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

Supreme Court briefJan 18, 2022

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

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

JEFFREY PRIETO

General Counsel

GAUTAM SRINIVASAN

Associate General Counsel

MATTHEW C. MARKS

Deputy Associate General

Counsel

STEPHANIE L. HOGAN

Assistant General Counsel

HOWARD J. HOFFMAN

ABIRAMI VIJAYAN

SCOTT JORDAN

RYLAND SHENGZHI LI

NORA GREENGLASS

DANIEL P. SCHRAMM

STACEY SIMONE GARFINKLE

Attorneys

Environmental Protection

Agency

Washington, D.C. 20004

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

MEGHAN E. GREENFIELD

ERIC G. HOSTETLER

CHLOE H. KOLMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

Additional Captions Listed On Inside Cover

THE NORTH AMERICAN COAL CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

WESTMORELAND MINING HOLDINGS LLC, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE STATE OF NORTH DAKOTA, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

QUESTIONS PRESENTED

1. Whether petitioners have standing to invoke this

Court’s appellate jurisdiction.

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

unambiguously limits the measures that the Environmental Protection Agency may consider in determining

the “best system of emission reduction,” 42 U.S.C.

7411(a)(1), for existing sources to measures that can be

applied to and at the level of an individual regulated

source.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 2

Jurisdiction .................................................................................... 2

Statutory provisions involved ...................................................... 2

Statement:

A. The Clean Air Act .................................................. 2

B. The Clean Power Plan ........................................... 5

C. The CPP Repeal and Affordable Clean

Energy Rules ......................................................... 7

D. Proceedings below ................................................. 8

Summary of argument ............................................................... 10

Argument..................................................................................... 14

Petitioners lack standing to invoke this Court’s

appellate jurisdiction .................................................. 15

A. The court of appeals’ decision will not cause

the CPP to take effect ......................................... 16

B. Petitioners are not injured by the court of

appeals’ vacatur of the ACE Rule ...................... 17

C. Petitioners seek what would in substance be

an impermissible advisory opinion intended

to constrain EPA in its future rulemaking........ 18

D. This Court should dismiss the certiorari

petitions for lack of standing or, in the

alternative, vacate the D.C. Circuit’s holding

that Section 7411 does not unambiguously

preclude outside-the-fenceline measures .......... 21

II. The CPP Repeal and ACE Rules rested on an

erroneous view of Section 7411 ................................. 23

A. Section 7411 does not unambiguously compel

the interpretation in the CPP Repeal and

ACE Rules ............................................................ 24

1. The CPP Repeal and ACE Rules rest on

an interpretation that limits both States

and EPA to inside-the-fenceline

measures......................................................... 24

(III)

Table of Contents—Continued:

Page

2. Section 7411(d)(1)(A) should not be

construed to limit state plans to insidethe-fenceline measures ................................. 26

3. Nothing in Section 7411(a)(1)

unambiguously limits EPA’s BSER to

inside-the-fenceline measures ...................... 30

B. Petitioners’ text-based arguments lack merit .. 33

1. Petitioners’ arguments do not support a

categorical rule against inclusion of

outside-the-fenceline measures in the

BSER .............................................................. 33

2. Petitioners’ arguments focused on

generation shifting are unsound .................. 38

C. Petitioners’ reliance on various interpretive

canons is misplaced .............................................. 44

1. Petitioners cannot support their

interpretation by characterizing the CPP

as involving a “major question” ................... 44

2. The constitutional-avoidance canon is

inapplicable here............................................ 50

3. The federalism canon undermines, rather

than supports, the interpretation adopted

in the CPP Repeal and ACE Rules ............. 51

Conclusion ................................................................................... 52

Appendix — Statutory provisions........................................... 1a

TABLE OF AUTHORITIES

Cases:

Alabama Ass’n of Realtors v. Department of Health

& Human Servs., 141 S. Ct. 2485 (2021) .......................... 46

Alaska Dep’t of Envtl. Conservation v. EPA,

540 U.S. 461 (2004).............................................................. 29

American Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011).................................................. 26, 42, 45

Cases—Continued:

Page

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................................... 15

Biden v. Sierra Club, 142 S. Ct. 46 (2021)........................... 22

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 23

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) ..................................................... 25

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)........................................................ 19, 20

Diamond v. Charles, 476 U.S. 54 (1986) ................. 15, 18, 21

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

572 U.S. 489 (2014).............................................................. 31

Essex Chem. Corp. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973),

cert. denied, 416 U.S. 969 (1974) ....................................... 42

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000).............................................................. 47

FERC v. Electric Power Supply Ass’n,

577 U.S. 260 (2016).............................................................. 39

Federal Land Bank v. Bismarck Lumber Co.,

314 U.S. 95 (1941) ............................................................... 37

Gonzales v. Oregon, 546 U.S. 243 (2006) ............................. 46

Gundy v. United States, 139 S. Ct. 2116 (2019).................. 50

Hollingsworth v. Perry, 570 U.S. 693 (2013) ................ 15, 20

Hughes v. Talen Energy Mktg., LLC,

578 U.S. 150 (2016).............................................................. 26

Lawrence v. Chater, 516 U.S. 163 (1996) ............................. 22

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 15

Massachusetts v. EPA, 549 U.S. 497 (2007) ................. 18, 45

Michigan v. EPA, 576 U.S. 743 (2015) .................................. 3

Murray Energy Corp., In re,

788 F.3d 330 (D.C. Cir. 2015) ....................................... 19, 21

Cases—Continued:

Page

National Fed’n of Indep. Bus. v. Department of

Labor, No. 21A244, 2022 WL 120952

(U.S. Jan. 13, 2022) ....................................................... 46, 48

New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008),

cert. dismissed, 555 U.S. 1162, and cert. denied,

555 U.S. 1169 (2009)............................................................ 38

Sierra Club v. Costle, 657 F.2d 298

(D.C. Cir. 1981) ................................................................... 42

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014).............................................................. 20

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

421 U.S. 60 (1975) ............................................................... 29

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ......................................................... 19

Trump v. New York, 141 S. Ct. 530 (2020) .......................... 21

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ............................................................... 22

Union Elec. Co. v. EPA, 427 U.S. 246 (1976)...................... 29

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ............................................................... 22

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014)........................................................ 43, 47

Van Buren v. United States, 141 S. Ct. 1648 (2021) .......... 33

West Virginia v. EPA, 577 U.S. 1126 (2016) .................. 7, 20

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001).............................................................. 50

Constitution, statutes, and regulations:

U.S. Const. Art. III ......................................................... 15, 19

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 2

42 U.S.C. 7408-7410........................................................... 3

42 U.S.C. 7408(a) ............................................................. 29

VII

Statutes and regulations—Continued:

