5Q6 ................................................ 16

U.S. Bureau of Labor Statistics, Consumer prices

increase 6.2 percent for the year-end,

bit.ly/3seNiCt ......................................................... 17

U.S. Energy Information Administration,

Analysis of the Impacts of the Clean Power

Plan (May 2015), bit.ly/3ICslXR............................ 11

U.S. Small Bus. Admin., Frequently Asked

Questions (2012) ..................................................... 19

United States of America, Nationally Determined

Contribution (Apr. 22, 2021).................................. 19

Joby Warrick, White House set to adopt sweeping

curbs on carbon pollution, Wash. Post (Aug. 1,

2015) ....................................................................... 10

1

INTEREST OF AMICI CURIAE 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public-interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging governmental overreach and other actions

in violation of the constitutional framework. See, e.g.,

Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014),

and Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617

(2018). SLF also regularly files amicus curiae briefs

with this Court about issues of agency overreach and

deference. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400

(2019).

The National Federation of Independent Business

Small Business Legal Center (NFIB SBLC) is a

nonprofit, public-interest law firm, established to

provide legal resources and be the voice for small

businesses in the nation’s courts. NFIB is the nation’s

leading small business association, representing

members in Washington and all fifty state capitals.

Founded in 1943 as a nonprofit, nonpartisan

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certify that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae or its counsel has made a monetary contribution to

the preparation or submission of this brief. The parties have

consented to the filing of this brief.

2

organization, NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. To fulfill its role as the voice for

small business, the NFIB SBLC frequently files

amicus briefs in cases that affect small

businesses.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The EPA does not have the vast authority the D.C.

Circuit purported to give it. When the EPA

promulgated the Clean Power Plan (CPP), it created

significant federalism issues by requiring broad

changes to the energy industry at the state level. It

coerced States to comply with the EPA’s guidelines by

creating implementation plans that would cripple

state energy programs if left unchecked. The CPP also

violated

separation-of-powers

principles

by

encroaching on powers granted to the legislative

branch. The EPA needed clear authorization from

Congress before it could impose such economically and

politically significant regulations on the energy

industry. For these reasons, among others, the EPA

correctly repealed the CPP as an improper exercise of

regulatory power unauthorized by statute. But the

D.C. Circuit stunningly held that the EPA could not so

limit itself.

If left in place, that decision will have dire

consequences for America’s small businesses. In

addition to causing thousands of job losses in the

electricity, coal, and natural gas sectors, initial studies

projected that the CPP would raise wholesale

electricity’s cost by hundreds of billions of dollars. But

3

the Biden Administration now intends to employ

EPA’s new-found authority to go further. If allowed to

stand, the D.C. Circuit’s view of EPA’s authority will

allow the government to subordinate important

concerns to “the single overarching goal of shifting the

generation of electricity to zero- or low-carbon

resources.” Westmoreland Pet. 21-22. That singlemindedness coupled with novel agency power will

drive up energy costs and harm small businesses.

Energy costs are already one of the largest

expenses for most small businesses in America.

America’s small businesses spend roughly $60 billion

on energy each year. See Energy Star, Small

Businesses: An Overview of Energy Use and Energy

Efficiency Opportunities, bit.ly/3pYjKGq. Regulations

that increase energy costs will impact the bottom line

for nearly all of the nation’s small employers—many

of whom have already endured unprecedented

challenges throughout the COVID-19 pandemic. Now,

more than ever, small businesses cannot afford such

drastic price increases. The Court should reverse the

decision below.

ARGUMENT

I.

The Clean Power Plan repeal was necessary

because it violated principles of federalism

codified in the Clean Air Act.

The authority to regulate power traditionally has

been reserved to the States. See Pac. Gas & Elec. Co.

v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 205-06 (1983) (explaining the States’

traditional role in regulating energy). Although the

federal government has controlled interstate rates

4

and transmissions, issues such as the “[n]eed for new

power facilities, their economic feasibility, and rates

and services, are areas that have been

characteristically governed by the States.” Id. at 205.

