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

Supreme Court briefJan 18, 2022

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Nos. 20-1530, 20-1531, 20-1778, and 20-1780

In the Supreme Court of the United States

___________

STATE OF WEST VIRGINIA, ET AL., PETITIONERS

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

THE NORTH AMERICAN COAL CORPORATION, PETITIONER

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

BRIEF FOR THE

POWER COMPANY RESPONDENTS

___________

Kevin Poloncarz

COVINGTON & BURLING LLP

415 Mission Street, Suite 5400

San Francisco, CA 94105

(415) 591-6000

kpoloncarz@cov.com

S. Conrad Scott

COVINGTON & BURLING LLP

620 Eighth Avenue

New York, NY 10018

January 18, 2022

Beth S. Brinkmann

Counsel of Record

Eric Chung

Laura E. Dolbow

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

Counsel for Power Company

Respondents

Additional Captions Listed on Inside Cover

WESTMORELAND MINING HOLDINGS LLC, PETITIONER

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

NORTH DAKOTA, PETITIONER

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

QUESTION PRESENTED

Whether the Clean Air Act, 42 U.S.C. § 7401 et

seq., unambiguously restricts the Environmental Protection Agency to considering only measures that can

be applied “at and to” individual power plants, when

EPA determines the “best system of emission reduction [BSER],” § 7411(a)(1), that has been adequately

demonstrated for reducing carbon dioxide from the

listed existing stationary source category of fossil fuelfired power plants (which must be reflected in the relevant standards of performance developed by States,

§ 7411(d)).

AMENDED CORPORATE DISCLOSURE

STATEMENTS

Pursuant to this Court’s Rule 29.6, Power Company Respondents—Consolidated Edison, Inc., Exelon

Corporation, National Grid USA, New York Power

Authority, Power Companies Climate Coalition, and

Sacramento Municipal Utility District—provide the

following disclosure statements.

Consolidated Edison, Inc. states that it is a

holding company that has outstanding shares and

debt held by the public and may issue additional securities to the public. It has no parent corporation and

no publicly held company owns 10 percent or more of

its stock.

Exelon Corporation states that it is a holding

company. It has no parent corporation and no publicly

held company owns 10 percent or more of its stock.

National Grid USA states that it is a holding

company. All of the outstanding shares of common

stock of National Grid North America Inc. are owned

by National Grid (US) Partner 1 Limited. All of the

outstanding ordinary shares of National Grid (US)

Partner 1 Limited are owned by National Grid (US)

Investments 4 Limited. All of the outstanding ordinary shares of National Grid (US) Investments 4

Limited are owned by National Grid (US) Holdings

Limited. All of the outstanding ordinary shares of National Grid (US) Holdings Limited are owned by

National Grid plc. National Grid plc is a public limited company organized under the laws of England

and Wales. No publicly held corporation directly owns

iii

10 percent or more of National Grid plc’s outstanding

ordinary shares.

New York Power Authority states that it is a

New York State public-benefit corporation. It has no

parent corporation and no publicly held company

owns 10 percent or more of its stock.

Sacramento Municipal Utility District states

that it is a community-owned, not-for-profit electric

service provider, has no parent corporation and no

publicly held company owns 10 percent or more of its

stock.

Power Companies Climate Coalition states

that it is an unincorporated association of companies

engaged in the generation and distribution of electricity and natural gas. Its members include, in addition

to each of the foregoing Respondents, the following entities:

Los Angeles Department of Water and Power

states that it is a vertically integrated publicly owned

electric utility of the City of Los Angeles.

Pacific Gas and Electric Company states that

it is a public utility incorporated in the state of California and a wholly owned subsidiary of PG&E

Corporation. No publicly held corporation directly

owns more than 10 percent of PG&E Corporation’s

shares.

Puget Sound Energy, Inc. states that it is a public utility incorporated in the State of Washington. All

of the outstanding shares of voting stock of Puget

Sound Energy, Inc. are held by Puget Energy, Inc. All

of the outstanding shares of voting stock of Puget Energy, Inc. are held by Puget Equico, LLC, an indirect

wholly-owned subsidiary of Puget Holdings LLC. No

publicly held corporation directly owns more than 10

percent of Puget Holdings LLC.

Seattle City Light states that it is a public utility

providing electricity to Seattle, Washington, and parts

of its metropolitan area and is a department of the

City of Seattle.

TABLE OF CONTENTS

Page

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

AMENDED CORPORATE DISCLOSURE

STATEMENTS...................................................... ii

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

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................5

A. Statutory Framework ........................................5

B. Factual Background ..........................................9

C. Procedural History ..........................................10

1. Regulation Under Section 7411 of

Greenhouse Gases Emitted by Stationary

Sources ....................................................... 10

2. Promulgation of the Clean Power Plan

(“CPP”) Rule .............................................. 11

3. Promulgation of the Affordable Clean

Energy (“ACE”) Rule ................................. 13

4. Lower Court Proceedings ........................... 15

SUMMARY OF ARGUMENT ...................................17

ARGUMENT .............................................................20

I. The Major Questions Doctrine Is Inapposite

in the Circumstances of These Cases. .................20

A. Application of the Doctrine Here Would Be

Based on Speculation and Yield an

Advisory Opinion Because There Is No

Agency Action in Effect or Proposed to Go

Into Effect That Adopts Any Purportedly

Overbroad Statutory Interpretation. ..............20

B. Application of the Doctrine Absent an

Agency Action Claiming Overbroad

Authority Would Depart from Precedent

and Pose Administrability Problems. .............21

C. Sections 7411(a) and 7411(d) Do Not, on

Their Face, Implicate the Major Questions

Doctrine. ...........................................................24

D. The Emission Reduction Envisioned by the

CPP Rule Occurred a Decade Early

Without the Rule Taking Effect, Defeating

Any Major Questions Concern. .......................26

II. The Clean Air Act Does Not Unambiguously

Require That, in Determining the BSER,

EPA Consider Only Measures Applied “at

and to” an Individual Plant. ................................27

A. The Statute’s Use of “System” in Section

7411 Demonstrates That EPA’s BSER

Determination Is Not Limited to Measures

“at and to” an Individual Plant. ......................27

B. The Statutory Text Requiring That EPA

Determine the BSER That Is “Adequately

Demonstrated” Establishes That EPA

Looks to Means Already Used for the

Source Category and, for Fossil Fuel-Fired

Plants, Those Are Not Limited to “at and

to” Measures. ...................................................35

C. The ACE Rule’s Interpretation Would

Undermine the Statutory Purpose of

Emission Reduction. ........................................42

vii

D. The ACE Rule’s Grammatical Theory of

“Application” Is Unsound. ...............................43

E. The ACE Rule Compounded Its Erroneous

Reading by Unnecessarily Expanding It to

Eliminate the Flexibility Congress

Accorded States and Power Plants. ................45

III. The Court Need Not Adopt an Artificially

Narrow Reading of Section 7411 to Avoid

Violation of the Nondelegation Doctrine.............47

CONCLUSION ..........................................................51

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .............................................. 23

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

Hum. Servs.,

141 S. Ct. 2485 (2021) .......................................... 21

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .............................................. 11

Biden v. Missouri,

No. 21A240, 2022 WL 120950

(U.S. Jan. 13, 2022) ........................................ 24, 26

Food & Drug Admin. v. Brown &

Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 22

Gen. Motors Corp. v. United States,

496 U.S. 530 (1990) ................................................ 6

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................. 22

Gregory v. Ashcroft,

501 U.S. 452 (1991) .............................................. 49

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................... 51

Johnson v. United States,

576 U.S. 591 (2015) .............................................. 23

King v. Burwell,

576 U.S. 473 (2015) .............................................. 21

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................. 9, 10, 11, 25

MCI Telecommc’ns Corp. v. Am. Tel. & Tel.

Co.,

512 U.S. 218 (1994) .............................................. 22

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 49

Nat’l Park Hospitality Ass’n v. Dep’t of

Interior,

538 U.S. 803 (2003) .............................................. 23

Negusie v. Holder,

555 U.S. 511 (2009) ................................................ 4

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) ........................ 39, 40

New York v. FERC,

535 U.S. 1 (2002) .................................................. 36

NFIB v. Dep’t of Labor,

No. 21A244, 2022 WL 120952

(U.S. Jan. 13, 2022) .............................................. 21

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) .............................................. 28

SEC v. Chenery Corp.,

318 U.S. 80 (1943) .................................................. 5

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975) ................................................ 25

Union Elec. Co. v. EPA,

427 U.S. 246 (1976) ................................................ 8

Util. Air Regul. Grp. v. EPA,

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

Welch v. United States,

578 U.S. 120 (2016) .............................................. 23

West Virginia v. EPA,

136 S. Ct. 1000 (2016) .......................................... 13

Whitman v. Am. Trucking Assns., Inc.,

531 U. S. 457 (2001) ....................................... 21, 22

Federal Statutes

18 U.S.C. § 924(e)(2)(B) ............................................. 23

42 U.S.C. § 7401(b)(1) ........................................... 5, 50

42 U.S.C. § 7408(a) ...................................................... 8

42 U.S.C. § 7409(a) ...................................................... 8

42 U.S.C. § 7410

42 U.S.C. § 7410(a) ...................................................... 8

42 U.S.C. § 7410(c) ...................................................... 8

42 U.S.C. § 7410(o) ...................................................... 8

42 U.S.C. § 7411

42 U.S.C. § 7411(a)(1) ....................................... passim

42 U.S.C. § 7411(a)(6) ............................................... 49

42 U.S.C. § 7411(a)(7) ............................................... 30

42 U.S.C. § 7411(b) .................................................... 11

42 U.S.C. § 7411(b)(1)(A) ............................................ 7

42 U.S.C. § 7411(c)(1) .................................................. 7

42 U.S.C. § 7411(c)(2) .................................................. 7

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

42 U.S.C. § 7411(d)(1) ..................... 1, 9, 24, 25, 44, 45

42 U.S.C. § 7411(d)(1)(A) .......................................... 49

42 U.S.C. § 7411(d)(1)(B) ............................................ 9

42 U.S.C. § 7411(d)(2) ....................................... 1, 9, 25

42 U.S.C. § 7411(h)(1) ............................................... 32

42 U.S.C. § 7411(h)(2) ............................................... 32

42 U.S.C. § 7411(h)(5) ............................................... 32

42 U.S.C. § 7412

42 U.S.C. § 7412(b)(2) ................................................. 8

42 U.S.C. § 7412(c)(1) .................................................. 8

42 U.S.C. § 7412(d)(2) ......................................... 33, 34

42 U.S.C. § 7607(d)(9) ............................................... 29

Air Quality Act of 1967, Pub. L. 90-148, 81

Stat. 485 ................................................................. 5

Clean Air Act of 1963, Pub. L. 88-206, 77

Stat. 392 ................................................................. 5

Clean Air Act Amendments of 1977, Pub. L.

