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

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

In the

Supreme Court of the United States

WEST VIRGINIA, et al.,

Petitioners,

v.

Environmental Protection Agency, et al.,

Respondents.

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

Environmental Protection Agency, et al.,

Respondents.

(For Continuation of Caption See Inside Cover)

On Writs of Certiorari to the United States Court of

A ppeals for the District of Columbia Circuit

Brief of Non-Governmental

Organization and Trade

Association Respondents

Sean H. Donahue

Counsel of Record

David T. Goldberg

Donahue, Goldberg & Littleton

1008 Pennsylvania Avenue, SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Counsel for Respondents

Additional Counsel listed at end of Brief

310103

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

v.

Environmental Protection Agency, et al.,

Respondents.

NORTH DAKOTA,

Petitioner,

v.

Environmental Protection Agency, et al.,

Respondents.

i

QUESTIONS PRESENTED

1. Whether this dispute remains a justiciable case or

controversy under Article III of the Constitution.

2. Assuming jurisdiction, whether Section 7411 of

the Clean Air Act restricts the “best system of

emission

reduction”

that

is

“adequately

demonstrated” to measures applied “to and at” each

individual source.

ii

RULE 29.6 STATEMENT

American Lung Association; American Public

Health Association; Appalachian Mountain Club;

Center for Biological Diversity; Chesapeake Bay

Foundation, Inc.; Clean Air Council; Clean Wisconsin;

Conservation Law Foundation; Environmental

Defense Fund; Environmental Law & Policy Center;

Minnesota Center for Environmental Advocacy;

Natural Resources Defense Council; and Sierra Club,

all of which were petitioners and respondentintervenors in the court of appeals, are non-profit

public health and environmental organizations.

Advanced Energy Economy, American Clean Power

Association (successor of the American Wind Energy

Association),

and

Solar

Energy

Industries

Association, all of which were petitioners in the court

of appeals, are nonprofit trade associations. None of

these entities has any corporate parent, and no

publicly held corporation owns an interest in any of

them.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

RULE 29.6 STATEMENT .......................................... ii

TABLE OF CONTENTS ........................................... iii

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

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

JURISDICTION .......................................................... 3

STATEMENT OF THE CASE .................................... 4

A. Congress Enacted the Clean Air Act To

Ensure Effective Control of Air Pollution

Over Time ............................................................... 4

B. Section 7411 of the Act Ensures “No Gaps”

in the Control of Stationary Source

Pollution ................................................................. 6

C. EPA’s Authority Includes Regulation of

Greenhouse Gas Pollution from Power

Plants......................................................................9

D. EPA Promulgates the Clean Power Plan ............ 12

E. EPA Repeals the Clean Power Plan, and

Replaces It with the ACE Rule, Based

Solely on a Newly Constrained Legal

Interpretation....................................................... 15

F. The Court of Appeals Reviews, and Rejects,

EPA’s Sole Ground for the Repeal ....................... 19

SUMMARY OF ARGUMENT ................................... 21

iv

ARGUMENT ............................................................. 23

I. These Cases Are Not Justiciable ......................... 23

II. Section 7411 Does Not Contain the

Restriction That Was EPA’s Sole Basis for

Repealing the Clean Power Plan ......................... 32

III.Reliance on Major Questions Principles Is

Misplaced ............................................................. 42

IV. North Dakota’s Arguments Are Meritless .......... 49

CONCLUSION .......................................................... 53

v

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021)............................................ 44

Alvarez v. Smith,

558 U.S. 87 (2009).................................................. 30

Am. Elec. Power Co. v. Connecticut,

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

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997)............................................ 24, 29

Bethune-Hill v. Va. State Bd. Of Elections,

137 S. Ct. 788 (2017).............................................. 50

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020)............................................ 47

California v. Texas,

141 S. Ct. 2104 (2021)............................................ 27

Camreta v. Greene,

563 U.S. 692 (2011)................................................ 29

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)................................................ 32

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020)............................................ 37

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006).......................................... 23, 32

vi

Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal.,

140 S. Ct. 1891 (2020)............................................ 33

Diamond v. Charles,

476 U.S. 54 (1986).................................................. 24

EPA v. Brown,

431 U.S. 99 (1977).................................................. 30

EPA v. EME Homer City Gen., L.P.,

572 U.S. 489 (2014)................................................ 36

FERC v. Elec. Power Supply Ass’n,

577 U.S. 260 (2016)................................................ 45

Gundy v. United States,

139 S. Ct. 2116 (2019)............................................ 48

Hall v. Beals,

396 U.S. 45 (1969).................................................. 24

Hodel v. Va. Surface Min. & Reclamation Ass’n,

452 U.S. 264 (1981)................................................ 50

Hollingsworth v. Perry,

570 U.S. 693 (2013).................................... 23, 27, 32

In re Murray Energy Corp.,

788 F.3d 330 (D.C. Cir. 2015) .......................... 31, 32

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990)................................................ 29

Massachusetts v. EPA,

549 U.S. 497 (2007)........................................ 5, 9, 47

vii

Nat’l Fed’n of Indep. Bus. v. OSHA,

595 U.S. __ (2022) .................................................. 43

Nat’l Lime Ass’n v. EPA,

627 F.2d 416 (D.C. Cir. 1980) ................................ 48

Nat’l Park Hosp. Ass’n v. Dep’t of Interior,

538 U.S. 803 (2003)................................................ 31

New York v. Reilly,

969 F.2d 1147 (D.C. Cir. 1992) .............................. 48

Ohio Forestry Ass’n, Inc. v. Sierra Club,

523 U.S. 726 (1998)................................................ 31

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

Conservation & Dev. Comm’n,

461 U.S. 190 (1983)................................................ 30

Romag Fasteners, Inc v. Fossil, Inc.,

140 S. Ct. 1492 (2020)............................................ 36

SEC v. Chenery Corp.,

332 U.S. 194 (1947).......................................... 33, 50

State Farm Fire & Cas. Co. v. U.S. ex rel. Rigsby,

137 S. Ct. 436 (2016).............................................. 35

Town of Chester, N.Y. v. Laroe Estates, Inc.,

137 S. Ct. 1645 (2017)............................................ 25

Train v. Nat. Res. Def. Council,

421 U.S. 60 (1975)........................................ 4, 50, 53

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021)............................................ 26

viii

Trump v. New York,

141 S. Ct. 530 (2020).................................. 24, 30, 31

Union Elec. Co. v. EPA,

427 U.S. 246 (1976)............................................ 4, 45

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014).................................... 42, 43, 44

Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019)................................ 24, 25, 27

West Virginia v. EPA,

577 U.S. 1126 (2016).............................................. 14

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001)............................................ 3, 48

Wittman v. Personhuballah,

578 U.S. 539 (2016).................................... 25, 26, 29

Zivotofsky v. Clinton,

566 U.S. 189 (2012)................................................ 50

Statutes

15 U.S.C. §§ 2921-2961 ............................................. 11

28 U.S.C. § 1254 .......................................................... 3

42 U.S.C. § 7408 .......................................................... 6

42 U.S.C. § 7409 .......................................................... 6

42 U.S.C. § 7410 .................................................... 6, 40

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

42 U.S.C. § 7412 .................................................... 6, 35

ix

42 U.S.C. § 7479 ........................................................ 35

42 U.S.C. § 7491 ........................................................ 35

42 U.S.C. § 7602 .................................................... 5, 38

42 U.S.C. § 7607 ...................................... 31, 33, 40, 45

42 U.S.C. § 7651f ....................................................... 35

Pub. L. No. 101-549, 104 Stat. 2399 (1990) .............. 36

Pub. L. No. 117-23, 135 Stat. 295 (2021) .................. 47

Pub. L. No. 95-95, 91 Stat. 685 (1977) ...................... 36

Other Authorities

A. Scalia & B. Garner, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS (2012) .............. 34

EPA, Our Nation’s Air 2020........................................ 6

EPA, Regulatory Impact Analysis for the

Repeal of the Clean Power Plan and the

Emission Guidelines for Greenhouse Gas

Emissions from Existing Electric Utility

Generating Units (June 2019) ......................... 18, 27

EPA, Regulatory Impact Analysis for the Clean

Power Plan Final Rule (Aug. 2015) ...................... 46

EPA, The Benefits and Costs of the Clean Air Act

from 1990 to 2020 (Mar. 2011) ................................6

H.R. Rep. No. 117-64 (2021)...................................... 47

Hearing on the Nomination of Michael S. Regan

to be Administrator of the Environmental

x

Protection Agency Before the S. Comm. on Envt.

& Pub. Works, 117th Cong. 42-43 (2021) .............. 20

Jason Price et al., The Benefits and Costs of

U.S. Air Pollution Regulations, Industrial

Economics, Inc. (May 2020) .....................................5

Lee Logan, Facing Risks, EPA’s Counsel

Defends ‘Bold’ ACE Rule Legal Interpretation,

INSIDE EPA (Aug. 2, 2019) ..................................... 15

National Oceanic and Atmospheric Administration,

U.S. saw its 4th-warmest year on record, fueled

by a record-warm December (Jan. 10, 2022) ......... 11

Robert R. Nordhaus and Ilan W. Gutherz,

Regulation of CO2 Emissions From Existing

Power Plants Under §111(d) of the Clean Air Act:

Program Design and Statutory Authority,

44 ENVTL. L. REP. 10,366 (2014)..............................9

S. Rep. No. 91-1196 (1970) .......................................... 6

U.S. Energy Information Administration,

Today in Energy (June 9, 2021) ............................ 17

U.S. Energy Information Administration,

Today in Energy (May 9, 2016) ............................. 13

U.S. Global Change Research Program,

Fourth National Climate Assessment,

Volume II: Impacts, Risks, and Adaptation

in the United States (2018) .................................... 11

Rules

40 Fed. Reg. 53,340 (Nov. 17, 1975) ......................... 51

xi

60 Fed. Reg. 65,387 (Dec. 19, 1995) .......................... 16

70 Fed. Reg. 28,606 (May 18, 2005) .......................... 16

74 Fed. Reg. 66,496 (Dec. 15, 2009) .......................... 10

80 Fed. Reg. 64,662 (Oct. 23, 2015) .......................... 12

84 Fed. Reg. 32,520 (July 8, 2019) ............................ 15

Regulations

40 C.F.R. § 60.22 ......................................................... 7

40 C.F.R. § 60.23 ......................................................... 7

40 C.F.R. § 60.24 ....................................................... 52

40 C.F.R. § 60.24a ........................................... 9, 51, 52

1

INTRODUCTION

This dispute involves the 2019 repeal of an

Environmental Protection Agency (EPA) rule—the

2015 Clean Power Plan (CPP)—that has never been,

and will never be, in effect. The agency has made clear

that it will not reinstate either the CPP or the 2019

Affordable Clean Energy (ACE) Rule that replaced it,

and instead will promulgate a new rule for power

plant emissions of carbon dioxide (CO2) on a clean

slate.