Recognizing the States’ traditional role in this

area, Congress struck a necessary balance between

federal and state regulation in Section 111 of the

Clean Air Act. Although Section 111 contemplates

“standards of performance” for both new and existing

sources

of

power,

it

divides

this standards-setting responsibility between the

States and the federal government. The federal

government takes a primary role in regulating new

sources under Section 111(b), which requires the EPA

to establish nationally applicable “standards of

performance”

for

new

sources.

42

U.S.C.

§ 7411(b)(1)(B) (“[T]he Administrator shall publish

proposed regulations, establishing Federal standards

of performance for new sources ... [and] shall

promulgate ... such standards ... as he deems

appropriate.”). For existing sources, on the other hand,

the States take the lead. Section 111(d) allows the

EPA to issue only regulations that “establish a

procedure ... under which each State shall submit ... a

plan which [] establishes standards of performance for

any existing source.” 42 U.S.C. § 7411(d)(1). Only in

those “cases where the State fails to submit a

satisfactory plan” may the EPA “prescribe a plan for a

State.” 42 U.S.C. § 7411(d)(2)(A). In other words,

Section 111(d) allows States substantial flexibility in

achieving CO2 emissions reductions and addressing

the economic interests of their utilities in the most

cost-effective, investment-promoting manner.

5

The CPP upended Congress’s careful delineation

of authority. It set aggressive performance standards

for new coal-fired facilities, modified and

reconstructed coal-fired facilities, and new gas-fired

facilities. See Standards of Performance for

Greenhouse Gas Emissions From New, Modified, and

Reconstructed Stationary Sources: Electric Utility

Generating Units, 80 Fed. Reg. 64,510, 64,512-13 (Oct.

23, 2015) (setting a standard of 1,400 lbs CO2/MWh-g

for new coal-fired facilities, 1,800 to 2,000 lbs

CO2/MWh-g for modified and reconstructed coal-fired

facilities, and 1,000 lbs CO2/MWh-g for gas-fired

facilities). The EPA purported to do this under Section

111(b). Relatedly, instead of “establish[ing] a

procedure” for States to submit their own plans

“establish[ing] standards of performance for any

existing source,” the CPP set a uniform standard for

every State. The EPA purported to do this under

Section 111(d). Although the CPP said that its uniform

performance standards for States were mere

“guidelines,” the CPP in effect barred States from

imposing emissions standards that were less stringent

than the CPP’s specified national performance rates.

80 Fed. Reg. 64,870 (“Consideration of facility-specific

factors and in particular, remaining useful life, does

not justify a state making further adjustments to the

performance rates ... that the guidelines define for

affected [units] in a state and that must be achieved

by the state plan.”). In other words, the States had no

role in setting their own “standards of performance”;

they were instead left to implement the “standards of

performance” that the EPA mandates.

This elimination of the States’ role marked a sharp

departure from the EPA’s longstanding approach. In

6

1975, the EPA issued regulations establishing the

procedure by which States submit their own standards

of performance under Section 111(d). Those

regulations provided that the EPA would issue an

“emission guideline” that “reflects the application of

the best system of emission reduction.” See 40 C.F.R.

§ 60.22(a), (b)(5). But that “guideline” was just that.

States could issue less stringent standards by

demonstrating impossibility, unreasonable cost, or

“other factors specific to the facility (or class of

facilities) that make application of a less stringent

standard or final compliance time significantly more

reasonable.” Id. § 60.24(f)(3). The “emission

guideline,” as the EPA explained, was not “a legally

enforceable national emission standard.” Standards of

Performance for New Stationary Sources, 40 Fed. Reg.

53,340, 53,341 (Nov. 17, 1975). The EPA upended this

longstanding position with the CPP, however, by

issuing exactly that—a national standard.

The EPA correctly reverted to its theretofore

longstanding approach in 2019 by repealing the CPP.

Among other things, the EPA determined that the

CPP “significantly exceeded” the agency’s authority

and recognized a “notable absence of a valid limiting

principle.” 84 Fed. Reg. 32,529-23. Lack of some

limiting principle left the EPA free to eat away at the

flexibility afforded States under Section 111. Repeal

was thus necessary, especially in light of the EPA’s

role in cooperative federalism.

Courts around the country have long recognized

this important role. The Clean Air Act gives States the

first crack at setting standards for existing sources.