Page

42 U.S.C. 7409(a) ............................................................. 29

42 U.S.C. 7409(b)(1) ........................................................ 50

42 U.S.C. 7410 ................................................ 29, 30, 31, 37

42 U.S.C. 7410(a)(1)......................................................... 29

42 U.S.C. 7410(a)(2)(A) ....................................... 29, 31, 37

42 U.S.C. 7410(a)(2)(D)(i)(I) ........................................... 30

42 U.S.C. 7411 ....................................................passim, 1a

42 U.S.C. 7411(a) ....................................................... 30, 1a

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

42 U.S.C. 7411(a)(2)..................................................... 3, 1a

42 U.S.C. 7411(a)(3)................................................... 34, 1a

42 U.S.C. 7411(a)(5)................................................... 34, 2a

42 U.S.C. 7411(a)(7)................................................... 32, 2a

42 U.S.C. 7411(a)(7)(B) ............................................. 35, 2a

42 U.S.C. 7411(b) ......................................................... 3, 3a

42 U.S.C. 7411(b)(1)(A) ............................................... 3, 3a

42 U.S.C. 7411(b)(1)(B) ............................................... 3, 3a

42 U.S.C. 7411(d) ...............................................passim, 5a

42 U.S.C. 7411(d)(1) ..........................................passim, 5a

42 U.S.C. 7411(d)(1)(A) .....................................passim, 5a

42 U.S.C. 7411(d)(1)(A)(i) ........................................... 3, 5a

42 U.S.C. 7411(d)(1)(A)(ii) .......................................... 3, 5a

42 U.S.C. 7411(d)(2)(A) ......................................... 4, 30, 6a

42 U.S.C. 7411(g)(4)(B) ............................................. 32, 8a

42 U.S.C. 7411(h)(1) .................................................. 32, 9a

42 U.S.C. 7411( j)(1)(C)............................................ 32, 13a

42 U.S.C. 7412 .................................................................... 3

42 U.S.C. 7491(b)(2)(A) ................................................... 33

42 U.S.C. 7491(g)(2) ........................................................ 33

42 U.S.C. 7607(b)(1) ........................................................ 21

42 U.S.C. 7607(d)(5) ........................................................ 20

VIII

Statutes and regulations—Continued:

Page

42 U.S.C. 7651(b) ............................................................. 31

42 U.S.C. 7651b(a)(1) ...................................................... 37

42 U.S.C. 7651f (b)(2) ....................................................... 32

Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, § 109(c)(1)(A), 91 Stat. 700 ................. 32

Clean Air Act Amendments of 1990,

Pub. L. No. 101-549, § 403(a), 104 Stat. 2631 ................... 32

Clean Air Amendments of 1970,

Pub. L. No. 91-604, § 4(a), 84 Stat. 1683 ........................... 32

28 U.S.C. 2106 ........................................................................ 22

40 C.F.R.:

Section 60.22a(b)(5) ......................................................... 30

Section 60.33b(d)(2) ......................................................... 38

Miscellaneous:

70 Fed. Reg. 28,606 (May 18, 2005) ..................................... 38

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

Regional Greenhouse Gas Initiative,

https://rggi.org .............................................................. 28, 49

Webster’s New International Dictionary of the

English Language (2d ed. 1959) ....................................... 31

In the Supreme Court of the United States

No. 20-1530

STATE OF WEST VIRGINIA, ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 20-1531

THE NORTH AMERICAN COAL CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 20-1778

WESTMORELAND MINING HOLDINGS LLC, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 20-1780

STATE OF NORTH DAKOTA, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

(1)

OPINION BELOW

The opinion of the court of appeals (J.A. 53-255) is

reported at 985 F.3d 914.

JURISDICTION

The judgment of the court of appeals was entered on

January 19, 2021. The petitions for writs of certiorari

were filed on April 29, 2021 (No. 20-1530), April 30, 2021

(No. 20-1531), and June 18, 2021 (Nos. 20-1778 and 201780). The petitions were granted on October 29, 2021.

The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in an

appendix to this brief. App., infra, 1a-15a.

STATEMENT

In 2019, the Environmental Protection Agency (EPA)

repealed a 2015 rule regulating power plants’ emissions

of greenhouse gases. Although some regulated plants

had made dire predictions that the emission limits in the

2015 rule would transform the power industry, the rule

was stayed before it had any effect, and those limits

were swiftly achieved through market-based forces

alone. In the decision at issue here, the court of appeals

vacated the repeal of the 2015 rule, but stayed the vacatur indefinitely pending further rulemaking because the

rule was obsolete. As a result, no regulation currently

applies. Petitioners, who oppose stricter regulation, are

not injured by that status quo and do not ask this Court

to change it. Instead, they urge the Court to constrain

EPA’s authority in future rulemakings.

A. The Clean Air Act

The Clean Air Act (CAA), 42 U.S.C. 7401 et seq., “establishes a series of regulatory programs to control air

pollution from stationary sources.” Michigan v. EPA,

576 U.S. 743, 747 (2015). Under one such program, the

EPA Administrator identifies “categories of stationary

sources” that “cause[], or contribute[] significantly to,

air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7411(b)(1)(A).

Once EPA lists a source category, Section 7411(b) requires the agency to establish “Federal standards of

performance for new sources within such category.”

42 U.S.C. 7411(b)(1)(B). New sources are stationary

sources constructed after an applicable Section 7411

“standard of performance” has been proposed. 42 U.S.C.

7411(a)(2). 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).

When EPA establishes a standard for emissions of

an air pollutant from new sources within a category, it

must also regulate emissions of that pollutant from

existing sources within the same category, unless the

pollutant is regulated under the National Ambient Air

Quality Standards (NAAQS) program, 42 U.S.C. 74087410, or the National Emission Standards for Hazardous Air Pollutants (NESHAP) program, 42 U.S.C. 7412.

See 42 U.S.C. 7411(d)(1)(A)(i) and (ii).

Section 7411(d) establishes a framework of “cooperative federalism for the regulation of existing sources.”

J.A. 74. For each source category subject to regulation

under Section 7411(d), EPA first identifies the “system[s] of emission reduction” that are “adequately

demonstrated”; next determines the “best” of those systems, “taking into account” factors including “cost,”

“nonair quality health and environmental impact,” and

“energy requirements”; and finally derives from that

system an “achievable” “degree of emission limitation.”

42 U.S.C. 7411(a)(1). EPA promulgates “emission guidelines” that identify the degree of emission limitation

achievable through the application of the best system of

emission reduction (BSER) as determined by the Administrator. J.A. 74.

Each State must then “submit to the Administrator

a plan” to achieve the degree of emission limitation

identified by EPA. 42 U.S.C. 7411(d)(1). That plan must

“(A) establish[] standards of performance for any existing source for [the] air pollutant,” and “(B) provide[] for

the implementation and enforcement of such standards

of performance.” Ibid. Although such standards must

“reflect[] the degree of emission limitation achievable

through the application of the [BSER],” 42 U.S.C.

7411(a)(1), States need not compel regulated sources to

adopt the particular components of the BSER itself,

J.A. 144. And EPA’s emission guidelines must also permit a State, “in applying a standard of performance to

any particular source,” to “take into consideration,

among other factors, the remaining useful life of the existing source to which such standard applies.” 42 U.S.C.

7411(d)(1). If a State elects not to submit a plan, or submits a plan that EPA does not find “satisfactory,” EPA

must promulgate a plan that establishes federal standards of performance for the State’s existing sources. 42

U.S.C. 7411(d)(2)(A).