For all the sensational assertions in the

petitioner-side briefing, the only truly dramatic

feature of this proceeding is a conspicuous absence of

Article III jurisdiction. The court below vacated the

ACE Rule and ordered that the CPP Repeal remain in

place until EPA completes its new rulemaking. Thus,

no power plant is currently subject to regulation

under either rule and no power companies petitioned

this Court for review. Nor can any petitioning state or

coal company show harm from the disposition below.

There is no serious possibility that the CPP will take

effect, and even if it did, market-driven trends in the

electric power sector have rendered its emissionreduction targets immaterial. Indeed, when EPA

repealed the CPP in 2019, it projected that the repeal

would result in no cost savings for anyone. Petitioners

themselves term the CPP a “legal nullity” (N.D. Br. 32

n.2) and a “relic” (N. Am. Coal Pet. 18). And their only

standing proffers to date are the coal companies’

declarations asserting injury from the ACE Rule,

2

which they now claim was wrongly vacated by the

court of appeals. Petitioners thus have not established

their standing to invoke this Court’s jurisdiction to

review the decision below.

Petitioners’ primary complaints, then, are about

how EPA might exercise its authority in a future

rulemaking. But such anticipatory claims are unripe.

Litigants must await the result of EPA’s new

rulemaking, which will both define the issues for

judicial review and avoid entangling the Court in an

unnecessary advisory exercise over an abstract and

technical policy dispute. In the absence of any extant

regulation (or evidence of a concrete injury), there is

no case or controversy for this Court to adjudicate.

If the dispute were justiciable, petitioners’ claims

would fail. This Court has already determined that

Section 7411, a core provision of the Clean Air Act,

“speaks directly” to power plants’ emissions of CO2;

gives EPA authority to decide “whether and how” to

regulate those emissions; and assigns EPA the

“complex balancing” task required to determine the

best pollution-control systems in the context of a

technical and complex record for particular industrial

categories. Am. Elec. Power Co. v. Connecticut (AEP),

564 U.S. 410, 424-27 (2011).

The CPP Repeal, not the CPP itself, was before

the lower court and is before this Court now. EPA

based that repeal on the contention that the Clean Air

Act unambiguously bars the agency, in identifying the

“best system of emission reduction” under Section

3

7411(a)(1), from considering any emission-reduction

systems that do not apply “to and at” each source. This

novel “fenceline” restriction—which contradicts past

EPA rules—lacks any support in the statute’s text. It

also goes far beyond disapproving the CPP, instead

categorically and unreasonably prohibiting EPA from

considering

proven

emission-reductions

tools

including economic incentives such as emissions

averaging or trading among sources, which can be

cost-effective means of reducing pollution.

Nor is this novel restriction justified by major

questions (or nondelegation) principles. The Court has

never applied those principles to a defunct rule that

would impose no meaningful compliance costs even if

reinstated. “Were it not for the hundreds of pages of

briefing” that petitioners present on the issue,

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465

(2001), the major questions cases’ inapplicability in

such circumstances would be beyond dispute.

Regardless, those cases still would not affect the

outcome here, particularly in light of AEP’s holding

(which petitioners simply ignore) that Section 7411

assigned the decision how to regulate power plants’

CO2 emissions to EPA’s “expert determination.” 564

U.S. at 426.

JURISDICTION

The D.C. Circuit entered judgment on January 19,

2021. The petitions for certiorari were timely. This

Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1). As explained in Part I, infra, no justiciable

4

case or controversy is presented under Article III of

the Constitution.

STATEMENT OF THE CASE

A. Congress Enacted the Clean Air Act To

Ensure Effective Control of Air Pollution

Over Time

The Clean Air Act of 1970 established the modern

federal regulatory framework governing control of air

pollution. 42 U.S.C. §§ 7401 et seq. Rejecting the

nation’s prior approaches to air pollution control, in

which the federal government had little authority

beyond encouraging state action, see Train v. Nat. Res.

Def. Council, 421 U.S. 60, 63-64 (1975), the 1970 Act

was a “remedy to what was perceived as a serious and

otherwise uncheckable problem of air pollution,”

Union Elec. Co. v. EPA, 427 U.S. 246, 256 (1976).

Congress established a comprehensive regulatory

framework to address not only the dangerous air

pollutants identified at that time, but also to equip

EPA and states with tools to address new air pollution

dangers and to embrace evolving pollution control

techniques. See, e.g., 116 CONG. REC. 32,901-02 (1970)

(statement of Sen. Muskie). For this purpose,

Congress built in provisions to ensure the statute’s

continued effectiveness over decades, including

technology-forcing mechanisms to spur innovation,

requirements for EPA to periodically review and

update standards, and the duty to list and regulate

5

additional pollutants when their dangers became

apparent.

The Act’s architects were aware of—and

concerned about—the potential for air pollution to

cause climate change. See, e.g., 42 U.S.C. § 7602(h)

(defining “effects on welfare” as including “effects on

. . . weather . . . and climate”); 116 CONG. REC. 32,914

(1970) (statement of Sen. Boggs) (“Air pollution alters

climate and may produce global changes in

temperature” (quoting Council on Envtl. Quality,

First Annual Report 71 (1970)). Congress thus gave

EPA tools to address climate-altering air pollution

and, indeed, required EPA to do so upon finding that

it endangers public health or welfare. Massachusetts

v. EPA, 549 U.S. 497, 528-34 (2007).

In short, the Clean Air Act, by design, has enabled

EPA to adapt to “changing circumstances and

scientific developments” in tackling major air

pollution problems, including those not yet fully

understood at the time of enactment. Id. at 532; see

also Whitman, 531 U.S. at 462-63 (describing EPA’s

statutory duty to review and revise air quality

standards). And it has been remarkably effective: the

Act has saved hundreds of thousands of lives every

year,1 while the U.S. economy nearly tripled in value

Jason Price et al., The Benefits and Costs of U.S. Air

Pollution Regulations, Industrial Economics, Inc. (May 2020),

https://www.nrdc.org/sites/default/files/iec-benefits-costs-us-airpollution-regulations-report.pdf; see also EPA, The Benefits and

1

6

over the Act’s 50-year history.2 Key American

industries, from automobiles to manufacturing to

electric power generation, are more productive than in

1970—and vastly cleaner thanks to this law.

B. Section 7411 of the Act Ensures “No

Gaps” in the Control of Stationary

Source Pollution

Congress established a trio of Clean Air Act

programs to ensure “no gaps in control activities

pertaining to stationary source emissions that pose

any significant danger to public health or welfare.” S.

Rep. No. 91-1196, at 20 (1970). Under Sections 7408

and 7409, EPA sets national ambient air quality

standards for “criteria” air pollutants emitted from

numerous and diverse stationary and mobile sources.

States then adopt implementation plans under

Section 7410, subject to EPA approval, to attain or

maintain these standards.

Under Section 7412, EPA sets emissions

standards for controlling “hazardous” (i.e., especially

toxic) air pollutants from categories of new and

existing industrial sources. These federal standards

apply directly to the applicable sources, although EPA

may delegate enforcement to states.

Costs of the Clean Air Act from 1990 to 2020 (Mar. 2011),

https://www.epa.gov/sites/default/files/201507/documents/summaryreport.pdf.

2

EPA,

Our

Nation’s

Air

(2020),

https://gispub.epa.gov/air/trendsreport/2020/#air_trends.

7

Rounding out the trio is Section 7411, which

serves to limit other harmful emissions from

stationary sources. As the Court has explained:

Section [7411] of the Act directs the EPA

Administrator to list “categories of

stationary sources” that “in [her]

judgment . . . caus[e], or contribut[e]

significantly to, air pollution which may

reasonably be anticipated to endanger

public health or welfare.” § 7411(b)(1)(A).

Once EPA lists a category, the Agency

must establish standards of performance

for emission of pollutants from new or

modified sources within that category. §

7411(b)(1)(B); see also § 7411(a)(2). And,

most relevant here, § 7411(d) then

requires regulation of existing sources

within the same category. For existing

sources,

EPA

issues

emissions

guidelines, see 40 CFR §§ 60.22, 60.23

(2009); in compliance with those

guidelines and subject to federal

oversight, the States then issue

performance standards for stationary

sources within their jurisdiction,

§ 7411(d)(1).

AEP, 564 U.S. at 424. Section 7411(d) applies only to

existing sources’ emissions of dangerous pollutants

that are not listed as criteria or hazardous

8

pollutants—that is, not covered by Sections 7408-7410

or 7412.

A “standard of performance” is:

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 which (taking into

account the cost of achieving such

reduction and any nonair quality health

and environmental impact and energy

requirements)

the

Administrator

determines

has

been

adequately

demonstrated.

42 U.S.C. § 7411(a)(1).

In developing emissions guidelines, EPA: (1)

identifies all “system[s] of emission reduction” that

are “adequately demonstrated” for the source category

in question; (2) identifies the “best” of those systems,

considering emission-reducing efficacy, costs, and

other factors; and (3) identifies “the degree of emission

limitation achievable through the application” of that

system. Id. In other words, EPA sets an emission limit

for the source category, which is incorporated into the

guideline. The guideline provides procedures for

states to submit plans establishing a standard for

each existing source that is “no less stringent” than

the guidelines’ emission limit, acknowledges states’

authority to consider source-specific factors including

“remaining useful life,” and establishes parameters

9

for EPA to approve or disapprove the plans. 42 U.S.C.

§ 7411(d)(1); 40 C.F.R. § 60.24a(c). If a state “fails to

submit a satisfactory plan,” or simply chooses not to

submit one, EPA must step in to prescribe a federal

plan that imposes emission performance standards

directly on the state’s existing sources. 42 U.S.C.

§ 7411(d)(2). EPA has issued regulations under

Section 7411(d) in 13 instances for source categories

ranging from municipal waste combustors to landfills

to aluminum plants, based on a variety of systems

tailored to the category and pollutant.3

C. EPA’s Authority Includes Regulation of

Greenhouse Gas Pollution from Power

Plants

In Massachusetts, this Court held that the Clean

Air Act’s “definition of ‘air pollutant’” unambiguously

encompasses greenhouse gases—compounds like CO 2

that “act[] like the ceiling of a greenhouse, trapping

solar energy and retarding the escape of reflected

heat.” 549 U.S. at 505, 528-29. The Court held that

EPA must regulate these air pollutants if the agency

concluded their emissions “cause, or contribute to, air

pollution which may reasonably be anticipated to

endanger public health or welfare.” Id. at 528 (quoting

42 U.S.C. § 7521(a)(1)).

3 Robert R. Nordhaus & Ilan W. Gutherz, Regulation of CO2

Emissions From Existing Power Plants Under §111(d) of the

Clean Air Act: Program Design and Statutory Authority, 44

ENVTL. L. REP. 10,366 (2014).