For new sources, the EPA acts as the minimum

7

standard-setter, leaving States with discretion as to

implementation. See Bell v. Cheswick Generating

Station, 734 F.3d 188, 190 (3d Cir. 2013) (“[The Clean

Air Act] employs a ‘cooperative federalism’ structure

under which the federal government develops baseline

standards that the States individually implement and

enforce.”) (citation omitted); Luminant Generation

Co., LLC v. United States EPA, 675 F.3d 917, 932 (5th

Cir. 2012) (“[A] cooperative federalism regime []

affords sweeping discretion to the states to develop

implementation plans and assigns to the EPA the

narrow task of ensuring that a state plan meets the

minimum requirements of the Act.”); see also Salt

Lake Cty. v. Volkswagen Grp. Of Am., Inc., 959 F.3d

1201, 1225 (9th Cir. 2020).

The CPP’s national standard for existing sources

upended the traditional “balance between federal and

state power’” without a clear statement from

Congress. Alabama Ass’n of Realtors v. Dep’t of Health

& Hum. Servs., 141 S. Ct. 2485, 2489 (2021); see also

Will v. Michigan Dept. of State Police, 491 U.S. 58, 65

(1989). But this Court will not authorize a “serious

reallocation” of authority between the federal

government and the States by Congress “[a]bsent a

clear statement of that purpose.” Bond v. United

States, 572 U.S. 844, 866 (2014). Congress provided no

such clear statement here, as the EPA recognized

when in repealed the CPP.

In sum, the Clean Air Act balanced federal and

State sovereignty interests by giving States the

opportunity to self-regulate in accordance with federal

goals—using direct federal regulation only as a “Plan

B” if the States fail to act. The CPP abandoned that

8

congressionally-mandated balance by setting targets

for individual States that force them to overhaul their

energy markets and regulatory structures to reach the

EPA’s air quality targets. The EPA’s repeal of the CPP

was thus necessary. Indeed, as Judge Walker pointed

out in dissent, the EPA “was required to repeal” it.

App. 165a. The repeal returned the regulatory

landscape to the correct balance struck by Congress.

The D.C. Circuit’s decision has once again upset that

balance. The Court should reverse the decision below.

II. The Clean Power Plan repeal was necessary

because it violated separation of powers

principles.

A. The Clean Power Plan required a clear

authorization from Congress to be valid.

Well aware of the dangers from consolidation of

power into the hands of one branch of government, the

Framers created a tripartite system with separate and

distinct powers. Art. I, § 1 (“All legislative Powers

herein granted shall be vested in a Congress[.]”); Art.

II, § 1 (“The executive Power shall be vested in a

President[.]”); Art. III, § 1 (“The judicial power ... shall

be vested in one supreme Court, and ... inferior

Courts[.]”). This was done to defend against “the very

definition of tyranny.” The Federalist No. 47 (James

Madison). This separation of powers serves as “the

absolutely central guarantee of a just Government.”

Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,

dissenting). To accomplish that goal, Article I’s

Vesting Clause expressly forbids the President from

exercising legislative powers. And this Court has

“completely refute[d] the claim that the President may

act as a lawmaker in the absence of a delegation of

9

authority or mandate from Congress.” Indep. Meat

Packers Ass’n v. Butz, 526 F.2d 228, 235 (8th Cir.

1975) (citing Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 587-89 (1952)).

This Court has indicated that it will be especially

vigilant in guarding that line in “extraordinary cases”

where “there may be reason to hesitate before

concluding that Congress has intended … an implicit

delegation.” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 159 (2000). When an agency

claims to discover a long hidden statutory power to

regulate,

the

Court

“typically

greet[s] its

announcement with a measure of skepticism.” Util.

Air Regulatory Grp v. EPA, 573 U.S. 302, 324 (2014).

Congress “does not … hide elephants in mouseholes.”

Whitman v. Am. Trucking Assocs., 531 U.S. 457, 468

(2001) (citing Brown & Williamson, 529 U.S. at 15960). As a result, if the issue affects “a significant

portion of the American economy,” Brown &

Williamson, 529 U.S. at 159, involves “billions of

dollars in spending each year,” or affects “millions of

people,” King v. Burwell, 135 S. Ct. 2480, 2489 (2015),

then there must be a clear statement from Congress

that an agency has the authority to regulate it. Util.