95-95, § 109, 91 Stat. 685, 699-701 ........... 6, 30, 31

Clean Air Act Amendments of 1990, Pub. L.

101-549, § 403(a), 104 Stat. 2399, 2631 .......... 6, 31

xii

Clean Air Amendments of 1970, Pub. L. 91604, 84 Stat. 1676 .................................................. 6

Safe Drinking Water Amendments of 1977,

Pub. L. No. 95-190, § 14(8), 91 Stat.

1393, 1399 ............................................................ 31

Regulations

40 C.F.R. § 60.21(e) ..................................................... 8

40 C.F.R. § 60.23(a)(1) ............................................... 13

40 C.F.R. § 60.23a(a)(1) ............................................. 13

40 C.F.R. § 60.27(b) ................................................... 13

40 C.F.R. § 60.27a(b) ................................................. 13

Air Pollution Prevention & Control: List of

Categories of Stationary Sources, 36

Fed. Reg. 5,931 (Mar. 31, 1971)........................... 10

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg.

64,662 (Oct. 23, 2015) (“CPP Rule”)

(reproduced in Joint Appendix at JA2731668) ............................................................. passim

Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act, 74

Fed. Reg. 66,496 (Dec. 15, 2009) ......................... 11

xiii

National Emission Standards for

Hazardous Air Pollutants from Coal and

Oil-Fired Electric Utility Steam

Generating Units and Standards of

Performance for Fossil-Fuel-Fired

Electric Utility, Industrial-CommercialInstitutional, and Small IndustrialCommercial-Institutional Steam

Generating Units, 77 Fed. Reg. 9,304

(Feb. 16, 2012) ...................................................... 35

Repeal of the Clean Power Plan; Emission

Guidelines for Greenhouse Gas Emissions From Existing Electric Utility

Generating Units; Revisions to Emission

Guidelines Implementing Regulations,

84 Fed. Reg. 32,520 (July 8, 2019) (“ACE

Rule”) (reproduced in Joint Appendix at

JA1725-2030) ............................................... passim

Standards of Performance for Greenhouse

Gas Emissions From New, Modified, and

Reconstructed Stationary Sources:

Electric Utility Generating Units, 80

Fed. Reg. 64,510 (Oct. 23, 2015) .......................... 11

Standards of Performance for New and

Existing Stationary Sources: Electric

Utility Steam Generating Units, 70 Fed.

Reg. 28,606 (May 18, 2005) (“Clean Air

Mercury Rule”) ............................. 38, 39, 40, 41, 46

xiv

Standards of Performance for New

Stationary Sources and Emission

Guidelines for Existing Sources:

Municipal Waste Combustors, 60 Fed.

Reg. 65,387 (Dec. 19, 1995).................................. 46

Other Materials

EPA, 2020 Greenhouse Gas Emissions from

Large Facilities, https://www.epa.gov/

ghgreporting (Aug. 7, 2020) ................................. 10

EPA, NAAQS Table, https://www.epa.gov/

criteria-air-pollutants/naaqs-table (last

visited Jan. 14, 2022) ............................................. 8

EPA, Overview of Greenhouse Gases,

https://www.epa.gov/ghgemissions/overview-greenhouse-gases (last visited Jan.

14, 2022) ................................................................. 9

EPA, Sources of Greenhouse Gas Emissions, https://www.epa.gov/

ghgemissions/sources-greenhouse-gasemissions (last visited Jan. 14, 2022).................. 10

Intergovernmental Panel on Climate

Change, Climate Change 2021: The

Physical Science Basis (2021) ................................ 9

System, Merriam-Webster,

https://www.merriam-webster.com/

dictionary/system (last visited Jan. 14,

2022) ..................................................................... 28

U.S. Energy Info. Admin., FAQs: What is

U.S. electricity generation by energy

source? (last updated Nov. 2, 2021),

https://www.eia.gov/tools/faqs/faq.php?id

=427&t=3 .............................................................. 10

U.S. Global Change Res. Prog., Fourth National Climate Assessment (2017)......................... 9

INTRODUCTION

Section 111(d) of the Clean Air Act, 42 U.S.C.

§ 7411(d), creates a framework under which the Environmental Protection Agency (“EPA”) and States work

together to limit emissions of greenhouse gases and

certain other air pollutants emitted by categories of

existing stationary sources listed by EPA, including

fossil fuel-fired power plants.

Under that framework, States are responsible for

“establish[ing] standards of performance for any existing source” for such pollutants and “provid[ing] for

the implementation and enforcement of such standards.” 42 U.S.C. § 7411(d)(1). Those standards must

“reflect[] the degree of emission limitation achievable

through the application of the best system of emission

reduction [“BSER”] which,” taking into account cost

and other factors, EPA “determines has been adequately demonstrated.” § 7411(a)(1). EPA may

establish standards of performance if a State fails to

submit a satisfactory plan or to enforce its plan.

§ 7411(d)(2).

In 2019, EPA promulgated the Affordable Clean

Energy (“ACE”) Rule.1 The ACE Rule repealed a prior

rule issued in 2015, the Clean Power Plan (“CPP”)

Rule, which was stayed by this Court and never went

Repeal of the Clean Power Plan; Emission Guidelines for

Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing

Regulations, 84 Fed. Reg. 32,520 (July 8, 2019) (JA1725).

into effect.2 The CPP Rule would have prescribed

guidelines for carbon dioxide emissions for the source

category of fossil fuel-fired power plants.

The ACE Rule’s repeal of the CPP Rule was not attributed to a shift in policy or to revised scientific or

technical judgment, but instead relied on the view

that EPA was legally compelled to withdraw the CPP

Rule. JA1746. The CPP Rule had identified the “best

system of emission reduction [BSER]” for fossil fuelfired power plants as encompassing emissions trading

and other strategies that incentivize power producers

to scale up generation by cleaner natural gas-fired

and renewable sources, while reducing generation

from more carbon-intensive sources. The ACE Rule

concluded, however, that the statutory text of the

Clean Air Act unambiguously prohibits EPA from considering such means as part of the BSER for the

source category because it viewed the statute to limit

the BSER to considering only technologies and techniques that can be implemented at and to each

individual source. Indeed, the ACE Rule went further, prohibiting States themselves from allowing

producers and utilities such as the Power Company

Respondents the flexibility even to comply with standards of performance by obtaining emissions credits or

taking other actions not confined to measures “at and

to” an individual source. JA1893.

The Power Company Respondents here include

several of the nation’s largest public and private

2 Carbon Pollution Emission Guidelines for Existing Stationary

Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662

(Oct. 23, 2015) (JA273).

power companies. They collectively own or operate

nearly 75,000 megawatts of electric generating-capacity from coal, oil, natural gas, nuclear, wind, solar,

hydropower, geothermal and biofuel resources. They

have operations in 49 States and the District of Columbia, and collectively provide electricity service to

more than 20 million homes and businesses, amounting to a total service population of more than 40

million. The Power Company Respondents petitioned

for judicial review of the ACE Rule in the U.S. Court

of Appeals for the D.C. Circuit.

The court of appeals held that EPA erred in concluding that the Clean Air Act unambiguously limits

the agency’s determination of the BSER to only

measures that can be installed “at and to” each individual power plant. None of the seven merits briefs

for or supporting Petitioners identifies any statutory

text that could clearly limit the BSER to such sourcespecific measures. And for good reason—the statutory

text and structure do not support such a limitation.

To the contrary, the language of Sections 7411(a) and

7411(d) contrasts sharply with neighboring provisions

of the Clean Air Act—notably, with Section 7412,

which regulates stationary-source emissions of certain air pollutants listed as “hazardous”—that have

long been understood to require source-specific

measures. The language here also contrasts sharply

with other provisions of Section 7411 that specify that,

in circumstances not applicable here, EPA may prescribe a standard reflecting the “best technological

system of continuous emission reduction” § 7411(h)(i)

(emphasis added). An “at and to” limitation also

would undermine the Act’s purpose and fail to reflect

the reality of what systems of emission reduction are

“adequately demonstrated” in the market for electric

power. Electricity producers do not operate in isolation, but regularly work together with grid operators

to satisfy real-time consumer demand at the lowest

cost, shifting between producers at different times.

These cases do not require the Court to opine on

the legality of the CPP Rule or to demarcate the outer

bounds of EPA’s authority under Section 7411(d)—

questions on which the Power Company Respondents

take no position. EPA does not challenge the judgment below, and has indicated that it does not intend

to implement the CPP Rule (which is, in any event, a

nullity given the extent to which market participants

already have achieved the emission reduction that

Rule contemplated). The agency has not issued a new

rule or other agency action embodying a particular

view of the agency’s authority under Section 7411(d).

Indeed, there are, at a minimum, serious questions

about whether appellate standing remains because of

the lack of injury to Petitioners from the judgment below. Before it was repealed by the ACE Rule, the CPP

Rule was stayed and did not go into effect, and there

is no indication that it will be resurrected. The court

of appeals’ vacatur of the ACE Rule and remand to the

agency to reconsider its authority under Section

7411(d) did not ratify the CPP or require EPA to adopt

any view of its authority that would injure Petitioners. Even if these cases remain justiciable, affirmance

of the court of appeals’ judgment vacating the ACE

Rule and remanding it to the EPA is appropriate because the Rule had relied on the erroneous view that

the statute unambiguously limits the BSER to “at and

to” measures. See Negusie v. Holder, 555 U.S. 511,

522-23 (2009); SEC v. Chenery Corp., 318 U.S. 80, 95

(1943). Vacatur and remand is especially appropriate

because the agency does not view the ACE Rule interpretation as accurate, and it is considering anew its

responsibilities under Section 7411(d).

To affirm the judgment below, the Court need recognize only that Sections 7411(a) and 7411(d) do not

unambiguously restrict the BSER to “at and to”

measures at individual plants. The Power Company

Respondents urge the Court to reject Petitioners’ request that the Court issue an advisory opinion about

whether speculative abuses of power by an imagined

future EPA Administrator would fall within the powers Congress lawfully granted to the agency.