10

Two years later, EPA issued an “endangerment

determination” for CO2 and other greenhouse gases

after completing a comprehensive assessment of the

scientific evidence. 74 Fed. Reg. 66,496 (Dec. 15,

2009). EPA determined that the risks from

greenhouse gas pollution include intensified heat

waves, worsened air quality, greater frequency and

intensity of storms and droughts, rising sea levels,

and increased spread of food- and water-borne

pathogens, among many other effects. Id. at 66,497,

66,524-36. EPA concluded that emissions of

greenhouse gases, including CO2, endanger the public

health and welfare of current and future generations

and thus require Clean Air Act regulation. Id. at

66,516-36.

Years before Massachusetts, states and land

trusts brought federal common law nuisance suits

against five electric power companies, seeking

injunctive relief to limit the companies’ CO2

emissions. AEP, 564 U.S. at 418-19. This Court held

in 2011 that the plaintiffs’ federal common law claims

were superseded by the Clean Air Act, explaining:

“Massachusetts made plain that emissions of carbon

dioxide qualify as air pollution subject to regulation

under the Act. . . . And we think it equally plain that

the Act ‘speaks directly’ to emissions of carbon dioxide

from [fossil fuel-fired power] plants.” Id. at 424. The

Court found it “altogether fitting that Congress

designated an expert agency, here, EPA, as best

suited to serve as primary regulator of greenhouse gas

emissions” from power plants under Section 7411(d).

11

Id. at 428. To that end, Congress directed the agency

to perform the “complex balancing” of “the

environmental benefit potentially achievable, our

Nation’s energy needs and the possibility of economic

disruption.” Id. at 427.

In the decade since AEP, the impacts of climate

change have become more evident and severe. The

2018 Fourth National Climate Assessment—a

Congressionally-mandated report by 13 federal

agencies—concluded that “the evidence of humancaused climate change is overwhelming and continues

to strengthen, that the impacts of climate change are

intensifying across the country, and that climaterelated threats to Americans’ physical, social, and

economic well-being are rising.”4 In 2021 “the U.S.

experienced 20 separate billion-dollar weather and

climate disasters that killed at least 688 people—the

most disaster-related fatalities for the contiguous U.S.

since 2011.”5

4 U.S. Global Change Research Program, Fourth National

Climate Assessment, Volume II: Impacts, Risks, and Adaptation

in

the

United

States

36

(2018),

https://www.globalchange.gov/nca4; see also Global Change

Research Act of 1990, 15 U.S.C. §§ 2921-2961.

5 National Oceanic and Atmospheric Administration, U.S.

saw its 4th-warmest year on record, fueled by a record-warm

December (Jan. 10, 2022), https://www.noaa.gov/news/us-sawits-4th-warmest-year-on-record-fueled-by-record-warmdecember.

12

D. EPA Promulgates the Clean Power Plan

In 2015, EPA promulgated the CPP to address

existing power plants’ CO2 emissions. 80 Fed. Reg.

64,662 (Oct. 23, 2015), JA273. The CPP established

emissions guidelines under Section 7411(d) for the

fossil fuel-fired power plant source category, including

steam electric generators (primarily coal-fired plants)

and combustion turbines (primarily gas-fired plants).

JA483-90.

The CPP based its “best system of emission

reduction” on the primary techniques already used by

states and power companies to curtail CO2 emissions

from existing power plants. Relying on extensive

stakeholder input, EPA determined the “best system”

was a combination of three “building blocks”: (1)

improving efficiency (heat rate) at coal-fired plants;

(2) substituting electricity generation from loweremitting gas plants for generation from higheremitting coal plants; and (3) substituting generation

from new zero-emitting renewable energy sources for

generation from coal- and gas-fired plants. JA298-99.

EPA found that these measures, at the selected level

of stringency, were widely employed in practice,

achieved emission reductions cost-effectively, and

would not adversely affect the reliable supply of

electricity. JA654-90. The agency identified other

technologies, such as carbon capture and co-firing

natural gas with coal, that were “technically feasible

and within price ranges that the EPA has found to be

cost effective,” but determined that the three

13

“building block” measures in combination were less

expensive. JA578.

EPA applied the “best system” to quantify the

degree of CO2 emission limitation achievable by

covered sources. The agency set limits in the form of

two uniform emission rates for coal and gas plants

respectively, to be phased in from 2022 to full

implementation in 2030. JA301. EPA determined that

each plant could achieve the applicable limit at a

reasonable cost by reducing its own emissions and by

acquiring “emission rate credits” from expanded

lower-emitting or new zero-emitting generation, thus

reducing its adjusted CO2 emission rate to meet the

limit. JA690-92, 969-71. EPA also provided states

with considerable flexibility in developing their plans,

giving states the option to apply the uniform rates to

individual sources within the state, or to adopt

trading programs or other compliance strategies to

meet equivalent state goals. JA1063-88.

In 2015 EPA projected that, upon full

implementation of the CPP, power sector CO 2

emissions in 2030 would be 32 percent below 2005

levels.6 JA354. The agency estimated that the CPP’s

climate and health benefits (projected at $19 to $29

billion in 2025 and $32 to $48 billion in 2030) would

vastly outweigh its compliance costs (projected at $1.0

In 2015, power sector CO2 emissions were already 12

percent below 2005 levels. U.S. Energy Information

Administration,

Today

in

Energy

(May

9,

2016),

https://www.eia.gov/todayinenergy/detail.php?id=26152.

6

14

to $3.0 billion in 2025 and $5.1 to $8.4 billion in 2030).

JA354-56. As discussed infra pp. 16-17, EPA in 2015

greatly overestimated the CPP’s effect and costs, as

the CPP’s emission-reduction projections were

achieved more than a decade ahead of schedule, and

with no Section 7411(d) regulation at all.

States and industry parties challenged the CPP in

the D.C. Circuit. Asserting that the rule would be

extremely costly and would prompt immediate largescale coal retirements,7 the petitioners sought an

emergency stay of the CPP, which was denied by the

D.C. Circuit, Order, West Virginia v. EPA, No. 151363 (D.C. Cir. Jan. 21, 2016), ECF No. 1594951, but

granted by this Court in February 2016, West Virginia

v. EPA, 577 U.S. 1126 (2016). These challenges to the

CPP were held in abeyance following a change of

administration, and ultimately dismissed as moot

after the new administration’s repeal and

replacement rule took effect. Order, West Virginia v.

EPA, No. 15-1363, (D.C. Cir. Sept. 17, 2019), ECF No.

1806952.

See, e.g., Coal Indus. Appl. for Immediate Stay at 4,

Murray Energy Corp. v. EPA, No. 15A778 (U.S. Jan. 27, 2016)

(citing Seth Schwartz, Evaluation of the Immediate Impact of the

Clean Power Plan Rule on the Coal Industry, Energy Ventures

Analysis (Oct. 2015)); States Appl. for Immediate Stay at 46,

West Virginia v. EPA, No. 15A773 (U.S. Jan. 26, 2016) (citing

same).

7

15

E. EPA Repeals the Clean Power Plan, and

Replaces It with the ACE Rule, Based

Solely on a Newly Constrained Legal

Interpretation

In July 2019, EPA finalized the rulemaking at

issue here, which repealed the CPP and replaced it

with the ACE Rule. 84 Fed. Reg. 32,520 (July 8, 2019),

JA1725. EPA based its CPP repeal on a single ground:

a new interpretation of the Act, under which Section

7411 unambiguously limits the best system of

emission reduction to emission controls applied “to

and at the level of the individual source.” JA1731,

1769. EPA’s General Counsel explained at the time:

“We have not chosen to ask the Court to defer to our

policy judgment. We are asking the court to rule on

the face of the statute. It’s a bold move.”8

The consequence of EPA’s new “to and at”

limitation was not only to prohibit any reliance on

shifting generation between fossil-fueled power plants

and renewable energy facilities that were outside the

designated Section 7411 source category. It reached

even further to also bar the agency—and states and

industry—from any use of economic incentives such

as emissions averaging and trading, even among

fossil-fueled power plants in the same source category,

Lee Logan, Facing Risks, EPA’s Counsel Defends ‘Bold’

ACE Rule Legal Interpretation, INSIDE EPA (Aug. 2, 2019),

https://insideepa.com/daily-news/facing-risks-epa-s-counseldefends-bold-ace-rule-legal-interpretation.

8

16

when establishing and complying with standards. 9

Prohibiting any averaging or trading tools conflicted

with past EPA actions under Section 7411(d),

including regulations for nitrogen oxide emissions

from municipal waste combustors, 60 Fed. Reg.

65,387, 65,402 (Dec. 19, 1995), and for mercury

emissions from coal-fired power plants, 70 Fed. Reg.

28,606, 28,620 (May 18, 2005), vacated on other

grounds, New Jersey v. EPA, 517 F.3d 574 (D.C. Cir.

2008). See Power Cos. Br. 38-41.

In the 2019 rules, EPA also acknowledged

“significant changes in the electric sector” that had

occurred since EPA finalized the CPP in 2015.

JA1675. These changes included “large-scale market

trends” that were “anticipated to result in the

continued decline of coal-fired generation and

capacity,” and an expectation that renewable energy

sources would “account for a significant portion of all

new capacity into the future.” JA1675, 1679. Power

sector CO2 emissions were also declining accordingly:

EPA observed that, “[e]ven after the CPP was stayed,”

sources in 2018 were “30 percent below 2005 levels,”

on the verge of meeting the CPP’s 2030 projections.

9 See, e.g., JA1896 (“In this final action, the EPA determines

that: Neither (1) averaging across designated facilities located at

a single plant; nor (2) averaging or trading between designated

facilities located at different plants are permissible measures for

a state to employ in establishing standards of performance for

existing sources or for sources to employ to meet those

standards.”); see also JA1903 ("Accordingly, trading is not

permissible under CAA Section [74]11.").