Air Regulatory Grp, 573 U.S. at 324 (citing Brown &

Williamson, 529 U.S. at 159). This is true “regardless

of how serious the problem an administrative agency

seeks to address.” Brown & Williamson, 529 U.S. at

125 (internal quotation omitted). Agencies may not

exercise their authority “in a manner that is

inconsistent with the administrative structure that

Congress enacted into law.” Id.

10

In the CPP, however, the EPA attempted to reduce

carbon dioxide emissions by regulating coal-fired

facilities out of existence. Purporting to “shift[]”

electric generation from fossil-fuel power plants to

alternative sources, 80 Fed. Reg. 64,726, the CPP set

more aggressive performance rates for existing coalfired and gas-fired facilities than it set for new

facilities—notwithstanding that existing facilities

cannot retrofit to achieve the same efficiency as new

ones. Compare 40 C.F.R. pt. 60, subpt. UUUU, tbl 1

(setting rates of 1,305 lbs CO2/MWh for existing coalfired facilities and 771lbs CO2/MWh for existing gasfired facilities), with 40 C.F.R. pt. 60, subpt. TTTT, tbl

1 (setting a rate of 1,400 lb CO2/MWh for newly

constructed steam generating units and integrated

gasification combined cycles). In other words, the EPA

based the performance standard for new facilities on

the best available technology, which is unattainable

for existing facilities, and then set the standard for

existing facilities even higher. By definition, then,

existing facilities could not comply with the CPP’s

standard. That scheme would force States to shift to

other types of power to comply with CPP and to keep

up with preexisting demand levels.

This shift was intentional. As the Obama

Administration admitted, the CPP was meant to

“aggressive[ly] transform[] … the domestic energy

industry.” Joby Warrick, White House set to adopt

sweeping curbs on carbon pollution, Wash. Post (Aug.

1, 2015), wapo.st/31HW0Oz. And it would accomplish

that goal by decimating the coal industry. Coal

remains the most affordable source of power and

provides about one third of the country’s electricity.

See generally Rocky Mountain Coal Institute, Fast

11

Facts About Coal, bit.ly/31Jnq6k. If the CPP had

remained in place, the EPA’s own analysis showed

that coal-fired generating capacity would be roughly

halved by 2030. See Clean Power Plan, Regulatory

Impact Analysis, at 2-3, 3-24, 3-31 (noting a reduction

from 336,000 MW in 2012 to 183,000 in 2030); see also

Sam Batkins, EPA’s Greenhouse Gas Regulation

Expects Coal Generation to Decline 48 Percent,

American

Action

Forum

(Aug.

4,

2015),

bit.ly/31O1eYU.

This would have significantly raised residential

electricity rates, reduced domestic coal production

32% by 2025, and cost over $8 billion a year. See U.S.

Energy Information Administration, Analysis of the

Impacts of the Clean Power Plan, at 18, 41-42 (May

2015), bit.ly/3ICslXR, Batkins, supra. An industry

analysis of the CPP determined that the total

increased energy costs to consumers could reach $214

billion. EPA’s Clean Power Plan An Economic Impact

Analysis, NMA, 4, bit.ly/31FwBVC. And the cost to

replace lost powerplant capacity could reach $64

billion. Id. at 6. The EPA can effect a change of this

magnitude only with clear authorization from

Congress. See, e.g., Util. Air Regulatory Grp., 573 U.S.

at 324.

B. Congress did not grant the EPA authority

to enact the Clean Power Plan.

The CPP’s extraordinary transformation of a

massive and vital industry had no clear authorization

from Congress, necessitating its repeal. To start, by

redefining the statutory term “standard of

performance,” the CPP purported to set emission

standards for existing energy technologies. 80 Fed.

12

Reg. 64780. But such a characterization undersold the

stakes. The standards set by the CPP were impossible

for coal facilities to meet under current technologies.

Thus, the likely impact of the CPP was for the coal

facilities to “shut down[], in which case it would

achieve a zero emission rate.” 80 Fed. Reg. 647080, n.

590. Such a drastic policy consequence had no basis in

the statute. A major rule like the CPP required clear

authorization from Congress, which the EPA lacks.

Util. Air Reg. Grp, 573 U.S. at 324 (quoting Brown &

Williamson Tobacco, 529 U.S. at 160).