B. The Clean Power Plan

In the 1970s, pursuant to Section 7411, EPA identified fossil-fuel-fired power plants as stationary sources

that cause, or contribute significantly to, air pollution.

80 Fed. Reg. 64,510, 64,527 (Oct. 23, 2015). In 2015,

EPA promulgated two rules—the New Source Rule and

the Clean Power Plan (CPP)—that addressed carbondioxide (CO2) emissions from power plants. The New

Source Rule established standards of performance for

new fossil-fuel-fired power plants. Id. at 64,510. EPA

noted its prior finding that “[greenhouse-gas] air pollution may reasonably be anticipated to endanger public

health or welfare,” id. at 64,530, and emphasized that

power plants are “by far the largest emitters” of greenhouse gases among stationary sources in the United

States, id. at 64,522.

Because CO2 is not regulated under either the NAAQS

or the NESHAP program, EPA was also required to

regulate CO2 emissions from existing fossil-fuel-fired

power plants. J.A. 496. To establish emission guidelines for state plans, see J.A. 273, EPA first identified

the BSER. After considering the statutory criteria and

“the types of strategies that [S]tates and owners and

operators of [power plants] are already employing to reduce [CO2] from affected sources,” J.A. 298; see J.A.

542-551, EPA found that the BSER included three types

of measures: (1) improving heat rate (i.e., the amount of

fuel that must be burned to generate a unit of electricity) at coal-fired steam plants; (2) substituting increased

generation from lower-emitting natural-gas combinedcycle plants for generation from higher-emitting steam

plants (which are primarily coal-fired); and (3) substituting increased generation from new zero-emitting renewable energy sources for generation from fossil-fuel-

fired plants. J.A. 86, 299. The latter two measures are

known as “generation shifting” because they involve

shifting electricity generation from higher-emitting

sources to lower-emitting ones. J.A. 583.

EPA determined the amount of heat-rate improvement and generation shifting in the BSER—also known

as the “level of stringency,” J.A. 590—based on what

existing sources had historically accomplished, J.A. 946.

EPA adjusted the stringency downward, to a “reasonable” rather than the “maximum possible” level, to give

affected sources “headroom” to achieve the prescribed

emission reductions. J.A. 590. EPA then determined

the “degree of emission limitation achievable through

the application of the [BSER],” 42 U.S.C. 7411(a)(1),

expressed as two emission performance rates: 1305

pounds of CO2 per megawatt-hour for fossil-fuel-fired

steam plants, and 771 pounds of CO2 per megawatt-hour

for stationary combustion turbines. J.A. 300.

EPA explained that a State would “have to ensure,

through its plan, that the emission standards it establishes for its sources individually, in the aggregate, or

in combination with other measures undertaken by the

[S]tate, represent the equivalent of ” those performance

rates. J.A. 302-303. EPA emphasized, however, that its

guidelines did not mandate any particular approach to

compliance. J.A. 299-300. Thus, neither States nor

sources were required to apply the specific measures

identified in the BSER “to their maximum extent, or

even at all.” J.A. 300.

The CPP required States to submit their plans in

2018, J.A. 486, and established an eight-year period,

from 2022 to 2030, for States to “achieve the full required reductions to meet the CO2 performance rates,”

J.A. 487. EPA projected that, by 2030, nationwide CO2

power-plant emissions would be 32% lower than 2005

levels. J.A. 290.

Numerous States and private parties petitioned for

review of the CPP. J.A. 88. This Court stayed the rule

pending review. West Virginia v. EPA, 577 U.S. 1126

(2016). After the en banc court of appeals heard oral

argument, the “litigation was held in abeyance and ultimately dismissed as the EPA reassessed its position.”

J.A. 88.

C. The CPP Repeal And Affordable Clean Energy Rules

In 2019, EPA finalized the two rulemakings at issue

here. J.A. 1725.

First, EPA promulgated the CPP Repeal Rule. J.A.

1725. Based on its reassessment of Section 7411, J.A.

1739-1740, EPA determined that the statutory “text

and reasonable inferences from it” make “clear” that a

“system” of emission reduction under Section 7411(a)(1)

“is limited to measures that can be applied to and at the

level of the individual source,” J.A. 1769. EPA concluded that generation shifting is not such a measure

and that the CPP therefore “contravene[d] the plain

language of [Section 7411(a)(1)].” J.A. 1763. Based on

its view that the CPP was a “major rule,” EPA further

determined that, absent “a clear-statement from Congress,” the term “ ‘system of emission reduction’ ”

should not be read to encompass “generation-shifting

measures.” J.A. 1770-1771. EPA acknowledged, however, that “[m]arket-based forces ha[d] already led to

significant generation shifting in the power sector,” J.A.

1785, and that there was “likely to be no difference between a world where the CPP is implemented and one

where it is not,” J.A. 1921; see J.A. 1672-1678.

Second, EPA promulgated the Affordable Clean Energy (ACE) Rule, a new set of emission guidelines for

existing coal-fired steam plants. J.A. 1787. In light of

“the legal interpretation adopted in the repeal of the

CPP,” J.A. 1787—which “limit[ed] ‘standards of performance’ to systems that can be applied at and to a stationary source,” J.A. 1796—EPA found the BSER to be

heat-rate improvement alone, J.A. 1800. EPA listed

various technologies that could improve heat rate, J.A.

1803-1809, and identified the “degree of emission limitation achievable” by “providing ranges of expected

[emission] reductions associated with each of the technologies,” J.A. 1811.

EPA stated that, under the ACE Rule, States would

have “discretion in setting standards of performance,”

and that affected sources would “have flexibility in how

they comply with those standards.” J.A. 1892. But EPA

determined that compliance measures “should correspond with the approach used to set the standard in the

first place,” J.A. 1894, and therefore must “apply at and

to an individual source and reduce emissions from that

source,” J.A. 1893. EPA concluded that various measures

besides generation shifting—namely, biomass co-firing

(e.g., burning trees or energy crops with coal), averaging (i.e., allowing multiple sources to average their

emissions to meet an emission-reduction goal), and

trading (i.e., allowing sources to exchange emission

credits or allowances)—did “not meet” that requirement. Ibid. EPA therefore barred States from using

such measures in their plans. Ibid.

D. Proceedings Below

1. Numerous States and private parties petitioned

for review of the CPP Repeal and ACE Rules. J.A. 9596. North American Coal Corp. (NACC) and Westmoreland Mining Holdings LLC challenged the ACE

Rule, arguing that EPA cannot regulate CO2 emissions

from coal-fired power plants under Section 7411(d) at

all. See J.A. 96. West Virginia, North Dakota, and

other States intervened in support of the CPP Repeal

and ACE Rules.

a. The court of appeals vacated both the CPP Repeal

Rule and the ACE Rule and remanded to the agency for

further proceedings. J.A. 53-255.

The court of appeals stated that “the sole ground on

which the EPA defends its abandonment of the [CPP]

in favor of the ACE Rule is that the text of Section 7411

is clear and unambiguous in constraining the EPA to

use only improvements at and to existing sources in its

[BSER].” J.A. 103. The court found “nothing in the

text, structure, history, or purpose of Section 7411 that

compels the reading the EPA adopted.” J.A. 131. The

court likewise rejected the view that the CPP’s use of

generation shifting implicated a “major question” requiring unambiguous authorization by Congress. J.A.