STATEMENT OF THE CASE

A. Statutory Framework

Electrification transformed American life by powering factories, lighting and cooling homes, and

enabling now-omnipresent electronic consumer appliances and entertainment devices. Generation of the

power that fueled that transformation—along with

the adoption of the automobile—also filled the country’s air with smog and other airborne pollutants.

In response to adverse public health and environmental consequences caused by these emissions,

Congress adopted and has repeatedly strengthened

the Clean Air Act “to protect and enhance the quality

of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of

its population.” 42 U.S.C. § 7401(b)(1); see also Clean

Air Act of 1963, Pub. L. 88-206, 77 Stat. 392; Air

Quality Act of 1967, Pub. L. 90-148, 81 Stat. 485;

Clean Air Amendments of 1970, Pub. L. 91-604, 84

Stat. 1676; Clean Air Act Amendments of 1977, Pub.

L. 95-95, 91 Stat. 685; Clean Air Act Amendments

of 1990, Pub. L. 101-549, 104 Stat. 2399.

The Act, one of the pillars of American environmental law, created “a comprehensive national

program that made the States and the Federal Government partners in the struggle against air

pollution.” Gen. Motors Corp. v. United States, 496

U.S. 530, 532 (1990).

The Clean Air Act provides for an interlocking set

of programs for controlling emission of air pollutants

through a range of regulatory authorities. Among

other things, the Act addresses airborne concentrations of “criteria” pollutants in 42 U.S.C. §§ 74087409; emissions by mobile sources such as motor vehicles and airplanes, as well as fuels and additives, in

§§ 7521-7590; and emissions by stationary sources of

certain “hazardous air pollutants” in § 7412.

The statute also addresses emissions by certain

listed categories of stationary sources (such as factories and power plants) in 42 U.S.C. § 7411, which is

the provision at issue here. Section 7411 “ensure[s]

that the Act achieves comprehensive pollution control

by guaranteeing that there are ‘no gaps in control activities pertaining to stationary source emissions that

pose any significant danger to public health or welfare.’” JA119 (quoting S. Rep. No. 91-1196, at 20

(1970)).

Under Section 7411, EPA must publish a list of

each category of stationary source that “causes, or

contributes significantly to, air pollution which may

reasonably be anticipated to endanger public health

or welfare.” 42 U.S.C. § 7411(b)(1)(A). For each listed

category of stationary source, Section 7411(b)(1)(B)

requires EPA to prescribe federal “standards of performance” for new sources. The statute defines

“standard of performance” as:

a standard for emissions of air pollutants

which reflects the degree of emission limitation

achievable

through

the

application of the best system of emission reduction [“BSER”] which (taking

into account the cost of achieving such

reduction and any nonair quality health

and environmental impact and energy

requirements) the [EPA] determines has

been adequately demonstrated.

§ 7411(a)(1).

For such new stationary sources, EPA may enforce

such standards of performance or delegate its authority to a State that has developed and submitted an

adequate procedure to implement and enforce the determined standards. § 7411(c)(1), (2).

For existing stationary sources, Section 7411(d) establishes a cooperative-federalism approach.

directs EPA to prescribe regulations for a “procedure

similar to that provided by section 7410” (regarding

ambient air quality standards) for States to submit

plans for standards of performance for any existing

source for any air pollutant (other than “criteria” pollutants addressed under Sections 7408-74103 and

“hazardous air pollutants” listed under Section 74124). Under this framework, EPA issues

emissions guidelines, 40 C.F.R. § 60.21(e), reflecting

the emission reduction achievable for the particular

category of stationary source through application of

the BSER that the agency finds has “been adequately

demonstrated,” 42 U.S.C. § 7411(a)(1). States then

issue standards of performance for each stationary

source within their jurisdiction and may, when applying those standards to particular sources, “take into

consideration, among other factors, the remaining

In 42 U.S.C. § 7408(a), Congress provided for EPA and the

States to cooperate in addressing concentrations in ambient air

of “criteria” pollutants that “cause or contribute to air pollution

which may reasonably be anticipated to endanger public health

or welfare.” Section 7409 tasks EPA with prescribing a national

ambient air quality standard (a “NAAQS”) for each of those “criteria” pollutants and vests States with primary responsibility for

developing State Implementation Plans, or “SIPs,” for achieving

the standards. §§ 7409(a), 7410(a); see Union Elec. Co. v. EPA,

427 U.S. 246, 249 (1976). EPA is charged with reviewing and if

necessary revising the SIPs. 42 U.S.C. § 7410(c), (o). EPA has

prescribed NAAQS for six “criteria” pollutants: carbon monoxide,

lead, nitrogen dioxide, ozone, particle pollution, and sulfur dioxide.

EPA, NAAQS Table, https://www.epa.gov/criteria-airpollutants/naaqs-table (last visited Jan. 14, 2022).

Section 7412 requires EPA to identify “hazardous air pollutants”—pollutants that “present, or may present, through

inhalation or other routes of exposure, a threat of adverse human

health effects . . . or adverse environmental effects,” 42 U.S.C.

§ 7412(b)(2)—and specifically lists more than 180 such pollutants. Section 7412 further requires EPA to publish a list of “all

categories and subcategories of major sources and area sources”

of the listed hazardous air pollutants and “establish emission

standards” for each. § 7412(c)(1), (2).

useful life of the existing source to which [the] standard applies.” § 7411(d)(1). EPA regulations must

provide for implementation and enforcement of the

standards

performance

the

States.

§ 7411(d)(1)(B). If a State fails to submit a satisfactory plan or to enforce its plan for existing stationary

sources, EPA may prescribe and enforce a federal plan

for such State. § 7411(d)(2).

B. Factual Background

Due in large part to human activities, notably the

combustion of fossil fuels, atmospheric concentrations

of greenhouse gases such as carbon dioxide and methane have increased at unprecedented rates, and are

now higher than Earth has experienced in several million years. These particular gases are referred to as

“greenhouse gases” because they trap heat in the atmosphere and warm the planet, akin to a greenhouse

structure warming the air and plants within. EPA,

Overview of Greenhouse Gases, https://www.epa.gov/

ghgemissions/overview-greenhouse-gases (last visited

Jan. 14, 2022). An overwhelming scientific consensus

recognizes that, as a result, global temperatures are

rising at unprecedented rates. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 504-05 (2007);

Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis at

SPM-7 (2021); U.S. Global Change Res. Prog., Fourth

National Climate Assessment 35-36 (2017).

Any effective approach for curtailing greenhousegas emissions requires curbing the volume of emissions produced by fossil fuel-fired power plants, such

as coal-fired and gas-fired plants. These plants play a

significant role in powering American homes, businesses, factories, and infrastructure. They produce

approximately 60 percent of the country’s electric

power, with nuclear and renewable energy sources responsible for the balance. U.S. Energy Info. Admin.,

FAQs: What is U.S. electricity generation by energy

source?

(last

updated

Nov.

2021),

https://www.eia.gov/tools/faqs/faq.php?id=427

&t=3.

Fossil fuel-fired power plants are “far and away

the largest stationary source of greenhouse gases,”

JA85, numbering 18 of the 20 largest single emitters

of carbon dioxide in the country, EPA, 2020 Greenhouse Gas Emissions from Large Facilities,

https://www.epa.gov/ghgreporting (Aug. 7, 2020).

They are responsible for one-quarter of all greenhouse

gases emitted in the United States. EPA, Sources of

Greenhouse Gas Emissions https://www.epa.gov/

ghgemissions/sources-greenhouse-gas-emissions (last

visited Jan. 14, 2022). Fossil fuel-fired power plants

have long been listed by EPA under Section 7411 as a

category of stationary sources that cause, or contribute significantly to, air pollution. See Air Pollution

Prevention & Control: List of Categories of Stationary

Sources, 36 Fed. Reg. 5,931 (Mar. 31, 1971).

C. Procedural History

1. Regulation Under Section 7411 of

Greenhouse Gases Emitted by Stationary Sources

This Court held in Massachusetts v. EPA that

greenhouse gases are “air pollutant[s]” for purposes of

provisions of the Clean Air Act governing emissions

by motor vehicles. 549 U.S. at 528. EPA subsequently

found that six greenhouse gases endanger public

health and the public welfare.5 This Court then concluded in American Electric Power Co. v. Connecticut,

564 U.S. 410, 424 (2011) (“AEP”), that greenhouse-gas

emissions constitute statutory “air pollutant[s]” not

only when emitted by motor vehicles, but also when

emitted by stationary sources. 564 U.S. at 424-25.

The Court concluded that it was “plain” that Section 7411 “‘speaks directly’ to the emissions of carbon

dioxide from [power] plants.” Id. at 424.

2. Promulgation of the Clean Power Plan

(“CPP”) Rule

In October 2015, EPA established standards of

performance for carbon dioxide emissions from new

fossil fuel-fired power plants, as a category of “stationary sources” under 42 U.S.C. § 7411(b).6 In that

rulemaking, EPA determined, for example, that by deploying new technology (including for capturing and

storing carbon dioxide), such power plants could, at

reasonable cost, limit emissions to 1,400 lbs. of carbon

dioxide per megawatt/hour. 80 Fed. Reg. at 64,512.

EPA’s new-source rule took effect and is not at issue

here.

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74

Fed. Reg. 66,496 (Dec. 15, 2009).

6 Standards of Performance for Greenhouse Gas Emissions From

New, Modified, and Reconstructed Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg. 64,510, 64,527, 64,529-31

(Oct. 23, 2015).

At the same time, EPA issued the Clean Power

Plan (“CPP”) Rule, which would have provided carbon

dioxide emission guidelines for State standards of performance for the category of existing fossil fuel-fired

power plants. See JA273. EPA explained that the

CPP Rule reflected the fact that carbon dioxide diffuses throughout the atmosphere and lingers for

decades, and the fact that power plants are connected

to a shared grid, such that “[g]eneration from one generating unit can be and routinely is substituted for

generation from another generating unit in order to

keep the complex machine [of the grid] operating

while observing the machine’s technical, environmental, and other constraints and managing its costs.”

JA567.

As part of the CPP Rule, EPA determined that the

“best system of emission reduction [BSER] for carbon

dioxide from the category of existing fossil fuel-fired

electric generating units combines three features: “operational improvements and equipment upgrades

that such plants may take to improve heat rate;” increasing lower-emitting natural-gas generation

substituted for higher-emitting coal-fired steam

plants; and increasing zero-emitting renewable generation substituted for fossil fuel-fired plants—all three

of which were “consistent with current trends in the

electricity sector.” JA491-92. EPA determined that if

existing coal and gas plants were to use this best system involving these three features, they could, at

reasonable cost, reduce by 2030 their carbon dioxide

emissions to 1305 pounds and 771 pounds, respectively, per megawatt-hour. JA643.