17

JA1690-91. As a result—and in contrast to the CPP

challengers’ earlier claims of substantial harm—EPA

concluded that repealing the CPP was “not

anticipated to have a meaningful effect on emissions

of CO2 or other pollutants or regulatory compliance

costs.” JA1719-20. In fact, 2019 power sector

emissions were 32 percent below 2005 levels,

achieving the CPP’s 2030 projections more than a

decade ahead of schedule.10

The ACE Rule, which EPA promulgated to replace

the CPP, reflected EPA’s new limited view of its

authority under Section 7411. For existing coal-fired

power plants, EPA determined that the best system of

emission reduction could include only minor

improvements to plants’ operational efficiency.

JA1787. The ACE Rule did not specify any minimum

emission limitation for performance standards in

state plans, instead providing only an advisory list of

seven “candidate technologies” to improve plant

efficiency. JA1808. EPA directed states to “evaluate

the applicability” of these “candidate technologies” to

each source in the state, and then derive an individual

standard for each unit. JA1870. However, EPA did not

mandate any minimum level of efficiency

improvement, and indeed confirmed that standards

need not reflect any efficiency or emissions

improvement at all. JA1808-09, 1887.

U.S. Energy Information Administration, Today in

Energy (June 9, 2021), https://www.eia.gov/todayinenergy/

detail.php?id=48296.

10

18

EPA rejected other available measures that would

have offered far greater emission reductions while

still comporting with the ACE Rule’s newly

constrained statutory interpretation. See, e.g.,

JA1839-44 (rejecting co-firing with natural gas);

JA1853-58 (rejecting carbon capture). According to

EPA’s own analysis, the ACE Rule’s minimal “best

system of emission reduction” would achieve little, if

any, emission reduction. EPA’s one modeled scenario

projected that the Rule would reduce CO2 emissions

from coal plants by approximately one percent

relative to business as usual, and would reduce overall

power-sector emissions by considerably less than one

percent.11

Even though EPA continued to include existing

gas-fired power plants in the listed category of

sources, it did not identify any best system of emission

reduction for them under the ACE Rule and thus left

those sources unregulated. JA1791-92.

11 See EPA, Regulatory Impact Analysis for the Repeal of the

Clean Power Plan and the Emission Guidelines for Greenhouse

Gas Emissions from Existing Electric Utility Generating Units,

at 3-11, tbls. 3-3 & 3-15, tbl. 3-8 (June 2019) [hereinafter ACE

RIA] https://www.epa.gov/sites/default/files/2019-06/documents/

utilities_ria_final_cpp_repeal_and_ace_2019-06.pdf.

19

F. The Court of Appeals Reviews, and

Rejects, EPA’s Sole Ground for the

Repeal

State and local governments, power companies,

environmental and public health groups, and clean

energy trade associations petitioned the D.C. Circuit

for review of the CPP Repeal and the ACE Rule. The

court of appeals majority confined its review to the

“sole ground” EPA asserted for the repeal—i.e., that

Section 7411’s text unambiguously constrains EPA to

determine a best system of emission reduction using

only improvements “at and to existing sources.”

JA103. The court granted the petitions for review,

concluding that “nothing in the text, structure,

history, or purpose of Section 7411 . . . compels the

reading the EPA adopted.” JA131.

The court also explained that the dispute did not

“fit the major-question mold of prior cases.” JA139. It

noted that EPA had “not just the authority, but a

statutory duty” to regulate greenhouse gas emissions

from power plants, and the Act already “contains its

own limits on regulation, like mandating that the

EPA take into account such factors as available

technology and the cost of compliance.” JA138-39. The

court concluded that “each critical element of the

Agency’s regulatory authority on this very subject has

long been recognized by Congress and judicial

precedent.” JA136.

Because EPA defended the CPP Repeal and ACE

Rule solely on an erroneous legal interpretation, the

20

court did not decide whether the ACE Rule approach

was “permissible . . . as a matter of agency discretion.”

JA102-03. Nor did it address numerous record

challenges to that rule. Likewise, the court did not

consider the legality of the CPP itself, which was no

longer before it.

The dissent below would have held that EPA

lacked authority to promulgate either the CPP or the

ACE Rule because power plants’ emissions of mercury

and other hazardous air pollutants are regulated

under Section 7412. JA217.

Shortly after the D.C. Circuit’s ruling, the

incoming Administrator announced that, under his

leadership, EPA would undertake a new rulemaking

to address power plant CO2 emissions, starting from

a “clean slate.”12 EPA moved for a partial stay of the

court’s mandate, explaining that the agency did not

intend to implement either the CPP or the ACE Rule

and stating that “no Section 7411(d) rule should go

into effect until [a new rulemaking] is completed.”

JA258. The agency explained that the CPP’s initial

compliance deadlines had “long since passed” and that

“ongoing changes in electricity generation” mean that

the CPP’s 2030 emission-reduction projection has

“already been achieved by the power sector.” JA265.

Granting EPA’s unopposed motion, the D.C. Circuit

ordered that the CPP Repeal remain in effect “until

Hearing on the Nomination of Michael S. Regan to be

Administrator of the Environmental Protection Agency Before the

S. Comm. on Envt. & Pub. Works, 117th Cong. 42-43 (2021).

12

21

the EPA responds to the court’s remand in a new

rulemaking action.” JA271. Thus, with the ACE Rule

vacated and the CPP Repeal still in place, JA272, no

Section 7411(d) regulation for CO2 emissions from

existing power plants is in effect: states face no

planning deadlines, and regulated entities face no

compliance obligations.

SUMMARY OF ARGUMENT

The CPP is not, and has never been, in effect. The

lower court ordered that it remain inoperative until

EPA completes a new rulemaking. Thus, neither

petitioners nor any other parties are subject to any

obligations under the CPP (or under the ACE Rule

that replaced it). The CPP’s deadlines for submitting

state plans passed more than three years ago, and its

emission-reduction goals have been rendered

immaterial, even in the absence of regulation.

Petitioners have therefore failed to satisfy their

burden to establish standing to invoke this Court’s

jurisdiction. No petitioner is, has been, or will be

injured by the inoperative CPP. Nor has any

petitioner demonstrated that it will be reinstated;

that any reinstatement, should it somehow occur,

would harm them; or that the vacatur of the ACE Rule

injures them either. The parties’ disputes about the

CPP Repeal have been overtaken by events and no

longer present a live case or controversy.

Similarly

non-justiciable

are

petitioners’

hypotheticals about regulations that EPA might adopt

22

in the future. The court of appeals’ decision did not

pass upon such regulations or bless any particular

regulatory design. Review of forthcoming regulations

must await their final promulgation and the

availability of a new administrative record.

Even if this dispute were justiciable, petitioners’

claims are meritless. The court of appeals properly

confined its review to the sole ground asserted in the

CPP Repeal—i.e., that Section 7411 unambiguously

precludes EPA from considering any emissionreduction systems that do not apply “to and at” a

source. Section 7411 does not contain the unwritten

“to and at” restriction the CPP Repeal posited. When

Congress wished to add any such restriction in the

Act, it did so expressly, by using words like “retrofit”

or “technology.” Petitioners’ labored efforts to insert

such a restriction into Section 7411 lack support in the

statute. And they would unreasonably preclude not

just the CPP, but any kind of emissions averaging and

trading among sources—prohibiting common and

cost-effective measures that have long been used

throughout the power industry and that EPA used in

multiple prior rules.

Unable to locate their preferred restriction in the

statute, petitioners resort to invoking major questions

principles. But such principles have never applied in

a situation resembling the one here—a dispute about

the repeal of a never-implemented rule that EPA

found would impose “no costs” even if implemented. In

any event, the major questions cases do not change

23

the outcome. This Court has already held that Section

7411 “speaks directly” to power plants’ emissions of

CO2 and assigns to EPA the decisions “whether and

how” to regulate them. AEP, 564 U.S. at 424, 426

(emphasis added). Petitioners simply ignore those

prior holdings.

Finally, North Dakota alone contends that the

CPP was unlawful because it established binding

emission limits in its guidelines. This Court should

not consider the claim, which EPA did not assert as a

basis for the CPP Repeal and which the court of

appeals therefore did not address. The claim is wrong,

in any event. Congress modeled Section 7411(d) on the

cooperative federalism framework that appears

elsewhere in the Act. North Dakota would upend that

archetypical framework, however, and invite the

pollution problems that Congress designed the

modern Clean Air Act to address.

ARGUMENT

I.

These Cases Are Not Justiciable

These petitions should be dismissed because they

do not present a justiciable case or controversy.

“Article III demands that an ‘actual controversy’

persist throughout all stages of litigation.”

Hollingsworth v. Perry, 570 U.S. 693, 705 (2013)

(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013)); see also DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 340 (2006) (the Court has an “obligation” to

assure itself of Article III jurisdiction). This means

24

both that standing must be shown to invoke this

Court’s jurisdiction, and that a case must be

dismissed if it becomes moot. Arizonans for Off. Eng.

v. Arizona, 520 U.S. 43, 64-73 (1997). And when an

underlying cognizable injury dissipates during

litigation, parties cannot substitute an alternative

theory of injury premised on contingent future actions

that have not yet taken shape. Trump v. New York,

141 S. Ct. 530, 533-35 (2020) (per curiam). Here,

petitioners identify no redressable injury caused by

the disposition below; recent events and ongoing

changes in the industry have mooted the parties’

dispute over the CPP Repeal; and any complaints

about future EPA rulemakings are unripe. The cases

have therefore each “lost [their] character as a

present, live controversy of the kind that must exist if

[the Court is] to avoid advisory opinions.” Hall v.

Beals, 396 U.S. 45, 48 (1969) (per curiam).

1. No petitioner has satisfied its burden to

“explain how the elements essential to standing are

met.” Va. House of Delegates v. Bethune-Hill, 139 S.

Ct. 1945, 1951 (2019). Although most standing cases

consider whether a plaintiff met those elements when

initiating suit, Article III also requires that a party

have standing when invoking an appellate court’s

jurisdiction to review a judgment below. Id.;

Hollingsworth, 570 U.S. at 705. And parties that do

not seek such review cannot supply the requisite

standing. See Diamond v. Charles, 476 U.S. 54, 63-64

(1986). This Court has thus “repeatedly recognized”

that when an intervenor below asks this Court to

25

reverse a judgment that the primary party did not

challenge, Bethune-Hill, 139 S. Ct. at 1951, the

intervenor must show that it “independently ‘fulfills

the requirements of Article III’”—i.e., that it has been

injured by the disposition below, and that a favorable

ruling from this Court would redress the injury,

Wittman v. Personhuballah, 578 U.S. 539, 543-44

(2016) (quoting Arizonans for Off. Eng., 520 U.S. at

65). The petitioning party also “bears the burden” of

establishing a non-obvious redressable injury in this

Court through “record evidence.” Id. at 545.