135-153. Having rejected the CPP Repeal Rule’s view

that Section 7411 unambiguously requires that the

BSER be “one that can be applied to and at the individual source,” the court also “reject[ed] the ACE Rule’s

exclusion from Section 7411(d) of compliance measures”

that do not meet that requirement. J.A. 132.

The court of appeals concluded that, because EPA

had relied on an “erroneous legal premise,” both the

CPP Repeal Rule and the ACE Rule should be vacated.

J.A. 214. The court did not decide, however, “whether

the approach of the ACE Rule is a permissible reading

of the statute as a matter of agency discretion,” J.A.

102-103, and instead “remanded to the EPA so that the

Agency may ‘consider the question afresh,’ ” J.A. 214

(citations omitted).

b. Judge Walker concurred in part, concurred in the

judgment in part, and dissented in part. J.A. 216-255.

He would have upheld the CPP Repeal Rule but would

have vacated the ACE Rule on other grounds. J.A. 254.

2. In February 2021, EPA moved to stay the court

of appeals’ mandate with respect to vacatur of the CPP

Repeal Rule while the agency pursued a new rulemaking on remand. J.A. 256-259. An accompanying agency

declaration noted that the deadline for States to submit

their plans under the CPP had “long since passed” and

that, because of “ongoing changes in electricity generation,” “the emissions reductions that the CPP was projected to achieve have already been achieved.” J.A. 265.

EPA urged that, to “promote regulatory certainty and

to avoid the possibility of administrative disruption,”

“no Section 7411(d) rule should go into effect until [the

agency’s new rulemaking] is completed.” J.A. 258.

No party opposed EPA’s motion, J.A. 256, and the

court of appeals “with[e]ld issuance of the mandate with

respect to the vacatur of the [CPP] Repeal Rule until

the EPA responds to the court’s remand in a new rulemaking action,” J.A. 270-271. The court issued its mandate with respect to vacatur of the ACE Rule. J.A. 272.

Accordingly, although the court invalidated the CPP

Repeal Rule, the court’s partial stay of the mandate produces the same practical effect as if that Rule had been

upheld: No Section 7411(d) rule governing CO2 emissions from existing power plants is currently in effect,

and no regulation will occur until EPA completes a new

rulemaking. J.A. 268-269.

SUMMARY OF ARGUMENT

I. Petitioners lack standing to invoke this Court’s

jurisdiction because they are not injured by the court of

appeals’ decision. The court’s partial stay of its mandate ensured that the CPP will never have any effect.

The court’s vacatur of the ACE Rule, and the consequent absence of any currently applicable Section

7411(d) regulation of greenhouse-gas emissions from

existing power plants, does not harm petitioners. Petitioners’ real concern is that EPA might incorporate

some features of the CPP into a future Section 7411(d)

rule. But the contours of such a rule are uncertain. Petitioners in substance request an advisory opinion about

the types of measures a future rule could permissibly

contain—but federal courts are not authorized to render advisory opinions.

The Court therefore should dismiss the certiorari petitions based on petitioners’ lack of standing. In the alternative, the Court may wish to vacate the D.C. Circuit’s holding that Section 7411 does not unambiguously

limit EPA, in determining the BSER, to inside-thefenceline measures—i.e., “measures that apply at and

to an individual source and reduce emissions from that

source.” J.A. 1893. Vacatur would be consistent with

this Court’s disposition of prior cases where changed

circumstances beyond the challenging parties’ control

rendered further review unavailable.

II. The CPP Repeal and ACE Rules were premised

on the view that the only measures States may incorporate into their plans, and the only measures EPA may

include in the BSER, are inside-the-fenceline measures.

The Rules viewed Section 7411 as unambiguously prohibiting not just generation shifting, but also other

outside-the-fenceline measures such as biomass cofiring, averaging, and trading. That reading of the statute is erroneous.

A. As to States, Section 7411(d)(1)(A) does not limit

state plans to inside-the-fenceline measures. Petitioners themselves emphasize the need for state flexibility

in determining which measures will best achieve

compliance with EPA’s emission limitations. Such flexibility is consistent with the framework of cooperative

federalism that Section 7411(d) establishes, which vests

States with substantial discretion. Section 7411(d)(1)(A)

thus permits States, when appropriate, to adopt

measures like biomass co-firing and trading in formulating “standards of performance for any existing source.”

Under Section 7411(a)(1), EPA likewise is not limited to inside-the-fenceline measures in developing the

BSER used to determine overall emission limitations.

Nothing in the phrase “best system of emission

reduction” excludes all outside-the-fenceline measures.

Measures like biomass co-firing and trading could naturally be characterized as elements of a “system.”

Other CAA provisions use the term “system” or similar

language to describe outside-the-fenceline measures.

And the sequence of amendments to Section 7411

demonstrate that Congress did not intend to constrain

the measures that EPA could consider in determining

the BSER.

B. Petitioners offer various text-based arguments to

support their view that a BSER may include only

inside-the-fenceline measures and that generation

shifting in particular is impermissible. Those arguments lack merit.

Petitioners rely in part on Section 7411(d)(1)(A)’s

reference to “standards of performance for any existing

source.” That language, however, addresses the contents of States’ plans, not of EPA’s BSER. Narrowly

construing that language to preclude outside-the-

fenceline measures would thus unduly limit state discretion. A state plan that specifies how each source can

achieve compliance is naturally characterized as establishing “standards of performance for” each source,

even if measures like biomass co-firing and trading are

identified as potential compliance measures.

Petitioners are likewise wrong in inferring an insidethe-fenceline limit from the phrase “application of the

best system of emission reduction” in Section 7411(a)(1).

Although a “system of emission reduction” consists of

measures that individual sources apply, those measures

need not be utilized by all sources equally. Under a

trading program, for example, if one source achieves

compliance by reducing its emissions and another by

purchasing allowances, the “system” is still being applied to both, and the “best system” is the one that best

reduces aggregate emissions.

Petitioners’ arguments focused on generation

shifting are likewise unsound. Even the most conventional emission-reduction measures are likely to have

generation-shifting effects; most electricity is generated

by diversified utilities that can and regularly do shift

generation within their own assets; and the interconnected electricity grid ensures that reduced production

at one facility will be offset by increased production at

another, rather than leading to diminished production

overall. Given those unique features of the power sector, Section 7411 does not categorically exclude generation shifting as a component of the BSER for existing

power plants.

C. Petitioners’ reliance on various interpretive canons is misplaced. Petitioners assert that the CPP

addressed a “major question” and thus required specific

congressional authorization.

But while particular

generation-shifting (or other outside-the-fenceline)

measures in a BSER could sometimes have large practical consequences, such measures do not inherently

have that effect (or any greater effect than inside-thefenceline measures) and should not be deemed categorically impermissible. Indeed, hindsight shows that the

emission limitations in the CPP would not have produced

major consequences, as those limits were readily

achieved in the absence of any regulation. And other

Section 7411 requirements guard against transformative emission guidelines. The constitutional-avoidance

and federalism canons likewise are inapplicable.