EPA noted that the features underlying its BSER

are “available to all affected” units through direct investment, operational shifts, or emissions trading, but

that also “there are numerous other measures available to reduce CO2 emissions from affected” units. The

EPA specified that its “determination of the BSER

does not necessitate the use of the three building

blocks to their maximum extent, or even at all.”

JA299-300 (emphasis added).

The CPP Rule never took effect because this Court

stayed its implementation pending the D.C. Circuit’s

review. West Virginia v. EPA, 136 S. Ct. 1000 (2016).

The D.C. Circuit held the litigation in abeyance while

the agency reconsidered its position, then dismissed

the petitions as moot in light of the agency’s repeal in

2019 of the CPP Rule. JA88.

3. Promulgation of the Affordable Clean

Energy (“ACE”) Rule

At the same time that the agency repealed the CPP

Rule, the agency issued a new BSER for carbon dioxide from the category of existing fossil fuel-fired

electricity generating units, and promulgated both

agency actions through the Affordable Clean Energy

(“ACE”) Rule. See JA1725.7

7 The ACE Rule also amended Section 7411(d)’s implementing

regulations to delay significantly the time before existing sources

became subject to new emissions controls. E.g., JA1936; compare

40 C.F.R. § 60.23(a)(1), with § 60.23a(a)(1), and § 60.27(b), with

§ 60.27a(b). The D.C. Circuit concluded that this aspect of the

ACE Rule was arbitrary and capricious, JA72, a conclusion that

Petitioners have not challenged in this Court.

The ACE Rule based its repeal of the CPP Rule

solely on its reading of the Clean Air Act as forbidding

the CPP Rule. The ACE Rule read Section 7411 to

“unambiguously limit[] the [BSER] to those systems

that can be put into operation at a building, structure,

facility, or installation,” such as “add-on controls” and

“inherently lower emitting processes/practices/designs.”

JA1746.

Because the CPP Rule had

contemplated the use of generation-shifting measures

that in the agency’s view could not be implemented at

specific sources, the ACE Rule concluded that it was

“obliged to repeal the [CPP Rule] to avoid acting unlawfully.” JA1786.

The ACE Rule’s new BSER for carbon dioxide from

coal-fired power plants8 included seven different

“technologies and techniques” for achieving minor increases in the efficiency with which such plants

convert coal into electric power. JA1803-07 & tbl. 1.

The Rule found that each of these technologies and

techniques “c[ould] be applied at and to certain existing coal-fired [power plants].” JA1787 (emphasis

added). Although the ACE Rule instructed States to

“utilize” these efficiency ranges in preparing standards of performance, it expressly authorized States to

submit standards of performance more lenient than

these ranges. JA1807 tbl. 1.

The ACE Rule excluded from consideration in the

determination of the BSER other means of reducing

emissions. For example, the agency rejected co-firing

The ACE Rule declined to identify any BSER for gas-fired

plants. JA1791.

biofuels, which can be carbon-neutral because it releases carbon that was trapped when the biofuels

were grown, rather than carbon from subterranean

fossil-fuel sources. The ACE Rule determined that

would reduce emissions generally, but not at the level

of specific power plants. JA1849-53. And the Rule rejected co-firing gas along with coal. The Rule opined

that such an approach was not already in widespread

use and was not, in the agency’s view, “adequately

demonstrated.” JA1840-44. And the Rule rejected

carbon capture and storage technology because,

among other things, it deemed the technology too expensive for use at existing sources. JA1853-65.

The ACE Rule extended its narrow reading of the

statute to restrict the means that States in their own

plans can allow power plants to use to meet standards

of performance. The Rule did not express a view as to

whether States could allow power plants to meet

standards through gas co-firing or carbon capture and

storage. JA1893. It forbade States, however, from allowing power plants to meet the standards through

emissions trading or through biofuel co-firing.

JA1895-1904.

4. Lower Court Proceedings

Several petitions for judicial review of the ACE

Rule were filed in the D.C. Circuit, including by the

Power Company Respondents, numerous States, and

various environmental groups, as well as by the coal

industry, on various grounds. The court of appeals

consolidated the petitions and ultimately vacated the

ACE Rule. JA213-15.

The court of appeals ruled that the ACE Rule could

not stand because it “rested critically on a mistaken

reading of the Clean Air Act.” JA215. Nothing in the

text, structure, history, or purpose of the Act plainly

or unambiguously restricts the EPA to considering

only measures that can be imposed “at and to” individual plants when the agency determines the BSER

for carbon dioxide that has been adequately demonstrated for the category of existing fossil fuel-fired

power plants. E.g., JA104. The court of appeals recognized that EPA has “ample discretion” to identify

BSERs for purposes of Section 7411, but rejected

EPA’s attempt to “shirk its responsibility by imagining new limitations that the plain language of the

statute does not clearly require.” JA118. The court of

appeals also rejected, as ungrounded in Section 7411,

the ACE Rule’s attempt to restrict States, in devising

standards of performance and identifying means for

power plants to comply with State implementation

plans, to allowing plants to use only measures applied

“at and to” individual sources.

EPA filed an unopposed motion with the court of

appeals to withhold issuance of the mandate with respect to the court’s vacatur of the repeal of the CPP

Rule. The court granted that motion, meaning that

the CPP Rule did not go into effect. JA270-72. Accordingly, neither the now-vacated ACE Rule nor the

CPP Rule is in effect.

Two coal-mining companies (Nos. 20-1531 and 201778) and numerous States (Nos. 20-1530 and 201780) petitioned for writs of certiorari. The Court

granted the petitions, except insofar as Petitioner

Westmoreland Mining Holdings LLC contested

whether coal-fired power plants are subject to regulation under Section 7411.

SUMMARY OF ARGUMENT

I. The major questions doctrine is inapposite to

these cases because there is no agency action in effect,

or proposed to go into effect, that presents to the Court

a statutory interpretation that raises any separation

of powers concerns.

Application of the major questions doctrine in such

circumstances would expand the doctrine far beyond

this Court’s precedents. Instead of reviewing an existing agency interpretation, it would require federal

courts to issue advisory opinions about the most

farfetched way an agency might try to misuse a particular statutory interpretation that it might adopt.

Indeed, the Affordable Clean Energy (“ACE”) Rule

that was vacated by the judgment below was based on

an agency interpretation that the statute unambiguously limits the agency’s authority. The court of

appeals rejected the agency’s reading and remanded

to the agency for further consideration without ratifying any expansive agency authority to make decisions

of vast economic and political significance.

The provisions of the Clean Air Act at issue here,

42 U.S.C. § 7411(a) and § 7411(d), do not, on their face,

raise separation of powers concerns implicating the

major questions doctrine. They expressly authorize

the EPA to set the “best system of emission reduction”

(BSER)—a determination for which the agency has

extensive expertise. The BSER is then to be reflected

in standards of performance developed by the States.

And States retain broad authority and flexibility under Section 7411(d) to regulate existing sources by

establishing and enforcing the standards of performance, leaving the agency no room beyond what

Congress explicitly authorized.

II. The court of appeals correctly held that the

Clean Air Act does not require the ACE Rule’s interpretation. The statute does not unambiguously

require that EPA, in determining the BSER that has

been adequately demonstrated for a particular source

category, consider only measures that are applied “at

and to” an individual source.

The plain language of Section 7411 places no such

limitation on the means EPA may consider in determining the BSER. Section 7411(a)’s requirement that

EPA determine the best “system” evinces no restriction to “at and to” measures. The ordinary

meaning of “system” is not so limited, and neighboring

provisions in Sections 7411(h) and 7412(d) confirm

that Congress knew how to include more limiting provisions through language used there, which it did not

use in Section 7411(a).

A limitation of the BSER to “at and to” measures

would be at odds with the statute’s textual requirement that EPA determine the BSER that has been

“adequately demonstrated.” The power sector is

unique because its responsibility for delivering its service to the public—a constant supply of electricity—

depends on all producers orchestrating their behavior

to balance supply and demand on an instantaneous

basis, given economic, environmental, and transmission constraints.

Because of the uniquely

interconnected nature of the electricity grid, utilities,

many States, and EPA have all recognized that the

“best system of emission reduction” for the listed

source category of fossil fuel-fired power plants includes the means used at a systemic level and is not

restricted to measures “at and to” each individual

plant operated in isolation from one another. The

ACE Rule’s contrary reading also unduly restricts the

ability of the States and power plants to meet standards of performance though cost-effective means long

demonstrated for the category of fossil fuel-fired

power plants.

III. Sections 7411(a) and 7411(d) do not violate the

nondelegation doctrine. They detail and limit EPA’s

authority over emissions by listed categories of existing stationary sources. Those restraints provide

intelligible principles that render the statute constitutional under any formulation of the nondelegation

doctrine. This Court need not adopt an artificially

narrow construction of the statute to avoid hypothetical constitutional problems that could result from an

implausibly broad construction that the court of appeals did not adopt and EPA is not asserting.

ARGUMENT

I. THE MAJOR QUESTIONS DOCTRINE IS INAPPOSITE

IN THE CIRCUMSTANCES OF THESE CASES.

A. Application of the Doctrine Here

Would Be Based on Speculation and

Yield an Advisory Opinion Because

There Is No Agency Action in Effect or

Proposed to Go Into Effect That Adopts

Any Purportedly Overbroad Statutory

Interpretation.

Petitioners ask this Court to transform the major

questions doctrine into a vehicle for federal courts to

issue advisory opinions based on abstract speculation

about what agencies might do in the future. Petitioners’ approach would invite courts to opine on the most

farfetched way an agency might try to misuse a particular statutory interpretation that it might adopt. It

is a recipe for courts to get bogged down in abstruse

hypothetical concerns, which, in these cases, might

still be alleviated through agency action on the remand ordered by the judgment under review.

Indeed, the judgment under review presents the

Court with only vacatur and remand of an agency action (the ACE Rule) because that action was based on

an erroneous interpretation that the statute unambiguously limits the agency’s authority in certain ways.

The judgment did not ratify any expansive agency authority to make decisions of vast economic and

political significance. The ruling does not present any

ripe separation of powers concern.

B. Application of the Doctrine Absent an

Agency Action Claiming Overbroad Authority Would Depart from Precedent

and Pose Administrability Problems.