Petitioners here have failed to do so.

a. Consider, first, the petitioning coal companies

in Nos. 20-1531 and 20-1778. Below, these companies

argued primarily that coal-fired power plants were

exempt from regulation under Section 7411(d). See

JA176-98. This Court declined to grant review of that

question, however, 142 S. Ct. 418 (limiting Case No.

20-1778 to Question 2), and neither company

identifies any injury that would be redressed by a

favorable decision on the remaining questions

presented. See Town of Chester, N.Y. v. Laroe Estates,

Inc., 137 S. Ct. 1645, 1650 (2017) (“standing is not

dispensed in gross”).

The companies cite no evidence, for example, that

the court of appeals’ disposition of the CPP Repeal will

result in any decreased consumption of their coal. The

CPP is not—and never has been—in effect. Nor do the

companies show any “serious likelihood” that the CPP

will take effect in the future. TransUnion LLC v.

26

Ramirez, 141 S. Ct. 2190, 2212 (2021). EPA does not

intend to resurrect the CPP, Fed. Resps. Br. in Opp’n

16-17, and the D.C. Circuit ordered that EPA’s repeal

remain in effect until it completes a superseding

rulemaking, JA270-71. One of the companies itself

describes the CPP as a “relic” that is “years out of

date” and “unlikely” ever to be reinstated. N. Am. Coal

Pet. 18. And even if the CPP were somehow to take

effect, the coal companies “have not identified record

evidence” that it would injure them. Wittman, 578

U.S. at 545. To the contrary, the record before this

Court indicates that the CPP’s emission-reduction

targets are now immaterial, JA269, such that, as EPA

put it in 2019, there would likely be “no difference

between a world where the CPP is implemented and

one where it is not,” JA1921.

Petitioner North American Coal contends that its

case is nonetheless justiciable because the Court could

reinstate the ACE Rule, the vacatur of which

purportedly “harms Petitioner.” N. Am. Coal Cert.

Reply 1, 3. But the company appeared below only as a

petitioner challenging the ACE Rule. And its present

contention is contrary to the only evidence submitted

in support of its standing: a declaration asserting that

the ACE Rule harmed the company, and that “[t]hese

harms will be alleviated if the Rule is vacated.” Coal

Indus. Pet’rs Opening Br. at ADD3, Am. Lung Ass’n v.

EPA, No. 19-1140 (D.C. Cir. Apr. 17, 2020), ECF No.

1838666. Petitioner Westmoreland Mining Holdings

(which, unlike North American Coal, also intervened

to defend the CPP Repeal) submitted a similar

27

declaration below, id. at ADD4-ADD6, and continued

to base its standing before this Court on harms to the

company from the ACE Rule, Westmoreland Cert.

Reply 11. Neither company can thus now argue—nor

has either company attempted to show—that it would

benefit from reinstatement of the ACE Rule, which

EPA projected would decrease coal production

through 2035. ACE RIA at 3-25 to 3-26.

b. The petitioning states in Nos. 20-1530 and 201780 have likewise failed to “independently

demonstrate standing” before this Court. BethuneHill, 139 S. Ct. at 1951. These states did not submit

evidence or present argument in support of their

standing below. It may not have been incumbent on

them to do so as intervenors then, but the “situation

changed” when they invoked this Court’s jurisdiction

as petitioners. Id. And yet the states still marshal no

evidence supporting their standing to challenge the

disposition below, which does not require them “to do

or refrain from doing anything.” Hollingsworth, 570

U.S. at 705.

The only evidence here that arguably bears on the

states’ standing is now years out of date and not

traceable to the judgment below. See California v.

Texas, 141 S. Ct. 2104, 2118 (2021) (evidence of harm

from a materially different time period insufficient to

establish states’ standing). North Dakota has cited

evidence from its 2016 stay application, for example,

asserting that the CPP would have injured the state

had it taken effect on its original timeline. N.D. Pet.

17-18. Other states that sought a stay six years ago

28

also complained at that time about the burden of

preparing state plans to comply with the CPP. See,

e.g., States Appl. for Immediate Stay, 41-46, West

Virginia v. EPA, No. 15A773 (U.S. Jan. 26, 2016). But

no petitioning state identifies comparable evidence of

actual or imminent harm that it faces from the CPP

now, particularly following the lower court order

(which the states did not oppose, and which they do

not challenge here) that leaves the CPP’s repeal in

place until EPA completes a new rulemaking.

Even if the defunct CPP could somehow spring to

life, it is doubtful that it would still harm the

petitioner states, given “significant changes” in the

electric power sector and the fact that the “deadline

for state plan submittals in 2018 has already passed.”

JA1675, 1694. EPA projected in 2019 that, if the CPP

had taken effect then, it already would have been

“non-binding” in more than half the states, including

ten of those petitioning here, because emissions had

already fallen below the CPP’s targets. JA1673, 171719. EPA further explained that this projection was

conservative, as it did not account for recent market

developments, implementation delays, or interstate

trading, which were likely to eliminate any remaining

emission-reduction requirements in other states and

to render a reinstated CPP “non-binding entirely.”

JA1674-1719. Ongoing market trends and the

passage of time have made this outcome all the more

likely. Thus, irrespective of whether the petitioning

states had standing when they first intervened below,

they have not proffered the requisite evidence that

29

they “possess standing now.” Wittman, 578 U.S. at

544.13

2. For similar reasons, the parties’ dispute as to

the CPP Repeal has been overtaken by events and is

now moot. See Arizonans for Off. Eng., 520 U.S. at 6667 (distinguishing between an intervenor’s standing

to seek appellate review, and whether an originating

plaintiff’s claim has become moot). It is “not enough”

for purposes of Article III that a live controversy

existed “when suit was filed, or when review was

obtained in the Court of Appeals.” Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 477-78 (1990). Rather, to

support this Court’s jurisdiction, a claim must remain

live “at all stages of review.” Arizonans for Off. Eng.,

520 U.S. at 67. And here, for the reasons described

above, the parties’ dispute about the CPP Repeal has

“lost the essential elements of a justiciable

controversy.” Id. at 48. Reinstatement of the CPP now

cannot “reasonably be expected” to occur. Camreta v.

Greene, 563 U.S. 692, 711 (2011); see also N.D. Br. 33

n.2 (describing the CPP as a “legal nullity”). Nor

would that occurrence likely result in decreased

13 Alone among the states, North Dakota asserts standing to

seek reinstatement of the ACE Rule, N.D. Cert. Reply 1-11, but

it never explains how vacatur of that rule caused it any concrete

injury, nor how it would benefit from reinstatement. At most,

North Dakota vaguely suggests the rule’s vacatur somehow

harmed its sovereign authority to regulate emissions from coal

plants in the state. Id. at 3, 10. North Dakota identifies no state

regulation that it cannot adopt now, however, in the absence of

an EPA rule.

30

emissions in any event, given the ongoing changes and

trends in the power sector. Thus, although the parties

“continue to dispute the lawfulness” of the CPP

Repeal, those disputes are now “abstracted from any

concrete actual or threatened harm” and “fall[]

outside the scope” of Article III. Alvarez v. Smith, 558

U.S. 87, 93 (2009).

3. Because power plants are presently subject to

no regulation under Section 7411(d), several

petitioners instead press unripe complaints about

hypothetical future regulations that, they claim, the

judgment below authorizes. See, e.g., W. Va. Br. 19-26;

N. Am. Coal Br. 22-32. These petitioners misconstrue

the D.C. Circuit’s holding: that court did not “bless”

even the CPP, much less give EPA “unfettered”

authority in future Section 7411(d) rulemakings. See

supra pp. 18-20. Regardless, any prediction about

what regulations will result from EPA’s inchoate

rulemaking is “‘no more than conjecture’ at this time.”

Trump, 141 S. Ct. at 535 (quoting Los Angeles v.

Lyons, 461 U.S. 95, 108 (1983)). Petitioners make bold

assertions about what they expect EPA will do, but

the truth is they “cannot know” what regulations will

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

Conservation & Dev. Comm’n, 461 U.S. 190, 203

(1983). It would be “wholly novel,” and “amount to the

rendering of an advisory opinion,” for this Court to

pass upon regulations “not yet promulgated.” EPA v.

Brown, 431 U.S. 99, 104 (1977).

31

Instead, consistent with regular practice, the new

rulemaking process must first “run its course”—both

to sharpen the questions for the Court, Trump, 141 S.

Ct. at 536, and to shield it from unnecessary

entanglement in policy disputes until the agency’s

decision “has been formalized and its effects felt in a

concrete way,” Ohio Forestry Ass’n, Inc. v. Sierra Club,

523 U.S. 726, 732-33 (1998) (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967)). In the

meantime, petitioners will suffer no concrete harm, as

neither any extant rule nor the disposition below

requires them “to do anything or to refrain from doing

anything.” Id. at 733. If EPA’s new rule implicates any

of petitioners’ present concerns, petitioners can

challenge that rule in a new suit, 42 U.S.C.

§ 7607(b)(1)—including by seeking a stay, if

warranted. But contrary to petitioners’ contentions,

e.g., N. Am. Coal Cert. Reply 9, W. Va. Cert. Reply 6,

neither the costs of such further litigation, nor any

legal uncertainty that may exist in the interim,

suffices to “justify review in a case that would

otherwise be unripe.” Ohio Forestry, 523 U.S. at 735;

see also Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538

U.S. 803, 811 (2003).

Petitioners would prefer this Court’s review now,

of course, and some parties might feel that they need

to take steps in the meantime to prepare for “what

they think is likely to come in the form of new

regulations.” In re Murray Energy Corp., 788 F.3d

330, 335 (D.C. Cir. 2015). But such anticipatory costs

have “never been a justification” for courts to review

32

the scope of an agency’s statutory authority in the

midst of an ongoing rulemaking. Id. Instead, Article

III requires that courts “put aside” any impulse to

settle the merits of an important dispute “for the sake

of convenience and efficiency.” Hollingsworth, 570

U.S. at 704-05. Allowing parties to obtain judicial

review based on “hypothetical” future actions that

may not occur as anticipated, or that might not occur

at all, would “water[] down the fundamental

requirements of Article III.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 416 (2013).

In short, for reasons of standing, mootness, and

ripeness, these petitions do not present a “proper case

or controversy,” DaimlerChrysler, 547 U.S. at 341,

352, and therefore must be dismissed.