ARGUMENT

In promulgating the CPP Repeal and ACE Rules,

EPA determined that Section 7411 clearly limits both

state plans and EPA’s BSER to inside-the-fenceline

measures—“measures that apply at and to an individual

source and reduce emissions from that source.” J.A.

1893. The D.C. Circuit initially vacated both Rules,

holding that Section 7411 does not unambiguously impose that limitation. At EPA’s request, however, the

court stayed the vacatur of the CPP Repeal Rule pending a new EPA rulemaking, effectively allowing the

CPP to be repealed.

After the change in Administration and those intervening developments, EPA has reconsidered its position and has concluded that the text of Section 7411 does

not unambiguously compel the interpretation adopted

in the CPP Repeal and ACE Rules. Petitioners disagree with EPA on that abstract legal question. But petitioners lack standing to invoke this Court’s jurisdiction because they are not injured by the decision below.

The Court therefore should dismiss the certiorari petitions or, in the alternative, vacate the D.C. Circuit’s

holding that Section 7411 does not unambiguously preclude use of outside-the-fenceline measures. If the Court

reaches the merits, it should affirm.

I. PETITIONERS LACK STANDING TO INVOKE THIS

COURT’S APPELLATE JURISDICTION

To ensure that federal courts decide only “ ‘Cases’ or

‘Controversies,’ ” a litigant that invokes the court’s jurisdiction must demonstrate its “standing” to do so.

Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (citation omitted). To establish standing, a litigant must

show that (1) it has suffered an “ ‘actual or imminent’ ”

injury that is “concrete and particularized”; (2) the injury is “ ‘fairly traceable to the challenged action’ ”; and

(3) the injury is “ ‘likely’ ” to be “ ‘redressed by a favorable decision.’ ” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-561 (1992) (brackets, citations, and ellipsis

omitted).

“Most standing cases consider whether a plaintiff

has satisfied the requirement when filing suit, but Article III demands that an ‘actual controversy’ persist

throughout all stages of litigation.” Hollingsworth, 570

U.S. at 705 (citation omitted). “That means that standing ‘must be met by persons seeking appellate review,

just as it must be met by persons appearing in courts of

first instance.’ ” Ibid. (citation omitted).

At this juncture, the relevant Article III question is

whether the petitioners in this Court can establish an

actual or imminent injury that is traceable to the D.C.

Circuit’s judgment and would be redressed by reversal

of that judgment. See Hollingsworth, 570 U.S. at 705707; Arizonans for Official English v. Arizona, 520 U.S.

43, 64-65 (1997); Diamond v. Charles, 476 U.S. 54, 61-71

(1986). Petitioners might contend that they have standing based on (a) the possibility that the D.C. Circuit’s

decision could cause the CPP to take effect; (b) the D.C.

Circuit’s vacatur of the ACE Rule; or (c) the possibility

that an upcoming EPA greenhouse-gas rule might include outside-the-fenceline measures. None of those

theories has merit. Gov’t Br. in Opp. 17-20.

A. The Court Of Appeals’ Decision Will Not Cause The

CPP To Take Effect

By vacating the CPP Repeal Rule, the court of appeals’ decision initially created a theoretical risk that,

when the mandate issued, the CPP would take effect.

Subsequent agency and judicial actions, however, eliminated any such possibility.

In February 2021, the government sought a stay of

the mandate with respect to “the vacatur of the [CPP]

Repeal Rule.” J.A. 259. The motion explained that a

stay “would remove any doubt about states’ and regulated entities’ obligations under the CPP during th[e]

interim period” while the agency was promulgating a

new rule governing power plants’ greenhouse-gas emissions. J.A. 258. The motion stated that “EPA strongly

believes that no Section 7411(d) rule should go into effect until such action is completed.” Ibid. EPA’s submission further explained that “reinstatement of the

CPP would not make sense” because “[t]he deadline for

states to submit State Plans under the CPP has already

passed and, in any event, ongoing changes in electricity

generation mean that the emission reduction goals that

the CPP set for 2030 have already been achieved.” J.A.

269 (footnote omitted). No party opposed the government’s motion. J.A. 256.

The D.C. Circuit granted the government’s motion,

“withhold[ing] issuance of the mandate with respect to

the vacatur of the [CPP] Repeal Rule until the EPA responds to the court’s remand in a new rulemaking

action.” J.A. 270-271 (emphasis added). Because that

stay will remain in place until EPA promulgates a new

rule, the CPP will not become operative—thus producing the same result as the CPP Repeal Rule, which petitioners supported below. These circumstances have

mooted the prior dispute as to the CPP Repeal Rule’s

legality. Petitioners therefore cannot establish standing to invoke this Court’s appellate jurisdiction based

on any harm they might suffer if the CPP took effect.

Gov’t Br. in Opp. 17.

B. Petitioners Are Not Injured By The Court Of Appeals’

Vacatur Of The ACE Rule

With respect to the court of appeals’ vacatur of the

ACE Rule, the government did not seek—and the court

did not grant—a stay of the mandate. J.A. 258, 271.

That approach ensured that States and regulated entities were not forced to adapt their operations to comply

with ACE Rule requirements that might then be superseded by a new EPA rulemaking. The immediate effect

of the court’s decision is that greenhouse-gas emissions

from existing power plants are not subject to any regulation under Section 7411(d). Gov’t Br. in Opp. 17-18.

A decision of this Court upholding the inside-thefenceline interpretation that underlay the CPP Repeal

and ACE Rules could lead to reinstatement of the ACE

Rule during the pendency of EPA’s upcoming rulemaking. But petitioners cannot demonstrate injury from

the D.C. Circuit’s vacatur of the ACE Rule, and they

would derive no practical benefit from the Rule’s reinstatement.

1. The private petitioners have no concrete interest

in bringing about that result. Those petitioners seek to

prevent what they view as over-regulation of existing

coal-fired power plants. Although they preferred the

ACE Rule to the CPP, the current absence of any federal greenhouse-gas regulation causes them no tangible

harm.