This Court applies the major questions doctrine

only when it reviews an agency’s interpretation of a

statute that is reflected in a broad exercise of agency

authority. See King v. Burwell, 576 U.S. 473, 485-86

(2015). The Court has thus held in a series of exceptional cases that Congress had not, through “vague

terms or ancillary provisions,” conferred on an agency

the authority to “alter the fundamental details of a

regulatory scheme.”

Whitman v. Am. Trucking

Assns., Inc., 531 U. S. 457, 468 (2001).

Critically, in these cases the Court reviewed actual

action taken by the respective agency that was challenged as in excess of the agency’s claim of authority.

For example, in King, the Court reviewed an Internal

Revenue Service regulation authorizing availability of

billions of dollars in tax credits on federal exchanges

affecting health insurance under the Affordable Care

Act. 576 U.S. at 485-86. In other cases, the Court

similarly reviewed actual agency action that relied on

the agency’s claim of particular statutory authority.

See NFIB v. Dep’t of Labor, No. 21A244, 2022 WL

120952, at *1, *3 (U.S. Jan. 13, 2022) (per curiam) (reviewing

Occupational

Safety

and

Health

Administration regulation mandating vaccination);

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485, 2489 (2021) (per curiam) (reviewing

Centers for Disease Control and Prevention regulation promulgating and extending Congress’s eviction

moratorium); Util. Air Regul. Grp. v. EPA, 573 U.S.

302, 323-24 (2014) (reviewing EPA adoption of its own

Tailoring Rule thresholds for permitting obligations);

Gonzales v. Oregon, 546 U.S. 243, 265-69 (2006) (reviewing Department of Justice Interpretative Rule

declaring use of controlled substances for physicianassisted suicide a crime); Whitman, 531 U.S. at 46871 (reviewing EPA published implementation policy

determining whether implementation costs should

moderate national air quality standards); Food &

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

529 U.S. 120, 159-61 (2000) (reviewing Food and Drug

Administration regulation of the tobacco industry);

MCI Telecommc’ns Corp. v. Am. Tel. & Tel. Co., 512

U.S. 218, 221, 231-32 (1994) (reviewing Federal Communications Commission’s Fourth Report and Order

exempting tariffs from nondominant carriers).

Petitioners seek to apply the major questions doctrine in a far more expansive way. Rather than

considering whether an agency’s actual exercise of

power falls within the authority Congress vested in

the agency, Petitioners ask this Court to speculate

and indulge implausible imagining about how an

agency might try to abuse its authority at some unknown time in the future.

Application of the major questions doctrine in this

manner would expand that doctrine far beyond this

Court’s precedents. It would conflict with this Court’s

longstanding principle of “avoid[ing] premature adjudication, from entangling [itself] in abstract

disagreements over administrative policies, and also

to protect the agencies from judicial interference until

an administrative decision has been formalized and

its effects felt in a concrete way by the challenging

parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 14849 (1967). Even when final agency action has been

taken, the Court refrains from reviewing an agency

rule if “further factual development would significantly advance [the Court’s] ability to deal with the

legal issues presented.” Nat’l Park Hospitality Ass’n

v. Dep’t of Interior, 538 U.S. 803, 812 (2003).

Application of the major questions doctrine in

these circumstances would create the sort of administrability problems that have bedeviled the Court in

other contexts. For example, this Court has repeatedly grappled with the inartfully worded Armed

Career Criminal Act, which enlists federal courts to

determine whether various state criminal laws

“ha[ve] as an element the use, attempted use, or

threatened use of physical force against the person of

another” or “otherwise involve[] conduct that presents

a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B). This Court has rejected as

“indetermina[te],” “unpredictable,” and “arbitrary”

speculation about “the hypothetical risk posed by an

abstract generic version of [an] offense” under the

ACCA and similar statutes. Welch v. United States,

578 U.S. 120, 124-25 (2016). The Court should avoid

adopting another doctrine that would “tie[] the judicial assessment of risk to a judicially imagined”

agency interpretation, “not to real-world facts or statutory elements.” Johnson v. United States, 576 U.S.

591, 597 (2015).

C. Sections 7411(a) and 7411(d) Do Not, on

Their Face, Implicate the Major Questions Doctrine.

Sections 7411(a) and 7411(d) do not, on their face,

raise separation of powers concerns implicating the

major questions doctrine. They expressly authorize

implementation of a statute in a particular manner by

EPA, an agency with extensive expertise in that area.

And they direct EPA to answer the specific question

of what is the BSER that has been adequately demonstrated for a given category of existing stationary

sources, so that the degree of achievable emission limitation can be determined and reflected in standards

of performance established by the States. This specific authority “fits neatly within the language of the

statute.” See Biden v. Missouri, No. 21A240, 2022 WL

120950, at *2–3 (U.S. Jan. 13, 2022) (per curiam)

(staying injunctions against Department of Health

and Human Services’ vaccination mandate for health

workers at facilities receiving Medicare and Medicaid

funding because “the Secretary’s rule falls within the

authorities that Congress has conferred upon him”).

Section 7411 is also clear about specific limits on

EPA’s authority. The EPA’s BSER must “take[] into

account the cost of achieving such reduction and any

nonair quality health and environmental impact and

energy requirements.” § 7411(a)(1). EPA determines

only the BSER, and it is the States that must then develop standards of performance for existing sources

that reflect the degree of emission limitation achievable through application of the BSER. § 7411(d)(1).

EPA does not directly regulate existing sources. The

States retain broad authority and flexibility under

Section 7411(d) to impose and enforce standards of

performance for the existing sources within their respective boundaries, leaving the agency no room

beyond what Congress explicitly authorized.

States are authorized to apply standards of performance to individual existing plants based on EPA’s

emission guidelines; they need not use the means considered by EPA in determining the BSER. Section

7411 states that EPA “shall prescribe regulations

which shall establish a procedure . . . under which

each State shall submit to the [agency] a plan which

(A) establishes standards of performance for any existing source for any air pollutant . . . and (B) provides

for the implementation and enforcement of such

standards of performance.” § 7411(d)(1). Only if a

State fails to submit a satisfactory plan or to enforce

it does EPA fill that role. § 7411(d)(2). Such a framework does not impermissibly override state choices, as

this Court has observed in interpreting other similar

provisions of the Clean Air Act. See Train v. Nat. Res.

Def. Council, Inc., 421 U.S. 60, 79, (1975) (Clean Air

Act “gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they

are part of a plan which satisfies the standards of [42

U.S.C. § 7410]”); see also Massachusetts v. EPA, 549

U.S. at 530-31 (rejecting major-questions challenge to

EPA’s “statutory authority to regulate the emission of

[greenhouse] gases from new motor vehicles” because

“greenhouse gases fit well within the Clean Air Act’s

capacious definition of ‘air pollutant’”; “EPA would

only regulate emissions” consistent with technological

constraints; and no congressional action “conflict[ed]

in any way” with that authority).

D. The Emission Reduction Envisioned by

the CPP Rule Occurred a Decade Early

Without the Rule Taking Effect, Defeating Any Major Questions Concern.

There is no sudden transformation of agency action or exceptional economic impact here beyond

statutory authority to implicate the major questions

doctrine, and certainly not before the EPA has revisited on remand its authority under the statute.

Until the adoption of the ACE Rule, the EPA had

consistently and “routinely,” under Administrations

of both political parties, concluded that it has the authority under the statute, and exercised that

authority, to determine the BSER that is adequately

demonstrated under Sections 7411(a) and 7411(d) for

each listed category of existing sources and that, in

making that determination, could consider means

other than installation of control technology “at and

to” each individual source. See Biden v. Missouri,

2022 WL 120950, at *4; infra Section II.E.

Moreover, the CPP Rule would not, in fact, have

had the profound impact or costs imagined by Petitioners. See West Virginia Br. 20 (“Implementing

even the CPP’s vision would have cost hundreds of billions of dollars”); North Am. Coal Corp. Br. 29 (“the

CPP [Rule] was projected to ‘cost billions of dollars

and eliminate thousands of jobs’”); Westmoreland Br.

20, 30 (“the CPP [Rule] would impose billions in price

increases” and was projected to result in “billions in

compliance costs . . . and hundreds of billions in foregone economic growth”). The ACE Rule explained

that the reduction the CPP Rule would have required

to occur by 2030 had occurred on a nationwide basis a

decade earlier, even though the CPP Rule never went

into effect. The ACE Rule concluded that repealing

the CPP Rule resulted in $0 of savings for industry

and no greater emissions, such that “there is likely to

be no difference between a world where the CPP

[Rule] is implemented and one where it is not.”

JA1921. Far from being radically transformative, the

CPP Rule would have required no more than what occurred in the absence of federal regulation.

Petitioners’ exaggerations of its drastic consequences

and costs are without merit.

II. THE CLEAN AIR ACT DOES NOT UNAMBIGUOUSLY

REQUIRE THAT, IN DETERMINING THE BSER,

EPA CONSIDER ONLY MEASURES APPLIED “AT

AND TO” AN INDIVIDUAL PLANT.

The ACE Rule’s interpretation of Section 7411 is

contrary to the text, structure, and purpose of the

statute. Petitioners have identified nothing in any of

those aspects of the statute that could clearly limit the

BSER to only measures that can be implemented “at

and to” an individual source.

A. The Statute’s Use of “System” in

Section 7411 Demonstrates That EPA’s

BSER Determination Is Not Limited to

Measures “at and to” an Individual

Plant.

1. Congress used the term “system” in Section

7411(a) to direct EPA to determine the “best system of

emission reduction [BSER]” that is adequately

demonstrated for each category of stationary sources

that EPA lists. Congress then provided that, in light

of that “best system,” the standards of performance

must reflect the emission reduction that is achievable

through application of the BSER. Thus, the best system must be determined to identify the rate of

achievable emission reduction, but it does not limit

the means that can be considered in determining

BSER or that can be used by States and power plants

to meet the standard of performance set by the States.

EPA identifies the best system by considering systems that use various means to reduce emissions for

the relevant category of stationary sources, here fossil

fuel-fired plants. After considering those systems that

have been adequately demonstrated for the source

category, EPA determines the best of those systems.

The statute does not define the term “system,” so

it is interpreted according to its ordinary meaning.