II. Section 7411 Does Not Contain the

Restriction That Was EPA’s Sole Basis for

Repealing the Clean Power Plan

EPA premised its repeal of the CPP on a novel

construction that Section 7411 restricts the “best

system of emission reduction” to measures applied “to

and at” the source. That restriction finds no support

in the statute. Instead, the Act calls on EPA to

evaluate emission-reduction measures used in

particular source categories, subject to express

constraints that do not include the Repeal’s atextual

invention. Petitioners’ attempts to find such a

“fenceline” restriction in various and sundry cues fall

short. Moreover, this restriction would unreasonably

bar commonplace, cost-effective trading and

33

averaging measures among regulated sources, forcing

EPA (and states and industry) to rely on emissionreduction techniques that are both more expensive

and less effective. This Court should reject the

restriction, just as the court of appeals correctly did

below.

1. Assuming these cases are justiciable, the only

actions under review are those EPA took in 2019—the

CPP Repeal and the replacement ACE Rule. It is a

“foundational principle of administrative law” that

courts must limit their review of agency action to the

“grounds that the agency invoked when it took the

action.” Dep’t of Homeland Sec. v. Regents of the Univ.

of Cal., 140 S. Ct. 1891, 1907 (2020) (quoting Michigan

v. EPA, 576 U.S. 743, 578 (2015)); see SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947). The actions at issue

here relied on a single statutory ground: that Section

7411 “unambiguously limits the [best system of

emission reduction] to those systems that can be put

into operation at a building, structure, facility or

installation.” JA1746; see also JA1787, 1796, 1893 (“at

and to”); JA1769, 1893 (“to and at”); JA1836 (“at or

to”); JA1758 n.65 (“to or at”). The court of appeals

properly confined its review to this asserted ground,

and therefore did not consider (let alone resolve)

whether EPA could have repealed the CPP for other

reasons, or whether the CPP itself was arbitrary,

capricious, or otherwise contrary to law. 42 U.S.C.

§ 7607(d)(9)(A). Litigation raising such claims was

previously dismissed as moot. Supra p. 14. And here,

the court of appeals correctly concluded that Section

34

7411 does not contain the atextual “to and at”

restriction that EPA invoked in the CPP Repeal.

2. Section 7411 assigns to EPA, as the “expert

agency,” the “complex balancing” of considerations,

AEP, 564 U.S. at 427-29, that goes into determining

the “best system of emission reduction” for designated

categories of stationary sources. 42 U.S.C.

§ 7411(a)(1). Congress knew that Section 7411 would

apply to a wide array of different source categories

and pollutants, from sewage sludge incinerators to

grain elevators to magnetic tape coating facilities, and

scores more. See, e.g., 40 C.F.R. Pt 60, Subparts CbUUUUa. In that context, Congress sensibly declined

to spell out particular pollution-reduction techniques

for each of these many industrial categories and

pollutants. Instead, by using the term “system,”

Congress directed EPA to examine means of reducing

emissions across a diverse, evolving range of

categories. A. Scalia & B. Garner, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 32-33 (2012)

(“general terms… are adopted to cover a multitude of

situations that cannot practicably be spelled out in

detail or ever foreseen”). It assigned to EPA’s expert

judgment the technical and record-dependent

questions concerning which pollution-reduction

techniques are “adequately demonstrated,” taking

account of cost and other specified factors. 42 U.S.C.

§ 7411(a)(1). As the court of appeals recognized, these

statutory criteria Congress enacted “simply do not

include” a limitation that the system be contained

35

within the physical confines of a single regulated

source. JA106.

Section 7411’s text, structure, and function thus

make it highly improbable that Congress would have

impliedly restricted the range of adequately

demonstrated systems of emission reduction that EPA

may consider in seeking the “best” one. And that is

particularly so given that Congress clearly “knew how

to draft the kind of statutory language” that the CPP

Repeal “seeks to read into” Section 7411. State Farm

Fire & Cas. Co. v. U.S. ex rel. Rigsby, 137 S. Ct. 436,

444 (2016). In multiple provisions of the Clean Air Act,

Congress expressly limited pollution-control measures

to those integrated into the physical design or

processes of a source. For instance, another provision

applicable to stationary sources directs EPA to

predicate standards upon the “best available retrofit

technology.” 42 U.S.C. § 7491(b)(2)(A), (d)(2)

(emphasis added). A different section of the Act

requires EPA to consider “the retrofit application of

the best system of continuous emission reduction,

taking into account available technology.” Id.

§ 7651f(b)(2). And yet another provision requires EPA

to identify the “best available control technology” at

the source level. Id. § 7479(3); see also id. § 7412(g)(2)

(requiring source-specific “maximum achievable

control technology” for hazardous air pollutants with

36

comparatively localized health effects); Power Cos. Br.

32-35.14

These other provisions of the Act make the

“absence” of any comparable textual limitation in

Section 7411(a)(1) “all the more telling.” Romag

Fasteners, Inc. v. Fossil Grp., Inc., 140 S. Ct. 1492,

1495 (2020). This Court generally does not assume

that Congress “omitted from its adopted text

requirements that it nonetheless intends to apply,”

especially when, as here, “Congress has shown

elsewhere in the same statute that it knows how to

make such a requirement manifest.” EPA v. EME

Homer City Gen., L.P., 572 U.S. 489, 510 (2014)

(quoting Jama v. ICE, 543 U.S. 335, 341 (2005)).

3. Particularly against this statutory backdrop,

petitioners’ various arguments for why the “best

system of emission reduction” can include only

“measures implemented at the source level,” W. Va.

Br. 13; see N.D. Br. 47-48; N.A. Coal. Br. 33-40, are

14 Even within Section 7411, Congress has paid particularly

close attention to the contours of the best system. In 1977

Congress inserted a modifier—the “best technological

system…”—but solely for new sources. Pub. L. No. 95-95,

§ 109(c)(1)(A), 91 Stat. 685, 700 (1977) (emphasis added). In

1990, Congress removed the word “technological” for new sources

and reverted to the original formulation for both new and

existing sources. Pub. L. No. 101-549, § 403(a), 104 Stat. 2399,

2631 (1990). The current version of Section 7411 also retains

requirements concerning “technological system[s] of continuous

emission reduction” for certain applications not at issue in this

case. 42 U.S.C. § 7411(a)(7); see, e.g., id. § 7411(b)(5), (j)(1).

37

unavailing. As explained in greater detail in

Respondent States and Municipalities’ brief (at Sec.

I.A.1.b), the scattered words and phrases at which

petitioners grasp would be a “surprisingly indirect

route” for Congress to have conveyed such an

“important and easily expressed message.” Cnty. of

Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1474

(2020) (quoting Landgraf v. USI Film Prods., 511 U.S.

244, 262 (1994)).

First, the court of appeals properly rejected the

convoluted contention, cf. W. Va. Br. 37-38, that the

term “application” in Section 7411(a)(1) implies the

indirect object “any existing source” in Section

7411(d)(1). JA110-116. As the court explained, even

assuming (wrongly) that an indirect object must be

found, petitioners’ candidate (“any existing source”) is

not a plausible referent. Id.; see also States & Muns.

Br. Sec. I.A.1.b.

Second, the terms “achievable” and “adequately

demonstrated” (see W. Va. Br. 34-35; N.D. Br. 48)

likewise do not limit a permissible “system of emission

reduction” to measures implemented “to and at” each

source. Systems based on emissions trading, for

example, manifestly can yield “achievable” emission

limits and are, in fact, already “adequately

demonstrated” for the source category. See Power Cos.

Br. Sec II.B.; see also supra pp. 15-16 (noting that EPA

had relied on such commonplace and cost-effective

trading and averaging measures in prior Section 7411

rules).

38

Third, contrary to petitioners’ suggestion

otherwise, W. Va. Br. 33-34; N. Am. Coal Br. 34-35;

Westmoreland Br. 35-36, neither the phrase

“standard of performance” nor “existing source”

requires EPA to guarantee that sources maintain

historical levels of output (nor does either phrase in

any way support petitioners’ claimed “to or at”

requirement). “Existing” merely distinguishes

between new and modified sources, subject to direct

federal regulation under Section 7411(b), and alreadybuilt sources, which are regulated through state plans

issued under Section 7411(d)(1). “Performance” in this

context plainly refers to a source’s quantitative

emissions performance, not its production or output

levels. See 42 U.S.C. § 7411(a)(1) (“standard of

performance” means a “standard for emissions”

(emphasis added)); see also id. § 7602(k) (defining

“emission standard” as a “requirement . . . which

limits the quantity, rate or concentration of

emissions”). A source may comply with the emission

limit specified in a standard of performance through

any means that reduces emissions. 15 And even

standards based on inside-the-fenceline measures,

such as end-of-stack pollution controls, would violate

15 In this respect, Section 7411 distinguishes standards of

performance from “design, equipment, work practice, or

operational standard[s],” which must be met in the specific

manner prescribed by regulation. 42 U.S.C. § 7411(h)(1), (2).

EPA is permitted to set design standards only when performance

standards cannot be issued because it is not practicable to

confine or measure sources’ emissions. Id.

39

petitioners’ output-maintenance conception, as such

standards commonly affect how much plant operators

choose to run their plants, or even whether they

continue to operate at all. Power Cos. Br. Sec. II.B.;

see also Westmoreland Br. 33-34 (acknowledging

onsite controls’ “incidental impacts on generation”).

Fourth, petitioners wrongly assert that various

terms in Section 7411(d)(1) govern the scope of the

“best system of emission reduction” that EPA must

identify under Section 7411(a)(1). See, e.g., N. Am.

Coal Br. 34-35 (“for”); W. Va. Br. 34-35 (“source”). But

there is “no basis—grammatical, contextual, or

otherwise”—to read the language of Section 7411(d)

“upstream” in that way. JA106; see States & Muns.

Br. Sec. I.A.1.b. And even if there were, the terms still

do not establish the limitations petitioners are

seeking. That Section 7411(d)(1) requires standards of

performance for any existing source “in the singular,”

N. Am. Coal Br. 33-34, for example, does not dictate

how the “best system” must be determined in Section

7411(a)(1). It simply means that performance

standards must cover each such existing source

within the state, not leaving any unregulated.

It is also telling that Congress used the less

restrictive preposition “for an existing source” in

Section 7411(d)(1), which does not import a “fenceline”

limit, in contrast to the prepositions “to” or “at” that

petitioners try to smuggle into the statute. A

performance standard that permits a source to comply

through use of marketable emission credits, for

40

example, is plainly a standard “for” that source. See

JA107. And Section 7411(d) notably cross-references

Section 7410, which expressly authorizes the use of

“economic incentives such as fees, marketable

permits, and auctions of emissions rights,” 42 U.S.C.