2. The vacatur of the ACE Rule likewise causes no

tangible injury to the state petitioners. States sometimes have standing to protect their sovereign or

“quasi-sovereign” interests. See Massachusetts v. EPA,

549 U.S. 497, 518-520 (2007). But here, the D.C. Circuit’s vacatur of the ACE Rule, and its decision not to

stay that aspect of its mandate, relieved the States of

their obligation to develop and enforce plans to implement that Rule, without imposing on them any alternative federal-law duty. The fact that no party opposed

the government’s motion for a partial stay of the court’s

mandate, or asked the D.C. Circuit to broaden the stay

to encompass the court’s vacatur of the ACE Rule,

demonstrates that the vacatur did not injure the state

petitioners. Absent any tangible effect on the state petitioners’ regulatory prerogatives, their abstract disagreement with the D.C. Circuit’s legal analysis does not

confer standing. Cf. Diamond, 476 U.S. at 66 (“Article III

requires more than a desire to vindicate value interests.”). 1

C. Petitioners Seek What Would In Substance Be An

Impermissible Advisory Opinion Intended To Constrain

EPA In Its Future Rulemaking

Petitioners’ real concern is not with any extant EPA

regulation, but with measures that the agency might

Because greenhouse-gas emissions in one State can contribute

to environmental harms in other States, a State may in some circumstances have standing to challenge alleged EPA under-regulation

of greenhouse-gas emissions. See Massachusetts v. EPA, 549 U.S.

at 521-526. None of the state petitioners, however, has objected on

that ground to the vacatur of the ACE Rule.

adopt in its upcoming rulemaking to limit greenhousegas emissions from existing power plants. See, e.g.,

NACC Br. 26 (“If the agency is not limited to sourcelevel and source-achievable systems, the next [CPP]

could be the ‘Green New Deal.’ ”); WV Pet. 21 (urging

the Court to grant review “to clarify EPA’s legal framework from the outset”). In seeking an anticipatory

ruling as to the limits of EPA’s regulatory authority,

petitioners request the sort of advisory opinion that

Article III courts are barred from providing. See, e.g.,

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021) (reaffirming that “federal courts do not issue advisory opinions” and “do not possess a roving commission to publicly opine on every legal question”); cf. In re

Murray Energy Corp., 788 F.3d 330, 334-336 (D.C. Cir.

2015) (Kavanaugh, J.) (holding that court lacked authority to review the proposed rule that was later finalized

as the CPP because the proposed rule was not final

agency action).

This Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute

injury in fact,’ and that ‘allegations of possible future

injury’ are not sufficient.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 409 (2013) (brackets and citation

omitted). EPA is legally obligated to promulgate a rule

governing greenhouse-gas emissions from existing

power plants, J.A. 258, but it is entirely speculative

what specific measures that future rule will contain.

Gov’t Br. in Opp. 19-20; cf. J.A. 102-103 (D.C. Circuit

leaves open the question “whether the approach of the

ACE Rule is a permissible reading of the statute as a

matter of agency discretion”).

In determining anew the BSER, the agency will take

into account this Court’s decision to stay the CPP, see

West Virginia v. EPA, 577 U.S. 1126 (2016); “changed

facts and circumstances in the electricity sector that

have occurred over the last several years,” J.A. 259; and

public comments of interested parties, including petitioners here, 42 U.S.C. 7607(d)(5). The need for the

agency to consider those intervening developments, and

the possibility of further changed circumstances during

the pendency of the rulemaking, render it wholly uncertain whether any particular features of the CPP will be

incorporated into a new EPA rule. Cf. Clapper, 568 U.S.

at 410-414 (holding that plaintiffs’ allegations were insufficient to establish standing because they depended

on speculation as to the steps that both governmental

and private actors might take). The Court accordingly

should “put aside the natural urge to proceed directly

to the merits of an important dispute and to ‘settle’ it for

the sake of convenience and efficiency.” Hollingsworth,

570 U.S. at 704-705 (brackets and citation omitted).

This Court has indicated that in some circumstances,

a “substantial risk” of future harm may be sufficient to

establish standing. Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014) (citation omitted). This case,

however, would be an especially unsuitable occasion to

relax the usual requirement that injury be “certainly

impending.” The plaintiffs in Susan B. Anthony List

challenged the constitutionality of specific enacted laws,

and the only uncertainty concerned the likelihood that

the laws would be enforced against them. See id. at 154,

161-167. Here, by contrast, petitioners are not currently subject to any federal greenhouse-gas restrictions; there is substantial uncertainty about the

contours of the upcoming EPA rule; and petitioners ask

the Court to pronounce on the validity of hypothetical

regulatory provisions that the agency might—but very

well might not—adopt. And when EPA ultimately promulgates a new rule governing greenhouse-gas emissions

from existing power plants, that rule will be subject to

immediate judicial review, see 42 U.S.C. 7607(b)(1),

without the current need for speculation about its contents. See Murray Energy, 788 F.3d at 335 (“After

EPA issues a final rule, parties with standing will be

able to challenge that rule in a pre-enforcement suit, as

well as to seek a stay of the rule pending judicial review.”). In these circumstances, “[l]etting the Executive Branch’s decisionmaking process run its course not

only brings more manageable proportions to the scope

of the parties’ dispute, but also ensures that [the Members of this Court] act as judges, and do not engage in

policymaking properly left to elected representatives.”

Trump v. New York, 141 S. Ct. 530, 536 (2020) (per curiam) (citations and internal quotation marks omitted).

D. This Court Should Dismiss The Certiorari Petitions

For Lack Of Standing Or, In The Alternative, Vacate

The D.C. Circuit’s Holding That Section 7411 Does

Not Unambiguously Preclude Outside-The-Fenceline

Measures

Because petitioners cannot establish an injury that

is traceable to the D.C. Circuit’s decision and would be

redressed by reversal of that court’s judgment, the certiorari petitions should be dismissed “for want of jurisdiction.” Diamond, 476 U.S. at 71 (dismissing because

the appellant in this Court had not suffered any cognizable injury from the lower court’s judgment).

In the alternative, the Court may wish to vacate the

D.C. Circuit’s holding that Section 7411 does not unambiguously bar outside-the-fenceline measures when

EPA devises a BSER. Petitioners had a concrete stake

in that issue at an earlier stage of this litigation, when

vacatur of the CPP Repeal Rule might have caused the

CPP to take effect. The changed circumstances that

eliminated that possibility—in particular, the industry

developments that rendered the specifics of the CPP

obsolete, see J.A. 265, 269; EPA’s decision to conduct a

new rulemaking, see J.A. 258, 265; and the resulting

partial stay of the court of appeals’ mandate at the government’s request, see J.A. 270-271—were outside petitioners’ control.

This Court’s “equitable tradition of vacatur” reflects

the understanding that “[a] party who seeks review of

an adverse ruling, but is frustrated by the vagaries of

circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994). This Court has

most often employed vacatur to prevent that result

when cases have become moot on appeal through “happenstance.” Id. at 23 (citation omitted); see United

States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950).

The Court also has “broad power” to vacate “ ‘any judgment, decree, or order’ ” of a lower court and to remand

for proceedings “ ‘as may be just under the circumstances.’ ” Lawrence v. Chater, 516 U.S. 163, 166 (1996)

(per curiam) (quoting 28 U.S.C. 2106).

Here, the changed circumstances described above

have deprived petitioners of their prior stake in the validity of the CPP Repeal Rule. And even if this Court’s

review on the merits could lead to reinstatement of the

ACE Rule, petitioners lack any interest in producing

that result. If this Court agrees that resolving the merits would be inappropriate, petitioners’ efforts to obtain

review of the disputed statutory interpretation will have

been “frustrated by the vagaries of circumstance.”