See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227

(2014). As the EPA has previously concluded, the ordinary meaning of “system” is “a set of things or parts

forming a complex whole; a set of principles or procedures according to which something is done; an

organized scheme or method; and a group of interacting, interrelated, or interdependent elements.” JA273,

JA542-43 & n.314 (citing, inter alia, Oxford Dictionary of English (3d ed. 2010)); see also System,

Merriam-Webster,

https://www.merriam-webster

.com/dictionary/system (last visited Jan. 14, 2022) (defining “system” as “a regularly interacting or

interdependent group of items forming a unified

whole”).

The ordinary meaning of “system” in BSER in Section 7411(a) thus does not contain any limitation of

systems that are “at and to” an individual source. Indeed, the ordinary meaning of system wholly supports

the methodology of the CPP Rule wherein the agency

identified three elements that would be part of a best

system, which would interact and interrelate. Regardless of whether there would be debate about the

BSER determination, there is nothing in the statute

to limit the best system or the elements therein to

measures “at and to” an individual plant.

2. The ACE Rule stripped the term “system” of

substance. Ignoring a fundamental canon of statutory

construction, the ACE Rule asserted that the dictionary definition of the term “system” does not matter,

but instead purported to rely on the “permissible

bounds of the legal meaning of the word.” JA1764.

The ACE Rule concluded that “system” cannot be read

to encompass “any ‘set of measures’ that would—

through some chain of causation—lead to a reduction

in emissions,” because, “on its own,” that could lead to

“unbounded discretion” for EPA. Id. The ACE Rule’s

misunderstanding of the statute was apparent when

it relied on far-fetched suggestions, including that, unless further cabined, the term “system” could allow

EPA to impose “minimum wage requirements.” Section 7411 places numerous limits on agency authority,

not to mention, of course, limits on the agency’s determination of the BSER imposed by the Clean Air Act’s

prohibition on arbitrary or capricious rulemaking.

See 42 U.S.C. § 7607(d)(9).

And contrary to Petitioner West Virginia’s suggestion that the court of appeals did not consider the

context of the term “system,” the court carefully considered the context surrounding the term in Section

7411(a), including the requirement for a “best” system

of emission reduction, which the court of appeals reasoned “plainly places a high priority on efficiently and

effectively reducing emissions.” JA109; West Virginia

Br. 36-37.

3. Section 7411(a)’s use of the word “system” is

also informed by the text and structure of other provisions of the statute. They confirm that best “system”

as used in Section 7411(a) is not limited to “at and to”

measures.

a. For example, in 1977, Congress amended Section 7411 to limit EPA’s authority to set standards of

performance for new sources (not existing sources) to

the degree achievable through application of the “best

technological system of continuous emission reduction.” Pub. L. No. 95-95, § 109, 91 Stat. at 699-700

(amending Section 111(a)(1) of the Clean Air Act, codified at 42 U.S.C. § 7411(a)(1) (1982)) (emphasis

added). The addition of the term “technological” and

Congress’s definition of that phrase evidence a different type of system.9 That is the type of terminology

that Congress could have used in Section 7411(a)’s reference to “best system of emission reduction,” but did

not, if it had wanted to limit the BSER to only certain

9 Congress defines “technological system of continuous emission

reduction” to mean: “(A) a technological process for production

or operation by any source which is inherently low-polluting or

nonpolluting, or (B) a technological system for continuous reduction of the pollution generated by a source before such pollution

is emitted into the ambient air, including precombustion cleaning or treatment of fuels” 42 U.S.C. § 7411(a)(7).

measures that focused more on technology applied to

a particular plant.

Moreover, at that same time, Congress also

amended Section 111 of the Act to require that new

sources (not existing sources) demonstrate that such a

“technological system of continuous emission reduction” “which is to be used at such source” will enable

the new source to comply with the standards of performance. Pub. L. No. 95-95, § 109(e), 91 Stat. at 701

(adding Section 111((j) to the Clean Air Act) (emphasis

added). Congress’s reference to the technological system as a system that “is to be used at such source”

finds no parallel in the text of Sections 7411(a) and

7411(d) relating to the BSER that EPA determines for

existing sources, which is then reflected in State

standards of performance. “System” as used in BSER

in Section 7411(a) is broader than “technological system” and contains no limitation that it be only a

measure installed “at such source.”

Congress subsequently repealed these limitations

for new sources.10 Those limitations demonstrate,

however, that when Congress wants to limit EPA’s authority with respect to emission reduction systems—

e.g., to limit these to “technological” systems, or by requiring sources to comply with applicable standards

10 See Pub. L. No. 101-549, § 403(a), 104 Stat. at 2631 (adopting

the current definition of “standard of performance” for new

sources as well as existing sources); Safe Drinking Water

Amendments of 1977, Pub. L. No. 95-190, § 14(8), 91 Stat. 1393,

1399 (striking subsection (j) and redesignating subsequent subsections).

of performance through utilization of the system “at

such source”—it knows how to do so.

Indeed, Congress has maintained the possible use

of a “technological system of continuous emission reduction” in circumstances where EPA determines it is

“not feasible to prescribe or enforce a standard of performance.”

42 U.S.C. § 7411(h)(1).

Such

circumstances include where “the application of measurement methodology to a particular class of sources

is not practicable due to technological or economic limitations.” § 7411(h)(2). In such circumstances, EPA

“may instead promulgate a design, equipment, work

practice, or operational standard, or combination

thereof, which reflects the best technological system

of continuous emission reduction” which has been adequately demonstrated.

§ 7411(h)(1).

Congress

specified that if EPA “promulgates a design or equipment standard under this subsection,” it “shall

include as part of such standard such requirements as

will assure the proper operation and maintenance of

any such element of design or equipment.” Id.

The BSER that EPA determines generally for existing sources under Sections 7411(a) and 7411(d)

contains no such directives. And Congress was explicit in the limited nature of Section 7411(h). That

provision specifies that any design, equipment or the

like under that subsection shall be treated as a standard of performance for purposes of the provisions of

the Clean Air Act “other than the provisions of subsection (a) and this subsection.” § 7411(h)(5) (emphasis

added). And in Section 7411(b)(5), Congress provided

that “[e]xcept as otherwise authorized under subsection (h), nothing in this section shall be construed to

require, or to authorize the Administrator to require,

any new or modified source to install and operate any

particular technological system of continuous emission reduction to comply with any new source

standard of performance.” Congress knew how to

make clear where standards of performance must be

met through technological systems installed at the

source and how to ensure that they would not mandate use of any particular technological system.

EPA’s determination of the BSER in Sections 7411(a)

and 7411(d) contains no similar limitations.

The meaning of best “system” in Section 7411(a)(1) also is informed by the language

Congress used in Section 7412(d) with regard to emissions of certain air pollutants that are specifically

listed as “hazardous.” The text of Section 7412(d) includes provisions for source-specific measures,

confirming that the BSER that EPA determines for

existing sources under Sections 7411(a) and 7411(d),

which use different text, does not so provide.

Section 7412(d) requires that EPA “promulgate

regulations establishing emission standards” for the

listed sources of hazardous air pollutants. Congress

was explicit that, for such hazardous pollutants, those

emission standards “shall require the maximum degree of reduction in emissions” that is achievable

“through application of measures, processes, methods,

systems or techniques, including, but not limited to,”

a list of specific measures. 42 U.S.C. § 7412(d)(2).

Thus, unlike Section 7411(a), Section 7412(d) focuses not on what is achievable through application of

a “best system” that EPA identifies, but rather requires EPA to establish what are known as

“maximum achievable control technology” standards

based on application of a range of means. And it includes in the list “systems” in addition to “measures,

processes, methods, . . . or techniques,” confirming

that “systems” are not limited to certain measures or

techniques. 42 U.S.C. § 7412(d)(2).

Moreover, in the list of illustrative “measures” that

Congress provides, 42 U.S.C. § 7412(d)(2)(A)-(E), Congress included the type of terminology that it could

have used in Section 7411(a) (but did not) had it

wanted to limit the BSER to measures “at and to” an

individual plant. For example, Section 7412(d) expressly encompasses measures that “collect, capture

or treat such pollutants when released from a process,

stack, storage or fugitive emissions point.”

§ 7412(d)(2)(C) (emphasis added).11 By contrast, Section 7411(a) includes no such language that could

11 The illustrative list of measures is broad:

“measures which—

(A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or

other modifications,

(B) enclose systems or processes to eliminate emissions,

a process, stack, storage or fugitive emissions point,

(D) are design, equipment, work practice, or operational standards (including requirements for operator training or

certification) as provided in subsection (h), or

(E) are a combination of the above.”

42 U.S.C. § 7412(d)(2)(A)-(E).

limit the BSER to consideration of only such

measures.

The measures and methods of emission reduction

authorized by Section 7412(d) are restricted—as they

necessarily must be due to the harm from the hazardous pollutants they are controlling—to source-specific

controls.12 Sections 7411(a) and 7411(d) contain no

similar restriction on the BSER and, as such, the best

“system” under Section 7411(a) for existing stationary

sources under Section 7411(d) is not limited to control

technologies that can be installed “at and to” an individual source.

B. The Statutory Text Requiring That EPA

Determine the BSER That Is “Adequately

Demonstrated” Establishes That EPA

Looks to Means Already Used for the

Source Category and, for Fossil FuelFired Plants, Those Are Not Limited to “at

and to” Measures.

1. Petitioners’ arguments that EPA must confine

the BSER to measures that can be implemented “at

See National Emission Standards for Hazardous Air Pollutants from Coal and Oil-Fired Electric Utility Steam Generating

Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small

Industrial-Commercial-Institutional Steam Generating Units,

77 Fed. Reg. 9,304, 9,444 (Feb. 16, 2012) (regulating hazardous

air pollutants from power plants under Section 7412 and noting

that because “[t]his is an air toxics rule . . . it does not permit

emissions trading among sources” but instead “place[s] a limit on

the rate of [mercury] and other [hazardous air pollutants] emitted from each affected [power plant]”).

and to” specific power plants conflict with Section 7411(a)(1)’s requirement that EPA determine a

BSER that has been “adequately demonstrated.”

That phrase directs EPA, when it determines the best

system, to consider what methods actually have been

used by the category of sources in question to reduce

emissions.

The category of source in question here—fossil

fuel-fired plants—has long used shifting of the location and timing of power generation to meet consumer

demand and most effectively reduce emissions. It

would make little sense for EPA to disregard these

commonly used means when determining what is the

“best system of emission reduction” that has been “adequately demonstrated.”

The category of fossil fueled-fired power plants

presents unique circumstances because electricity differs from other products in key respects, including

that most producers and consumers of electricity are

tied into shared grids. Electricity cannot presently be

stored at large scale, but must instead be generated at

practically the instant it is needed. JA77. To maintain the uninterrupted supply of electricity to

consumers’ constantly changing demand, electric

power grids—“vast pool[s] of energy”—connect producers and consumers. New York v. FERC, 535 U.S.