§ 7410(a)(2). A blanket ban on using such tools in

Section 7411(d)—which is the consequence of the CPP

Repeal’s

interpretation—would

contravene

Congress’s decision to allow EPA and states to carry

out that provision using the same kinds of emissionreduction measures that are available under Section

7410. That result would needlessly and unreasonably

raise the cost and reduce the effectiveness of

regulation.

4. For all these reasons, the court of appeals

correctly concluded that the CPP Repeal’s

interpretation of Section 7411 was “simply not

supported by the text, let alone plainly and

unambiguously required by it.” JA117-18. As a result,

the court held the rule invalid and remanded it to the

agency.

The absence of a “to and at” restriction in the

statute does not leave EPA’s determination of the best

system unconfined, however. In addition to the

express limitations in Section 7411(a)(1) mentioned

above, EPA’s choice must meet the tests of reasoned

decisionmaking and be adequately supported by the

record. 42 U.S.C. § 7607(d)(9). These constraints are

real and substantial. See infra Sec. III.b.

41

Moreover, rejecting the CPP Repeal’s atextual

and unreasonably rigid restriction does not require

resolving the legality of the CPP or any of its

constituent elements. Petitioners complain that the

CPP’s “best system” went beyond prior applications of

emissions averaging and trading by predicating its

standards for coal plants in part on emissionreduction credits made available by new renewable

generating facilities, which are not “stationary

sources” of air pollution, see 42 U.S.C. § 7411(a)(3),

and thus are not in the EPA-designated category of

fossil-fueled power plants. This particular aspect of

the CPP is the target of petitioners’ repeated claim

that the CPP unlawfully required coal plants to

purchase credits from new, non-emitting power

generators. E.g., W. Va. Br. 1, 7, 8, 25; N. Am. Coal Br.

24; N.D. Br. 9.

The CPP, however, was not before the lower court.

Consequently, the court of appeals did not consider

whether that rule’s reliance on new renewable

electricity generation—or, for that matter, any other

aspect of that rule—exceeded EPA’s authority or was

arbitrary and capricious. Supra pp. 18-20. Rather, it

properly confined its review to the grounds that EPA

asserted in the CPP Repeal. Should EPA, in a future

rulemaking, adopt any measures that resemble

features of the CPP, its action will be subject to

judicial review. But this Court should reject

petitioners’ invitation to pass judgment now on the

legality of a hypothetical future rule.

42

III. Reliance on Major Questions Principles Is

Misplaced

Unable to locate their preferred reading of Section

7411 in the statute, petitioners contend that either

the CPP or some future EPA rule would run afoul of

the Court’s major questions cases. This contention

confuses what rule is before the Court, misconstrues

the Court’s relevant cases, and would not provide a

basis for upholding the EPA actions at issue in any

event.

1. The agency actions before this Court are the

CPP Repeal and the ACE Rule—not the CPP itself, or

any future rule that EPA might adopt. And contrary

to petitioners’ heavy reliance on major questions

cases, the record before this Court—which is the

agency’s record at the time it took the repeal action

under review—indicates that the CPP would not have

had any “vast ‘economic or political significance.’”

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

302, 324 (2014) (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159 (2000)). In fact, that

record shows that EPA’s initial projections of the

CPP’s impact were vastly overstated. And it also

shows that petitioners’ claims, made originally in

support of the 2016 stay but repeated here, were even

far more exaggerated. Supra pp. 16-18. EPA thus

concluded in 2019 that there was likely “no difference

between a world where the CPP is implemented and

one where it is not,” JA1921, and that repealing the

CPP would “not . . . have a meaningful effect on

43

emissions of CO2 or other pollutants or regulatory

compliance costs.” JA1719-20.

This Court has never applied major questions

principles to an agency rule that is defunct, not under

review, and that would have no meaningful impact

even if it were reinstated. Nor has the Court ever

applied such principles to a hypothetical future rule

whose impacts are not yet knowable. See Power Cos.

Br. Sec. I.A. Regardless, even if the Court did consider

those principles here, they still would not affect the

outcome.

2. Petitioners invoke the Court’s expectation that

Congress will “speak clearly” when assigning to an

agency certain highly significant “decisions.” UARG,

573 U.S. at 324. But this Court held in AEP, over ten

years ago, that Section 7411 “speaks directly” to

power plant CO2 emissions; and further, that

Congress assigned to EPA the “decisions” both

“whether and how” to regulate them. 564 U.S. at 424,

426 (emphasis added). Petitioners conspicuously

ignore these key holdings.

The major questions cases are thus simply

inapposite here. Particularly in light of AEP, this

dispute does not resemble the types of category errors

at issue in those cases, each of which involved agency

actions that would “significantly expand [an agency’s]

regulatory authority” into new areas that “fall[]

outside of [its] sphere of expertise.” Nat’l Fed’n of

Indep. Bus. v. OSHA, 595 U.S. __ , slip op. at 6-7

(2022) (per curiam) (rejecting emergency vaccination

44

standard where agency had authority to promulgate

“workplace safety standards, not broad public health

measures”); see also, e.g., Ala. Ass’n of Realtors v.

HHS, 141 S. Ct. 2485, 2488 (2021) (per curiam) (public

health agency’s eviction moratorium would “intrude”

in landlord-tenant relationships in a way “markedly

different” from other authorized regulatory

measures); UARG, 573 U.S. at 324 (EPA

interpretation would cause an “enormous and

transformative expansion” of regulatory authority by

applying a permitting program intended for a few

hundred large sources to millions of smaller ones).

Here, by contrast, power plants have long been

one of the most intensively regulated sources of air

pollution under the Clean Air Act. Indeed, regulating

those sources’ emissions, under several different

provisions of the Act, is one of EPA’s core functions.

E.g., 42 U.S.C. §§ 7410-12, 7470-79, 7491-92, 7501a et

seq., 7651-51o. And this Court has further recognized

that Section 7411 assigns the decision of “how to

regulate” power plants’ CO2 emissions, specifically, to

EPA’s “expert determination.” AEP, 564 U.S. at 426.

a. EPA’s determination of the “best system of

emission reduction” for power plant CO2 emissions

thus “does not fit the major-question mold of prior

cases.” JA138. Petitioners nonetheless claim that the

CPP was so “significant” that Congress needed to preapprove the specific system that EPA chose. But

absent the kind of category error described above,

nothing within the grab-bag of various, imprecise

45

factors petitioners invoke—such as compliance costs,

the age of the statute, or the degree of subsequent

congressional attention, e.g., W. Va. Br. 20,

Westmoreland Br. 30—can justify such an onerous

and unprecedented requirement.16

First, Congress knew that Clean Air Act

regulations could impose significant costs on

polluters, cf. Union Elec., 427 U.S. at 256-57, and it

specifically directed EPA to consider “cost” when

establishing emission limits based on the best system

of emission reduction. See 42 U.S.C. § 7411(a)(1).

Compliance costs might therefore be relevant in

determining whether a Section 7411 rule is arbitrary

and capricious, id. § 7607(d)(9)(A), but they cannot be

a principled threshold barrier to agency rulemaking

altogether. See States & Muns. Br. Sec. II.A.2. Indeed,

this case highlights why cost would be an

unpredictable basis for imposing such a barrier: As

noted above, projections about the CPP’s effect proved

grossly overstated. Contrary to petitioners’ claims

16 Nor can any such requirement be justified by federalism

principles. See W. Va. Br. 26-31. Pollution limits for regulated

sources may affect private sector decisions on power plants’

dispatch order or resource mix, but those effects do not usurp

other state authority or require additional authorization from

Congress. See FERC v. Elec. Power Supply Ass’n, 577 U.S. 260,

286, 295-96 (2016) (rejecting argument that demand response

regulation was a federal “power grab,” and distinguishing

regulations that “inevitably[] influenc[e]” areas of state control

from those that “intrude on the States’ power”); see also States &

Muns. Br. Sec. II.A.3; infra Sec. IV (discussing Section 7411(d)’s

cooperative federalism framework).

46

that the CPP would have cost “hundreds of billions of

dollars,” W. Va. Br. 20, EPA’s initial projections were

orders of magnitude smaller,17 and the record for the

agency decision before this Court indicates it would

have had no meaningful effect on regulatory

compliance costs at all, JA1719-20.

Second, Section 7411 does not contain a sell-by

date. To the contrary, Congress designed this

provision (and the Act as a whole, supra pp. 5-6) to

equip EPA with tools to address new pollution

problems and to impose new regulatory requirements

over time. Indeed, Congress specifically tasked EPA

with periodically reviewing and updating its best

system determinations and emission limits at least

every eight years. 42 U.S.C. § 7411(b)(1)(B). Applying

Section 7411 to achieve reductions based on evolving

systems of emission reduction is thus a feature, not a

bug, of the provision.

Third, that Congress later considered, but did not

pass, a variety of bills related to climate change does

not give license to construe Section 7411 narrowly. See

W. Va. Br. 24-25; N. Am. Coal Br. 26-27;

Westmoreland Br. 31-32. This Court rejected a nearly

identical argument in Massachusetts, 549 U.S. at 529EPA, Regulatory Impact Analysis for the Clean Power

Plan Final Rule, at tbl. ES-5, ES-9 (Aug. 2015) (projecting

compliance costs of $1-$3 billion in 2025 and $5.1-$8.4 in 2030)

https://www3.epa.gov/ttnecas1/docs/ria/utilities_ria_final-nspsegus_2015-08.pdf.

17

47

30, and has since reiterated that failed legislation is a

“‘particularly dangerous’ basis on which to rest an

interpretation of an existing law,” Bostock v. Clayton

Cnty., 140 S. Ct. 1731, 1747 (2020) (quoting Pension

Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,

650 (1990)). That is especially so here, where the

failed bills include at least as many proposals to block

climate action as to extend that authority.18 One

recent instance of successful legislation, by contrast,

is more telling: In June 2021 Congress adopted, and

the President signed into law, a Congressional Review

Act resolution that reinstated EPA Section 7411

regulations for climate-destabilizing methane

emissions, underscoring EPA’s responsibility to

regulate existing greenhouse gas sources under

Section 7411(d).19

b. Petitioners also try to justify their reliance on

major questions cases by invoking purported

nondelegation concerns. But Section 7411 is at least

as richly elaborated as Section 7409, which this Court

held to be “well within the outer limits” of any

nondelegation problems. Whitman, 531 U.S. at 47218 See, e.g., S. Amdt. 359 to S. Con. Res. 8, 113th Cong.

(2013); H.R. 2081, 113th Cong. (2013); S. 2365, 112th Cong.

(2012); H.R. 3409, 112th Cong. (2012); S.J. Res. 26, 111th Cong.

(2010); S. 1622, 111th Cong. (2009); H.R. 2846, 111th Cong.