Bancorp, 513 U.S. at 25; see Biden v. Sierra Club, 142

S. Ct. 46, 46 (2021) (vacating the judgment below in light

of “changed circumstances”). Vacatur of the D.C. Circuit’s holding that Section 7411 does not unambiguously

preclude outside-the-fenceline measures would ensure

that judicial review of a future EPA greenhouse-gas

rule is unconstrained by the precedential effect of the

decision below, without the issuance by this Court of

any anticipatory ruling on the merits of the disputed legal issues. 2

II. THE CPP REPEAL AND ACE RULES RESTED ON AN

ERRONEOUS VIEW OF SECTION 7411

The D.C. Circuit in this case did not review the CPP

itself, but rather reviewed EPA’s subsequent repeal of

the CPP and its promulgation of the ACE Rule. Those

regulatory actions rested on the view that the only

measures EPA may consider in developing emission

guidelines—and the only measures that States may include in their own plans—are so-called inside-thefenceline measures. J.A. 1769, 1893. The Rules stated

The D.C. Circuit relied on substantially the same analysis in vacating the ACE Rule, but vacatur of that analysis should not cause

the ACE Rule to become operative given EPA’s position that “no

Section 7411(d) rule should go into effect until” the future rulemaking concludes. J.A. 258. That issue could be addressed on remand.

In addition, this Court should not vacate the D.C. Circuit’s holding

that EPA has authority under Section 7411 to regulate greenhousegas emissions from existing power plants. J.A. 176-198. As to that

holding, petitioners were not deprived of further review by “happenstance.” Rather, only the petitioner in No. 20-1778 sought review of that holding, and this Court denied review. Cf. Camreta v.

Greene, 563 U.S. 692, 714 & n.11 (2011) (vacating the “part of the

Ninth Circuit’s opinion” that found the defendant officers’ conduct

unconstitutional, while leaving “untouched” the holding that the officers had qualified immunity).

that the CAA’s text unambiguously imposed that limitation, which would prohibit not just generation shifting, but also other outside-the-fenceline measures such

as biomass co-firing, averaging, and trading. J.A. 103.

Neither Section 7411’s text nor any applicable canon

of construction compels that interpretation. The D.C.

Circuit therefore correctly held that the Rules rested

on an erroneous view of the law.

A. Section 7411 Does Not Unambiguously Compel The

Interpretation In The CPP Repeal And ACE Rules

The CPP Repeal and ACE Rules adopted an interpretation of Section 7411 that applies to both States and

EPA. No party here explicitly defends the view that

Section 7411 unambiguously limits States to inside-thefenceline measures. The statutory text likewise does

not limit EPA to such measures.

1. The CPP Repeal and ACE Rules rest on an

interpretation that limits both States and EPA to

inside-the-fenceline measures

Under the interpretation adopted in the CPP Repeal

Rule, the only measures that EPA may include in its

BSER for existing sources are inside-the-fenceline

measures—“measures that apply at and to an individual

source and reduce emissions from that source.” J.A.

1893; see J.A. 1769. In the ACE Rule, EPA determined

that state plans “should correspond with the approach

used to set the standard in the first place,” J.A. 1894,

and therefore likewise may include only inside-thefenceline measures, J.A. 1893.

EPA nevertheless recognized that some off-site conduct might be essential to particular emission-control

techniques. For example, the ACE Rule identified carbon capture and sequestration as a permissible inside-

the-fenceline measure. J.A. 1733. But while that technique involves the on-site capture of CO2, the sequestration of the captured gas occurs at off-site locations. J.A.

1854.

Under the inside-the-fenceline interpretation, what

must occur at an individual source is the reduction in

emissions. That was the ACE Rule’s primary basis for

excluding biomass co-firing as a permissible measure.

J.A. 1850-1851, 1903-1904. Biomass captures and sequesters CO2 while it grows off-site, J.A. 1851, and biomass co-firing involves using biomass as a secondary

fuel on-site, cf. J.A. 1840. Despite increasing CO2 emissions at a source’s smokestack, biomass co-firing may,

in certain circumstances, result in net CO2 reductions if

emissions are considered over the entire life cycle of the

fuel. J.A. 1851. Although biomass co-firing occurs onsite, the ACE Rule deemed it an impermissible outsidethe-fenceline measure because the CO2 capture—and

thus any attendant emission reduction—occurs elsewhere. J.A. 1904.

In addition, the inside-the-fenceline interpretation

requires that a measure reduce emissions at every

source. The ACE Rule therefore rejected averaging

and trading as permissible measures. J.A. 1899-1903.

An averaging program, for example, might require a

group of facilities to reduce their average emissions to

a particular level; so long as some facilities reduced

their emissions sufficiently below that level, it would not

be necessary for every facility to reduce its emissions.

Cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 863 n.37 (1984) (explaining the “ ‘bubble’ or ‘netting’ concept”). Similarly, a trading program

might allocate allowances authorizing a particular level

of emissions, J.A. 1103; a facility would not need to reduce its emissions so long as it traded for sufficient allowances. See J.A. 1902 (observing that “some sources

would not need to apply any pollution control techniques at all in order to comply with a cap-and-trade

scheme”). Although averaging and trading programs

give regulated sources flexibility to meet emissionreduction goals at the lowest possible cost, the ACE

Rule deemed such programs impermissible because

they would not require emission reductions from every

source. J.A. 1901.

2. Section 7411(d)(1)(A) should not be construed to limit

state plans to inside-the-fenceline measures

a. States have “traditional authority” over “in-state

generation” of electricity. Hughes v. Talen Energy

Mktg., LLC, 578 U.S. 150, 165 (2016). “Interstate air

pollution,” by contrast, is principally a matter of federal

rather than state concern. J.A. 156.

Section 7411(d) reflects Congress’s effort to strike

an appropriate balance between federal and state

prerogatives. For existing sources, “the Act adopts a

cooperative-federalism approach that leaves the States

discretion in determining how their State and industry

can best meet quantitative emissions guidelines established by the EPA.” J.A. 98. Section 7411(d) “envisions

extensive cooperation between federal and state authorities, generally permitting each State to take the

first cut at determining how best to achieve EPA emissions standards within its domain.” American Elec.

Power Co. v. Connecticut, 564 U.S. 410, 428 (2011)

(AEP) (citation omitted).

b. Petitioners do not explicitly dispute that States

may include outside-the-fenceline measures in the plans

they develop to achieve EPA’s emission limitations.

Thus, NACC accepts (Br. 48) that state plans may include provisions for “emissions-trading or the like.”

North Dakota likewise recognizes that “States have

‘wide discretion’ in formulating their plans.” ND Br. 38

(citation omitted); see WV Br. 27 (emphasizing States’

“wide discretion”).

Petitioners’ emphasis on the need for state flexibility

is consistent with the framework of cooperative federalism described above. It is inconsistent, however, with

the ACE Rule’s conclusion that the only measures

States may use in their plans are inside-the-fenceline

measures. J.A. 1893. It is also inconsistent with some

petitioners’ suggestion that Section 7411(d)(1)(A)’s reference to “standards of performance for any existing

source” precludes reliance on outside-the-fenceline

measures as the BSER. See NACC Br. I, 13, 33-34; WV

Br. 31, 39. That language identifies the required contents of state plans, not of the BSER.