The CPP contravened Congress’s attempts to

ensure that the coal industry remains viable. In the

1990 Amendments to the Clean Air Act, Congress

provided billions in funding for “clean coal

technology.” 42 U.S.C. § 7651n. That was incompatible

with the CPP’s goal of eliminating coal plants

altogether. In the Energy Policy Act of 2005, Congress

again affirmed its commitment to studying coal among

our country’s energy sources. 42 U.S.C. § 15961.

Additionally, Congress has a longstanding tax policy

of providing subsidies for coal energy. See Proposed

Rule, Standards of Performance for Greenhouse Gas

Emissions From New Stationary Sources: Electric

Utility Generating Units, 79 Fed. Reg. 1,430, 1478

(Jan. 8, 2014) (noting the tax benefits for coal

exploration and development). And as recently as

2017, Congress overruled agency rules that would

have limited coal mining. 82 Fed. Reg. 54924

(nullifying a coal-restrictive regulatory rule).

Moreover, the EPA promulgated the CPP in the

face of specific refusal by Congress to enact legislation

for CO2 reduction programs. Because an existing coal-

13

fired facility could not comply with the CPP’s

performance standards, it had only the option to

“shut[] down, in which case it would achieve a zero

emission rate.” 80 Fed. Reg. 647080, n. 590. Save that

result, the CPP set up a type of cap-and-trade program

that would allow only some coal-fired facilities to

remain operational. The EPA had explained, for

example, that “one of the things an affected [facility]

can do to achieve its emission limit” under the CPP “is

to buy a credit or an allowance from another affected

[facility] that has over-complied.” 80 Fed. Reg. 64,733.

An affected facility could acquire such an allowance by

“invest[ing] in actions at facilities owned by others[] in

exchange for rate-based emission credits” that offset

the original facility’s own higher emission rates. Id.;

see also id. (“Trading provides an affected EGU other

options besides direct implementation of emission

reduction measures in its own facility or an affiliated

facility

when lower-cost

emission

reduction

opportunities exist elsewhere.”); see also 40 C.F.R. §

60.5790(c)(1).

But Congress had declined to take up

consideration of similar programs. In fact, only after

Congress failed to act on a similar cap-and-trade

program did the EPA move forward with the CPP. See,

e.g., Clean Energy Jobs & American Power Act,

S. 1733, 111th Cong. (2009) (rejecting cap-and-trade);

S. Cong. Res. 8, S. Amend. 646, 113th Cong. (2013)

(rejecting carbon tax). The agency’s argument that

failed legislative proposals demonstrate congressional

intent for agency action strains credulity. This Court

has rejected similar attempts in the past. See Brown

& Williamson, 529 U.S. at 147-155 (outlining why

14

Congress rejecting similar proposals establishes the

agency does not have authority to implement its own).

The CPP has an additional statutory infirmity.

During the CPP repeal, the EPA recognized that

“regulation of the nation’s generation mix itself is not

within the Agency’s authority.” Proposed Repeal, 82

Fed. Reg. 48,042. This was because Congress provided

that “[r]egulation of the energy sector qua energy

sector is generally undertaken by the Federal Energy

Regulatory Commission (FERC)” in conjunction with

the States to regulate energy markets—not the EPA.

Id. See, e.g., 16 U.S.C. § 824. The EPA correctly

recognized that “the Federal Power Act ...

establishe[d] long-recognized regulatory authority for

the FERC over electric utilities engaged in interstate

commerce.” See Proposed Repeal, 82 Fed. Reg. 48,042.

But in its original efforts to promulgate the CPP, EPA

had, in contrast, relied on the incorrect claim that its

jurisdiction overlapped with FERC.

These concerns ultimately raise separation of

powers problems because, outside of any congressional

authorization, the EPA gave to itself the authority to

write and enforce extraordinarily broad rules—

conflating the domains of the executive and legislative

branches. If, as the EPA claims, the statutory phrase

“standard of performance” can mean instituting a

system to trade “rate-based emission credits” or

requiring States and facilities to substitute one mode

of energy for another, then the Clean Air Act’s

provisions lack a limiting principle. The EPA’s

attempt to broaden its authority under the Clean Air

Act, through the CPP, cannot stand within our

established constitutional order. When a problem

15

affects a significant portion of the American economy,

requiring tradeoffs and a balancing of group interests,

the responsibility to act must lay at the feet of

Congress. Allowing unelected bureaucrats to fix such

problems strips the American people of their power to

hold officials accountable and contravenes our

republican form of government.