1, 7 (2002). The continental United States contains

three such regional grids. JA77 n.2. Multiple generation facilities supply power into each grid. To

synchronize the supply of electric power with consumer demand, grid operators shift among different

producers in real time to have them increase or scale

back the energy they are delivering to the grid.

To manage this feat of generation coordination at

the lowest cost to consumers, grid operators use some

form of “constrained least-cost dispatch” approach.

JA87. Under that approach, grid operators typically

fulfill actual or anticipated demand by turning first to

producers with the lowest variable cost, subject to adjustment based on transmission limits, environmental

considerations, and other factors. This approach

keeps consumers’ utility bills down, and also provides

an incentive to rely first on power plants with lower

variable costs, such as renewable producers, whose

production costs are lower because they do not need to

pay for fuel. See Br. of Amici Curiae Grid Experts,

Doc. No. 1839544, No. 19-1140 (D.C. Cir. filed Apr. 23,

2020) (“Grid Experts Br.”).

In this interconnected system, shifting from one

producer to another occurs constantly throughout the

day, to meet marginal consumer demand and to compensate when other plants are inoperative. It is not a

novel tool, as Petitioners would have it, cf. Nat’l Mining Ass’n Br. 39, but simply reflects how the power

grid works to ensure a reliable supply of electricity for

consumers at least cost to them.

Some degree of generation-shifting is the inevitable result of applying even “at and to” measures to

control emissions from existing power plants. Any

measure that increases the variable costs for one facility to produce power will make that facility less

competitive as compared to other facilities, rendering

it less attractive to utilities and grid operators.

For example, a coal-fired power plant that uses

technology to scrub some of the carbon dioxide from

its flue gases must redirect some of its energy output

to power its scrubber, which increases the variable

costs of generating each megawatt-hour of electricity

it delivers to consumers. As a result, the grid operator

will call on (“dispatch”) this power plant marginally

less, and call more on other—cheaper and cleaner—

producers. Due to dynamics inherent in the market

for electric power, “generation-shifting” will thus result from any emission control measure that changes

producers’ respective operational costs.

2. Leveraging these unique aspects of the dynamic

and interconnected market for electric power, EPA,

States and industry have long demonstrated that

measures shifting generation from some producers to

others are part of an effective emission-reduction system. See Grid Experts Br. 13-15.

For example, in 2005, EPA promulgated its Clean

Air Mercury Rule (the “Mercury Rule”).13 That Rule

interpreted “best system of emission reduction” to encompass emission-trading programs and incorporated

into the BSER for existing power plants a program for

capping and trading mercury emissions under Section

7411. 70 Fed. Reg. at 28,616. EPA’s emission guidelines reflecting “the degree of emission limitation

achievable through the application of the [BSER],” 42

U.S.C. § 7411(a)(1), were premised on its projection

that coal-fired units for which it was “not cost effective

to install controls” would comply through “other approaches . . . including buying allowances, switching

13 Standards of Performance for New and Existing Stationary

Sources: Electric Utility Steam Generating Units, 70 Fed. Reg.

28,606 (May 18, 2005).

fuels, or making dispatch changes”—i.e., shifting generation to better-controlled units. 70 Fed. Reg. at

28,619 (emphasis added). EPA understood that some

existing sources could not or would not be able to costeffectively install the available controls. It did not

provide emission guidelines based on a level that each

and every individual source could cost-effectively

achieve. Instead, EPA provided emission guidelines

with the expectation that some sources would install

the required controls and some would buy allowances

from those which did or would shift generation to

cleaner units.

While generation-shifting may have figured differently in the Mercury Rule’s and CPP Rule’s respective

BSER determinations, the ACE Rule’s categorical rejection of generation-shifting was based not upon the

agency’s consideration of any such differences, but

upon its newfound view that Section 7411 unambiguously forbade anything other than measures that

could be applied “at and to” an individual source. As

the court of appeals found, it was not generation-shifting that was novel, but the ACE Rule’s interpretation

that forbade any best system premised on “both onsite and system-wide elements.” JA127.

Petitioners provide no meaningful basis to distinguish the Mercury Rule. Most Petitioners do not even

acknowledge the Mercury Rule. Although the National Mining Association attempts to distinguish

that Rule on grounds that the D.C. Circuit invalidated

it for other reasons, see New Jersey v. EPA, 517 F.3d

574, 578 (D.C. Cir. 2008), that fact does not undermine that EPA understood it had authority to

incorporate measures as part of the mercury BSER

that were not “at and to” a particular source. Nat’l

Mining Ass’n Br. 40-41. When the D.C. Circuit invalidated the Rule, it did so because EPA had failed to

follow certain steps prescribed by Section 7412 when

delisting coal- and oil-fired power plants from the lists

of sources of certain “hazardous” pollutants, whose

emissions are regulated under Section 7412. New Jersey, 517 F.3d at 578. Indeed, Section 7412(d)’s

“maximum achievable control technology” standards

were what the Mercury Rule attempted to evade by

instead addressing power plants’ emissions under

Section 7411 (under which sources would be subject to

the BSER). See 70 Fed. Reg. at 28,608.14

Arguments by the National Mining Association

(Br. 41) and North American Coal Corporation (Br.

47-48) that sources could have achieved mercuryemission limits under the Mercury Rule solely

through source-specific control technology likewise offer no basis to support their effort to limit BSER under

Sections 7411(a) and 7411(d) to “at and to” measures.

Petitioners point to nothing showing that it would not

be possible for coal-fired power plants to meet the CPP

Rule’s emission guidelines solely through source-specific control technologies such as carbon capture and

storage. Rather, use of such technologies would be—

as the CPP Rule recognized—less cost-effective than

purchasing emission credits from and shifting generation to cleaner sources. JA578-79. But the Mercury

Rule likewise recognized that some sources could not

have installed the referenced technology cost-effectively and, as a practical matter, would have bought

emission credits or shifted generation to cleaner

14 See supra at pages 33-35.

sources instead. See, e.g., 70 Fed. Reg. at 28,619

(“units that are not cost effective to install controls”

would achieve reductions by buying credits or “making dispatch changes”).

Given that the Mercury Rule’s emission guidelines

were predicated upon projected shifts in generation to

cleaner sources, Petitioner Westmoreland is incorrect

that no prior rule under Section 7411 “premised emission rates on reduced utilization of existing sources,

through ‘shifting’ or otherwise.”

Westmoreland

Br. 29. And because any formulation of the BSER

that changes power plants’ relative costs will cause reduced utilization of some, Petitioners’ arguments that

the statute forbids consideration of systems that

“forc[e] the reduced utilization” of certain facilities (id.

at 35) or “diminish[] [their] capacity” (North Am. Coal

Corp. Br. 35) must be based on an implicit distinction

between means that will cause generation-shifting as

a purely incidental effect and means considered as a

candidate for the BSER because they will cause such

generation-shifting. But nothing in the text announces such a categorical distinction between

permissible and impermissible systems of emission

reduction.

In the context of the electricity grid—where maintaining the power sector’s ultimate service of a

reliable electricity supply necessarily requires power

plants to increase and reduce their generation of electricity as consumer demand and other plants’

availability changes throughout the day—it makes no

sense to suggest that the statute categorically bars

any system of emission reduction that ultimately

causes an individual power plant to reduce its generation.

C. The ACE Rule’s Interpretation Would Undermine the Statutory Purpose of

Emission Reduction.

Sections 7411(a) and 7411(d) provide for determination of the “best system of emission reduction”

adequately demonstrated, considering cost and other

factors, thus reflecting Congress’s overarching purpose of achieving cost-effective emission reduction.

But the crabbed reading advocated by Petitioners and

reflected by the ACE Rule would result in substantially lower and less cost-effective emission reduction

than could be achieved under an approach in which

the BSER considers generation-shifting.

The ACE Rule identified a series of measures that

could increase the efficiency of coal-fired power plants

by between 0.1 and 2.9 percent. Even assuming that

States chose to implement these essentially voluntary

measures and that these measures caused only a minimal “rebound effect,”15 the agency still estimated that

the ACE Rule would reduce U.S. carbon dioxide emissions by less than 1 percent. Compare JA1920 tbl. 3

with, e.g., JA1722.

The “rebound effect” reflects that measures intended to increase the efficiency of coal-fired power plants will—by lowering

the marginal cost of operating those plants—lead to increased

utilization of those plants as compared to gas-fired plants and

other sources, thereby increasing emissions. See JA92; JA65960 (CPP Rule); JA1832-36 (ACE Rule).

By contrast, an approach that considers generation-shifting could achieve nearly 30 times the total

reduction in carbon dioxide emissions than would occur under the ACE Rule, at no greater cost per ton of

carbon dioxide abated. Grid Experts Br. 21-22. The

inferiority of Petitioners’ preferred system in comparison to an adequately demonstrated alternative

system signals that their restriction is contrary to the

purpose of determining the “best system of emission

reduction” for power plants.

D. The ACE Rule’s Grammatical Theory of

“Application” Is Unsound.

The ACE Rule’s interpretation of Section 7411 centered on a new reading of the word “application” in

Section 7411(a)(1)’s definition of “standard of performance.” JA1745. The ACE Rule reasoned that the

CPP Rule incorrectly treated “application” as a synonym of “implementation,” which it viewed as

“send[ing] different signals.” JA1761-62. The distinction, according to the ACE Rule, is that “application”

of the BSER requires an indirect object, which must,

and can only, be the physical confines of an individual

plant. JA1746.

But “application” does not require an indirect object when it is used in the sense of applying a principle

or process to achieve a result or outcome, such as a

judge’s application of precedent. JA113. The text of

Section 7411(a)(1) provides for “application” generally

of the BSER. The agency does that in the context of

the category of stationary source at issue, here that is

the application of the BSER to the source category of

fossil fuel-fired plants, not to a particular individual

plant.

Moreover, as the court of appeals noted, Congress

did not use the verb “apply,” but rather the noun “application,” which does not require an indirect object.

JA112-13. Congress regularly uses such nominalizations “with the full awareness that their use preserves

flexibility.” JA114. West Virginia contends that even

as a nominalization, the best system of emission reduction must be used “for something.” West Virginia

Br. 37. But the text of Section 7411 answers what the

BSER must be used for: it must be applied to identify

the achievable degree of emission limitation, which

can in turn be reflected in the standards of performance States establish for existing sources.