(2009); S. 570, 111th Cong. (2009).

19 See Pub. L. No. 117-23, 135 Stat. 295 (2021); H.R. Rep.

No. 117-64, at 7-8 (2021) (noting the “critical importance of

section [74]11(d) in Congress[’s] scheme” and referring to the

attempt to rescind EPA’s authority to regulate existing oil and

gas sources’ methane emissions as “enormously consequential”).

48

74. And once again petitioners ignore AEP, which

described Section 7411’s detailed assignment of

rulemaking authority to EPA and praised it as

“altogether fitting.” 564 U.S. at 424-28.

Section 7411 directs EPA to, among other things,

reduce pollution by basing “achievable” “emission

limitation[s]”

on

“adequately

demonstrated”

measures taking into account “cost” and “energy”

considerations. 42 U.S.C. § 7411(a)(1). These and

other “numerous substantial and explicit constraints,”

JA146, provide more than the “intelligible principle”

required under this Court’s cases. See Gundy v.

United States, 139 S. Ct. 2116, 2123 (2019) (plurality

op.). They also set forth standards “sufficiently

definite and precise” to enable courts to review

“whether Congress’s guidance has been followed.” Id.

at 2136 (Gorsuch, J., dissenting) (cleaned up). Indeed,

the D.C. Circuit has not hesitated to strike down

Section 7411 regulations for failing to reasonably

account for the factors Congress listed in the statute.

E.g., New York v. Reilly, 969 F.2d 1147 (D.C. Cir.

1992); Nat’l Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir.

1980). Accordingly, there is no need to resort to

nondelegation principles to police EPA’s exercise of

authority under the provision.

3. As noted previously, the court of appeals

properly limited its review of the CPP Repeal to the

grounds asserted therein, and thus had no occasion to

consider whether the CPP and each of its constituent

49

elements complied with Section 7411. This is true

regarding the court’s major questions analysis, too.

The court of appeals correctly concluded that

major questions principles do not “confine” EPA to

adopting solely those emission standards that can be

implemented “to and at” a source. JA135. Notably, the

CPP Repeal invoked major questions principles not as

an independent basis for repealing the CPP, but only

in passing to purportedly “confirm[]” its particular

interpretation of Section 7411. JA1770.

As noted above, the consequence of that atextual

restriction was to prohibit all emissions averaging

and trading, even among plants within the same

source category—a regulatory approach that EPA had

used in prior Section 7411(d) rules going back more

than two decades. Supra pp. 15-16. These cases thus

do not present the narrower issue of how major

questions principles might apply to the more

innovative aspect of the CPP, which premised Section

7411(d) standards on emission-reduction credits from

new renewable generating facilities that are not

themselves regulated sources. That is a question for

another day, if EPA includes that feature in a future

rule.

IV. North Dakota’s Arguments Are Meritless

North Dakota alone defends the CPP Repeal on a

different ground: that EPA purportedly lacks

authority to include binding emission limitations in

its guidelines; and that states may determine the

50

limits for existing sources untethered from any

federal requirements. N.D. Br. 14, 35. But contrary to

North Dakota’s contention, Br. 32-33, EPA did not

assert this as a ground for repealing the CPP, see

JA1739-86. As a result, the court of appeals did not

address it either. Thus, even if the issue were properly

presented here, but see Chenery, 332 U.S. at 196, this

Court should “not decide in the first instance issues

not decided below,” Zivotofsky v. Clinton, 566 U.S.

189, 201 (2012) (quoting Nat’l Collegiate Athletic Ass’n

v. Smith, 525 U.S. 459, 470 (1999)); see also BethuneHill v. Va. State Bd. Of Elections, 137 S. Ct. 788, 800

(2017) (this “is a court of final review and not first

view” (quoting Dep’t of Transp. v. Ass’n of Am.

Railroads, 575 U.S. 43, 56 (2015))).

If this Court does consider North Dakota’s

arguments, it should reject them. North Dakota

radically misconstrues the cooperative federalism

structure of Section 7411(d). Congress modeled this

program on the Act’s archetypical cooperative

federalism provision, Section 7410, which provides for

federal requirements implemented through state

plans. See Train, 421 U.S. at 64-65.20 Section 7411(d)

directs EPA to “prescribe regulations which shall

establish a procedure similar to that provided by

[S]ection [74]10,” and provides that the agency “shall

20 See also Hodel v. Va. Surface Min. & Reclamation Ass’n,

452 U.S. 264, 289 (1981) (describing a similar statute’s “program

of cooperative federalism that allows the States, within limits

established by federal minimum standards, to enact and

administer their own regulatory programs”).

51

have the same authority . . . as [it] would have under

Section [74]10(c)” to prescribe a federal plan if a state

fails to submit a satisfactory one. 42 U.S.C.

§ 7411(d)(1)-(2). EPA promulgated the Section 7411(d)

regulations in 1975 (and repromulgated them in 2019

without pertinent change), providing for EPA to issue

industry-specific emission guidelines. See 40 Fed. Reg.

53,340 (Nov. 17, 1975); JA 1933-65; 40 C.F.R. Part 60,

Subparts B and Ba (2019). As this Court has

explained, “in compliance with those guidelines and

subject to federal oversight, the States then issue

performance standards for stationary sources within

their jurisdiction.” AEP, 564 U.S. at 424. See JA1947

(“The EPA is finalizing a definition of ‘emission

guidelines’ that requires them to reflect the degree of

emission limitation of emission [sic] achievable

through application of the [best system]”). Notably,

North Dakota did not challenge the 2019 regulations

below.

Under this framework, EPA determines the

degree of emission limitation that reflects the best

system

of

emission

reduction

adequately

demonstrated, considering the quantity of pollution

reduced, cost, and other factors. 42 U.S.C.

§ 7411(a)(1). Thus, while states may issue plans that

“take the first cut” at directly regulating existing

sources “within [their] domain[s],” those plans must

“achieve EPA[’s] emission standards,” AEP, 564 U.S.

at 428 (emphasis added), on which basis EPA then

determines whether state plans are “satisfactory,” 42

U.S.C. § 7411(d)(2)(A); see also 40 C.F.R. § 60.24a(c)

52

(performance standards in state plans “shall be no

less stringent than [EPA’s] corresponding emission

guideline(s)”). If North Dakota were correct, EPA and

reviewing courts would have no clear basis for

determining whether a state plan was “satisfactory.”

Far from prohibiting EPA from establishing the

amount of emission reduction achievable for regulated

sources, the statute requires EPA to do so. North

Dakota is therefore simply wrong to assert that states,

not EPA, may determine “what ‘emissions limitations’

are ‘achievable’” on their own. N.D. Br. 14, 35.

North Dakota is likewise wrong in asserting that

states may “make source-specific determinations in

setting th[e] standards of performance ‘for any

existing source’” without substantive EPA oversight.

Id. at 35. Section 7411(d) does permit a state to issue

a variance from “generally applicable emissions

standards” to a particular source, AEP, 564 U.S. at

427, in light of factors such as its “remaining useful

life,” 42 U.S.C. § 7411(d)(1). But a state must

“demonstrate[]” in the plan it submits to EPA that

each such variance is warranted due to unreasonable

costs related to factors such as a source’s age. 40

C.F.R. §§ 60.24(f), 24a(e). This limited and fact-based

authority to issue variances is thus not the free pass

that North Dakota imagines to ignore federal

emission limits broadly achievable by sources in a

given category.

North Dakota’s inversion of the statutory

structure would take the country back to a world

53

before the modern Clean Air Act provided for

minimum federal standards for industrial pollution

control. Congress replaced that prior approach in

1970, see Train, 421 U.S. at 64, with a framework that

has greatly reduced air pollution and stands guard to

meet new dangers as they arise today.

CONCLUSION

The cases should be dismissed. If not, the

judgment below should be affirmed.

54

Respectfully submitted,

Sean H. Donahue

David T. Goldberg

Counsel of Record

DONAHUE, GOLDBERG

& LITTLETON

1008 Penn. Ave., SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Vickie L. Patton

Michael Panfil

Ashley Maiolatesi

Jesse Hevia

Grace Weatherall

ENVIRONMENTAL

DEFENSE FUND

1875 Connecticut Ave., NW

Suite 600

Washington, D.C. 20009

(202) 387-3500

Counsel for Environmental

Defense Fund

David Doniger

Ian Fein

Benjamin Longstreth

Melissa J. Lynch

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th Street,

NW, Suite 300

Washington, D.C.

20005

(202) 289-2403

Counsel for Natural

Resources Defense

Council

55

Joanne Spalding

SIERRA CLUB

2101 Webster Street

Suite 1300

Oakland, CA 94612

(415) 977-5725

Andres Restrepo

SIERRA CLUB

50 F Street, NW

8th Floor

Washington, D.C. 20001

(415) 977-5725

Counsel for Sierra Club

Ann Brewster

Weeks

James P. Duffy

CLEAN AIR TASK

FORCE

114 State Street,

6th Floor

Boston, MA 02109

(617) 359-4077

Counsel for American

Lung Association,

American Public

Health Association,

Appalachian

Mountain Club,

Clean Air Council,

Clean Wisconsin,

Conservation Law

Foundation, and

Minnesota Center for

Environmental

Advocacy

56

Brittany E. Wright

Jon A. Mueller

CHESAPEAKE BAY

FOUNDATION, INC.

6 Herndon Avenue

Annapolis, MD 21403

(443) 482-2025

Counsel for Chesapeake

Bay Foundation, Inc.

Jason C. Rylander

Elizabeth A. Jones

CENTER FOR

BIOLOGICAL

DIVERSITY

1411 K St., NW

Washington, D.C.

20005

(202) 744-2244

Counsel for Center

for Biological

Diversity

Howard Learner

Scott Strand

ENVIRONMENTAL LAW &

POLICY CENTER

35 E. Wacker Dr.

Suite 1600

Chicago, IL 60601

(312) 673-6500

Counsel for Environmental

Law & Policy Center

57

Jeff Dennis

ADVANCED ENERGY

ECONOMY

1010 Vermont Ave, N.W.,

3d Floor

Washington, D.C. 20005

(202) 380-1950

Counsel for Advanced

Energy Economy

Ben Norris

Gizelle Wray

SOLAR ENERGY

INDUSTRIES

ASSOCIATION

1425 K St., N.W.,

Suite 1000

Washington, D.C.

20005

(202) 682-0556

Counsel for Solar

Energy Industries

Association

Gene Grace

AMERICAN CLEAN

POWER ASSOCIATION

1501 M St., N.W.

Washington, D.C. 20005

(202) 657-7434

Counsel for American Clean

Power Association

JANUARY 2022