There can be no doubt then, as Members of

Congress have explained, that the CPP “usurps th[e]

essential policy-setting role of Congress by impos[ing]

significant economic burdens on States and the nation

to address climate change in EPA’s prescribed way

without achieving measurably significant climate

benefits. This is not a policy choice that EPA is allowed

to make.” Brief for Members of Congress as Amicus

Curiae at 23, West Virginia v. EPA, 15-1363 (2016).

Because the CPP brought “about an enormous and

transformative expansion in EPA’s regulatory

authority without clear congressional authorization,”

it has violated the “clear statement” rule. See Util. Air

Regulatory Grp., 573 U.S. at 324 (quoting Brown &

Williamson, 529 U.S. at 159). The CPP’s repeal, on the

other hand, “ha[d] the advantage of not implicating

this doctrine.” 82 Fed. Reg. 48,042.

III. If allowed to stand, the decision below will

wreak havoc on small businesses.

Affirming the EPA’s claimed authority to issue

cumbersome, federally-mandated energy regulations

will wreak havoc on America’s small businesses. In

addition to causing thousands of job losses in the

electricity, coal, and natural gas sectors, initial studies

projected that the CPP would raise wholesale

electricity’s cost by $214 billion. See EPA’s Clean

16

Power Plan: An Economic Impact Analysis, Nat’l

Mining Ass’n, at 2 (Nov. 13, 2015); Westmoreland Pet.

21-22. But the Biden Administration now intends to

employ EPA’s new-found authority to go further. See

e.g., Executive Order No. 14,008, 86 Fed. Reg. 7619

(Jan. 27, 2021) (promising to “reduce[] climate

pollution in every sector of the economy”). If allowed

to stand, the D.C. Circuit’s view of EPA’s authority

will let the government subordinate important

concerns to “the single overarching goal of shifting the

generation of electricity to zero- or low-carbon

resources.” Westmoreland Pet. 21-22. That singlemindedness coupled with novel agency power will

drive up energy costs and harm small businesses.

Energy costs are already one of the largest

expenses for America’s small businesses. For nearly

70 percent of small businesses, energy is a top five

cost. See NFIB Research Found., NFIB National

Small Business Poll (2006), bit.ly/3GtHoBc. For 35

percent of small businesses, it’s a top three cost. Id.

Indeed, the EPA’s Energy Star program estimates

that American small businesses spend roughly $60

billion on energy each year. See Energy Star, Small

Businesses: An Overview of Energy Use and Energy

Efficiency Opportunities, bit.ly/3pYjKGq. As a result,

regulations that increase energy costs will impact the

bottom line for nearly all of the nation’s small

employers—many of whom have already endured

unprecedented challenges throughout the COVID-19

pandemic. See, e.g., Ruth Simon, Covid-19’s Toll on

U.S. Business? 200,000 Extra Closures in Pandemic’s

First Year, Wall St. J. (Apr. 16, 2021),

on.wsj.com/33fI5Q6. Now, more than ever, small

businesses cannot afford significant price increases.

17

Energy costs are already soaring. The Consumer

Price Index, generated by the U.S. Bureau of Labor

Statistics, recently reported that energy prices rose 33

percent over the last 12 months. See U.S. Bureau of

Labor Statistics, Consumer prices increase 6.2 percent

for the year-end, bit.ly/3seNiCt. And those price

increases are taking a toll on small businesses.

Small business owners are increasingly worried

about the rising cost of energy. NFIB surveys small

business owners every four years about problems

facing their businesses. Owners ranked most

problems in the 2020 survey as they did in 2016—

except one. See NFIB Research Found., Small

Business

Problems

&

Priorities

(2020),

bit.ly/3dL8O9k. When ranking problems in order of

importance, the “cost of natural gas, propane,

gasoline, diesel, fuel oil” jumped 15 positions—

ranking 34th in 2016 and 19th in 2020. Id. at 4. This

represented the largest delta from 2016 to 2020. Id. at

13. For most small business owners, energy costs top

myriad other issues including health and safety

regulations, poor sales, cash flow, unemployment

compensation, mandatory family or sick leave,

cybercrime, and interest rates. Id. at 9-11.