Even proceeding from the incorrect premise that

“application” must have an indirect object, the ACE

Rule’s reading fails. The Rule purportedly located in

Section 7411(d) an indirect object for Section 7411(a)’s

use of “application.” Under that view, because Section 7411(d)(1)

provides

that

“standards

performance” be “for an existing source,” Section 7411

limits the BSER to systems that can be put into operation at and to an individual existing source. E.g.,

JA1839. The Rule reasoned that because Section 7411

defines an “existing source” as “any stationary source

other than a new source,” and a “stationary source” as

“any building, structure, facility, or installation which

emits or may emit any air pollutant,” Section 7411

limits the BSER to systems that can be put into operation at and to a particular building, structure,

facility, or installation. Id.

But that reasoning conflates two distinct statutory

provisions and their respective functions. The “for”

provision in Section 7411(d)(1) addresses standards of

performance “for” any existing source that States

must submit to EPA. By contrast, Section 7411(a)(1)

addresses EPA’s responsibility to determine the

BSER that has been adequately demonstrated for the

particular category of stationary source at issue. The

ACE Rule disregarded the distinct text and functions

of these two provisions to manufacture an indirect object that does not exist in Section 7411(a)(1).

In addition to that maladaptation of “for,” the ACE

Rule erroneously replaced that “for” with yet other

prepositions (“at” and “to”) that do not appear even in

that provision. Section 7411(d)(1) provides that

States must set standards of performance “for” any existing source, not “at” or “to” any existing source. 42

U.S.C. § 7411(d); see also JA117. Section 7411(a) also

does not use “at” to define either a “standard of performance,” an “existing source,” or a “stationary

source.” § 7411(a)(1), (3), (6).

The ACE Rule and Petitioners’ textual argument

thus fail on their own terms.

E. The ACE Rule Compounded Its Erroneous

Reading by Unnecessarily Expanding It to

Eliminate the Flexibility Congress Accorded States and Power Plants.

The ACE Rule is wholly contrary to the Clean Air

Act’s provisions affording States flexibility in developing and enforcing standards of performance for

existing sources, and power plants in meeting such

standards.

The ACE Rule expanded the impact of its erroneous statutory reading by declaring that not only is

EPA limited to “at and to” measures in determining

the BSER, but also that the authority of States to determine standards of performance also is somehow

limited to “at and to” measures. That contorted view

of the statute would bar States and power plants from

utilizing flexible compliance mechanisms that have

become part and parcel of emission limitations in the

industry.

Neither the text nor the structure of the Clean Air

Act supports the ACE Rule’s reading. As the court of

appeals observed, “[t]he [Clean Air Act] says nothing

about the measures that sources may use to comply

with the standards States establish under Section

[7411].” JA133.

Indeed, for nearly half a century, Democratic and

Republican Administrations alike have relied on the

fact that power plants may meet emissions provisions

under the Clean Air Act through emission-trading

systems. In promulgating the Mercury Rule (see Part

II.B.2, supra), the Bush Administration relied on the

assumption that power plants that could be most efficiently retrofitted with control technology would overcontrol their own mercury emissions and sell emission

credits to other plants, 70 Fed. Reg. at 28,619. Likewise, the Clinton Administration’s rule governing

nitrous oxide emissions from municipal solid waste

combustors relied on States allowing sources to satisfy

emission limits by averaging emissions from different

units within one plant and trading credits with other

plants. Standards of Performance for New Stationary

Sources and Emission Guidelines for Existing

Sources: Municipal Waste Combustors, 60 Fed. Reg.

65,387, 65,402 (Dec. 19, 1995).

In stark contrast, the ACE Rule’s insistence that

each source must achieve and implement standards of

performance without averaging or trading, JA189599, was a marked departure from the tools that States

and power plants have long utilized.

Power companies, including the Power Company

Respondents, favor emission-reduction approaches

that allow for trading because these market-driven

approaches enable the greatest emission reduction at

the lowest cost. Even if BSER were limited to “at and

to” measures, there is no basis whatsoever to restrict

State authority to allow power plants to use other

measures for compliance purposes.

III. THE COURT NEED NOT ADOPT AN

ARTIFICIALLY NARROW READING OF SECTION

7411 TO AVOID VIOLATION OF THE

NONDELEGATION DOCTRINE.

A. Some Petitioners argue in passing that Section 7411 must be read to avoid constitutional

problems that would result from giving EPA unbounded authority to regulate greenhouse-gas

emissions. Nat’l Mining Ass’n Br. 48; West Virginia

Br. 44-49; Westmoreland Br. 41-44. The court of appeals, however, did not bestow, and EPA does not

claim, unbounded authority.

Petitioners in effect ask this Court to choose between, on the one hand, embracing their atextual “at

and to” reading of BSER and, on the other hand, giving EPA unrestrained authority, as one Petitioner

would have it, to “restructur[e] (or condemn[]) entire

sectors of the economy according to its own policy objectives.” Westmoreland Br. 43. But that is a false

dichotomy.

The court of appeals did not uphold the CPP Rule;

it vacated the ACE Rule that had repealed the CPP

Rule, and remanded the matter to EPA “to interpret

the statutory language anew.” JA104. That is just

what EPA is doing. See U.S. Br. in Opp’n 33. The

court of appeals also did not hold that there were “no

limits” on EPA’s exercise of its authority regarding

emissions under Section 7411(d). North Am. Coal

Br. 37; North Dakota Br. 31; West Virginia Br. 13, 19,

47; Westmoreland Br. 17. The court of appeals recognized that Section 7411(a)(1) requires EPA to take

into account “cost, any nonair quality health and environmental impacts, and energy requirements” when

determining what BSER has been “adequately

demonstrated.” JA108. Far from concluding that

EPA had unbridled authority under Section 7411, the

court of appeals properly concluded that these “limitations do not include the source-specific caveat”

imposed by the ACE Rule, and that Section 7411(a)(1)

imposes “no limits beyond” these restrictions. JA106,

JA108.

It is unnecessary to avoid nondelegation problems

that may lurk within an interpretation of the statute

that the agency does not actually espouse. A challenger’s argument that the broadest possible reading

of a statute might pose nondelegation problems in no

way requires skipping past sensible intermediary options.

Far from avoiding constitutional issues,

invocation of the canon of constitutional avoidance in

these circumstances would inject constitutional questions into a case presenting no such questions, and

“violate[] [this Court’s] general practice of avoiding

the unnecessary resolution” of such questions. See

Gregory v. Ashcroft, 501 U.S. 452, 479 (1991) (White,

J., concurring in part).

B. The nondelegation doctrine is not violated, in

any event, because the plain text of Sections 7411(a)

and 7411(d) provides intelligible principles to guide

the agency. Congress did not “fail[] to articulate any

policy or standard that would serve to confine the

[Agency’s] discretion.” See Mistretta v. United States,

488 U.S. 361, 373 n.7 (1989). Indeed, Congress specified a series of requirements that guide the agency in

fulfilling its responsibilities under the Statute.

Sections 7411(a) and 7411(d), in particular, define

what is regulated (harmful emissions from categories

of existing stationary sources subject to standards of

performance imposed by the States, 42 U.S.C.

§ 7411(a)(6)); which emissions are regulated (air pollutants not covered by NAAQS or Section 7412,

§ 7411(d)(1)(A)); and how those emissions are to be

regulated (through a cooperative-federalism approach

in which States establish standards of performance

that reflect the degree of emission limitation achievable through application of what EPA has determined

(after considering cost, other health and environmental impacts, and energy requirements) is the

adequately demonstrated BSER, § 7411(a)(1)). Moreover, the Clean Air Act specifies why this statutory

and regulatory scheme exists (among other things, “to

protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare

and the productive capacity of its population,”

§ 7401(b)(1)). Far from entrusting others with the

“legislative Power,” Congress enacted a detailed statute that dictates essential policy, leaving States and

EPA to identify which among the rapidly evolving

means are most capable of limiting emissions while

serving cost and electric-supply needs. See Section I.C, supra.

In enacting Section 7411, Congress enlisted the

scientific and technical knowledge of an expert agency

to track, among other things, the latest developments

in rapidly evolving means of emission control and

their costs, and the reduction in emission of various

pollutants achievable through application of those

means in complex, dynamic markets. Foisting on

Congress a nondelegable responsibility for these intricate details is neither practically feasible nor

constitutionally required.

Prior to the ACE Rule, EPA itself recognized that

the phrase BSER places “significant constraints”

when read in its statutory context. The agency concluded that it must (1) cause reduction from sources

(ruling out emission offsets), (2) be limited to emission

reduction means that sources themselves take or control (ruling out demand-side energy efficiency

measures), (3) be “adequately demonstrated,” based

on a history of implementation and effectiveness, and

(4) be “best,” taking into account, among other things,

emission reduction, “cost” and “energy requirements.”

42 U.S.C. § 7411(a)(1); JA541, JA734. These statutory limitations not only provide EPA with an

intelligible principle, but sufficiently make the key

policy decisions about how to limit emissions by existing stationary sources so EPA is appropriately tasked

with “fill[ing] up the details” in the plan Congress has

charted. See Gundy v. United States, 139 S. Ct. 2116,

2123 (2019) (plurality op.); id. at 2139 (Gorsuch, J.,

dissenting). There is no need to misconstrue Section 7411 to avoid violating the nondelegation

doctrine, because this provision raises no such constitutional problems.

Nothing in Article I requires limiting the BSER to

measures that can be installed “at and to” specific existing sources. West Virginia concedes that allowing

EPA to identify means for emission reduction “at and

to” existing fossil fuel-fired power plants (e.g., smokestack scrubbers) as part of the BSER for those plants

does not implicate the nondelegation doctrine. West

Virginia Br. 46. But the State insists that incorporating “outside the fenceline” emission controls (e.g, cofiring biofuels) in determination of the BSER violates

the Constitution. Id. It is implausible that the separation of powers doctrine should dictate the answer to

that choice between different means of controlling

emissions from existing fossil fuel-fired power plants.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

Kevin Poloncarz

COVINGTON & BURLING LLP

415 Mission Street,

Suite 5400

San Francisco, CA 94105

(415) 591-6000

kpoloncarz@cov.com

S. Conrad Scott

COVINGTON & BURLING LLP

620 Eighth Avenue

New York, NY 10018

January 18, 2022

Beth S. Brinkmann

Counsel of Record

Eric Chung

Laura E. Dolbow

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

Counsel for the Power

Company Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.