Swelling energy costs hurt the bottom line for

small businesses, and American families are paying

the price. Record levels of business owners are raising

prices or plan to raise prices because of higher

operational costs that include energy. See e.g., Dan

Eberhart, Rising Energy Poses Big Inflationary Threat

To U.S. Economy, Forbes (Sept. 21, 2021),

bit.ly/3sahXAw; Josh Mitchell, Soaring Energy Prices

Raise Concerns About U.S. Inflation, Economy, Wall

18

St. J. (Oct. 10, 2021), on.wsj.com/3ytuhNE. And these

trends are likely to continue throughout the next year.

Small businesses will only have two options as a

result—raise prices or suffer reduced earnings. Both

harm end-user consumers. Burdensome, one-size-fitsall federal regulations like the Clean Power Plan and

cap-and-trade style regimes will drastically increase

energy costs for America’s small businesses—and in

turn, American families.

Small businesses cannot comply with the EPA’s

aggressive and unlawful regulatory edicts. These

employers use energy for countless business-essential

purposes. For example, the primary energy cost for 38

percent of small firms is operating vehicles. See NFIB

Research Found., NFIB National Small Business Poll

(2006), bit.ly/3GtHoBc. For one-third of small

businesses, the primary energy expense is heating and

cooling, and for one-fifth, the primary energy expense

is operating equipment. Id. These essential

expenditures are business necessities that small firms

simply cannot do without.

Virtually all businesses emit at least some

greenhouse gases and could be within the reach of

federally-mandated regulations. And even if large

businesses such as public utilities and large-scale

manufacturers bear the initial costs of the program,

they will soon pass those costs to small businesses and

end-user consumers in the form of higher prices.

Beyond the regulations, cap and trade’s hidden

taxes will affect all businesses, even if they don’t have

high emissions. If small businesses with low emissions

are exempt, they will still pay indirectly for the capand-trade system through higher taxes and higher

19

prices. Federally-mandated regimes like the Clean

Power Plan are not feasible and will significantly raise

energy-related costs and lead to considerable job loss.

According to the U.S. Small Business Administration,

small businesses comprise 49.2 percent of privatesector employment. See U.S. Small Bus. Admin.,

Frequently Asked Questions (2012), bit.ly/3dLpMV6.

Thus, what hurts small business, hurts America.

Small businesses depend on energy supplies at

globally competitive prices. President Biden promised

that the United States would cut its emissions in half

by the end of this decade. See United States of

America, Nationally Determined Contribution 1-2

(Apr. 22, 2021), bit.ly/3EVWXkU. Even a partial

delivery on this promise would devastate small

businesses across the nation. Small businesses need

access to reliable, affordable energy supplies to remain

operative and competitive. To support small

businesses after a challenging pandemic, America

should be expanding its sources of energy—not

restricting them.

Abandoning the Clean Power Plan will not leave

the environment unprotected. Small business owners

across America continue to demonstrate a diligent,

sincere commitment to reducing energy use and

operating in a more environmentally-mindful manner.

The vast majority of small business owners agree that

“reducing energy use in a cost-effective manner” is a

problem worth tackling. See NFIB Research Found.,

Small Business Problems & Priorities (2020),

bit.ly/3dL8O9k. In fact, small business owners agree

that its’s a top five priority. Id. But “setting a national

energy policy designed to destroy a particular

20

industry” will produce serious burdens and few

benefits. Westmoreland Pet. 21.

The D.C. Circuit’s sprawling view of EPA’s

authority will allow the government to enact

burdensome and costly national energy policies that

will devastate small businesses. Indeed, “every

regulation under the statute to follow will be shaped

by this new and wildly expansive authority.” West

Virginia Pet. 2-3. That decision cannot stand.

CONCLUSION

For these reasons, the Court should reverse the

decision below.

Respectfully submitted,

THOMAS R. MCCARTHY

Counsel of Record

J. MICHAEL CONNOLLY

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

December 20, 2021

Counsel for Amici Curiae