An artificially narrow construction of Section

7411(d)(1)(A) therefore would constrain state discretion

and disserve the federalism values that petitioners emphasize, without furthering federal objectives. If particular outside-the-fenceline mechanisms are authorized by state law and would achieve compliance with

EPA’s emission guidelines, there is no sound basis to

read Section 7411(d)(1)(A) as precluding those measures.

c. Nothing in Section 7411(d)(1) bars States from including outside-the-fenceline measures in their plans.

Under Section 7411(d)(1), States must “establish[],”

“implement[],” and “enforce[]” “standards of performance for any existing source.” 42 U.S.C. 7411(d)(1).

A state plan that specifies what each existing source

must do to satisfy plan requirements is naturally characterized as establishing “standards of performance for

[each] existing source,” even if measures like biomass

co-firing and trading are identified as potential means

of compliance.

For example, assuming the existence of circumstances in which biomass co-firing could reduce CO2

emissions, a State could allow each coal-fired plant the

option of satisfying its standard of performance by cofiring with biomass. Any resulting reductions in emissions would rely on CO2 capture that occurs during biomass growth, beyond each plant’s fenceline. See p. 25,

supra. But the State could still “implement[]” and “enforce[]” the “standard of performance for [each] existing source” by accounting for those reductions when determining whether a particular source had satisfied the

standard. 42 U.S.C. 7411(d)(1).

A State likewise could allow each plant the option of

satisfying its standard through trading. Numerous

eastern States, for example, have created the Regional

Greenhouse Gas Initiative, which allocates tradeable

CO2 emission allowances to regional power plants. See

https://rggi.org. If Section 7411(d)(1) limited States to

inside-the-fenceline measures, States could not rely on

such trading programs to achieve EPA’s emission limitations.

Section 7411(d) authorizes each State, “in applying a

standard of performance to any particular source,” to

“take into consideration, among other factors, the remaining useful life of the existing source to which such

standard applies.” 42 U.S.C. 7411(d)(1). That provision

allows a State to “find that the costs” of a particular

emission-reduction measure “are not reasonable when

consideration is given to the timeframe for the planned

retirement of the source.” J.A. 1827. Trading programs

likewise help to ensure that costs are reasonable by

enabling market forces to identify the facilities whose

emissions can be reduced most cost-effectively, J.A.

605-606, and nothing in Section 7411(d) precludes

States from considering a source’s acquisition of allowances in implementing and enforcing a standard of performance for that particular source.

d. Section 7411(d) requires a “procedure similar to

that provided by section 7410.” 42 U.S.C. 7411(d)(1).

Consideration of the Section 7410 framework reinforces

the absence of any inside-the-fenceline limit on the

measures States may employ under Section 7411(d).

Section 7410 is a provision of the NAAQS program, under which EPA promulgates national standards for certain air pollutants. 42 U.S.C. 7408(a); see 42 U.S.C.

7409(a). Each State then submits a plan that “provides

for implementation, maintenance, and enforcement of

such” standards, 42 U.S.C. 7410(a)(1), and “include[s]

enforceable emission limitations and other control

measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions

of emissions rights),” 42 U.S.C. 7410(a)(2)(A).

“States have ‘wide discretion’ in formulating their

plans” under Section 7410. Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) (citation

omitted); see Union Elec. Co. v. EPA, 427 U.S. 246, 269

(1976) (“Congress plainly left with the States, so long as

the national standards were met, the power to determine which sources would be burdened by regulation

and to what extent.”); Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79 (1975) (“[S]o long as the ultimate effect of a State’s choice of emission limitations is

compliance with the national standards for ambient air,

the State is at liberty to adopt whatever mix of emission

limitations it deems best suited to its particular situation.”). Exercising that discretion, States have included

outside-the-fenceline measures in their Section 7410

plans. See, e.g., J.A. 430-435 (discussing NOX and SO2

trading programs in which States may participate to

comply with Section 7410(a)(2)(D)(i)(I), the “Good

Neighbor Provision”). Section 7410 thus does not distinguish between inside- and outside-the-fenceline

measures, and there is no sound reason to read Section

7411’s comparably broad language differently. See p. 37,

infra.

3. Nothing in Section 7411(a)(1) unambiguously limits

EPA’s BSER to inside-the-fenceline measures

For the reasons stated above, Section 7411(d)(1)(A)’s

requirement that each state plan “establish[] standards

of performance for any existing source” does not limit

state plans to inside-the-fenceline measures. So too

nothing in Section 7411 unambiguously limits EPA to

inside-the-fenceline measures in identifying the BSER

used to determine overall emission limitations.

a. The standards of performance that States establish under Section 7411(d) must “reflect[] the degree of

emission limitation,” 42 U.S.C. 7411(a)(1), determined

by EPA. 3 Section 7411(a) specifies that “the degree of

North Dakota contends (Br. 36) that EPA lacks authority to “determine what emission limitations are ‘achievable’ by existing

sources.” That contention, which was not addressed below, lacks

merit. Unless EPA specifies “the degree of emission limitation

achievable through application of ” the BSER, 42 U.S.C. 7411(a)(1),

States would lack meaningful guidance on what plans EPA would

find “satisfactory,” 42 U.S.C. 7411(d)(2)(A). EPA’s regulations

therefore require the agency to specify the degree of emission limitation achievable, 40 C.F.R. 60.22a(b)(5), and the ACE Rule itself

emission limitation” be that degree “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.” Ibid.

EPA thus determines the degree of emission limitation

achievable based on “application of the best system of

emission reduction.” Ibid.

A “system” is “[a]n aggregation or assemblage of objects united by some form of regular interaction or interdependence,” or “a definite or set plan of ordering,

operating, or proceeding.” Webster’s New International

Dictionary of the English Language 2562 (2d ed. 1959)

(emphasis omitted); see J.A. 108. That definition encompasses inside- and outside-the-fenceline measures

alike, including biomass co-firing and trading. Cf. EPA

v. EME Homer City Generation, L. P., 572 U.S. 489,

503 n.10 (2014) (describing a “ ‘cap-and-trade’ ” program

as a “system” that “cuts costs while still reducing pollution to target levels”).

Other CAA provisions use “system” and similar

words to describe outside-the-fenceline measures. For

example, a provision establishing the Acid Rain Program uses the phrase “emission allocation and transfer

system” to describe a trading program for reducing

sulfur- and nitrogen-oxide emissions from power plants.

42 U.S.C. 7651(b). And Section 7410 specifies that “control measures, means, or techniques” “includ[e] economic incentives such as” “marketable permits” and

“auctions of emissions rights.” 42 U.S.C. 7410(a)(2)(A).

recognized that EPA must do so “as part of the BSER determination,” J.A. 1811.

b. Some CAA provisions have explicitly limited the

permissible components of a particular “system.” In

1977, Congress amended Section 7411 to create separate definitions of “standard of performance” for new

and existing sources. CAA Amendments of 1977, Pub.

L. No. 95-95, § 109(c)(1)(A), 91 Stat. 700. The definition

applicable to new sources used the phrase “best technological system of continuous emission reduction.” Ibid.

(emphases added). And the definition applicable to existing sources used the phrase “best system of continuous emission reduction.” Ibid. (emphasis added). In

1990, Congress amended Section 7411 to return to a single “standard of performance” definition that omitted

those qualifiers. CAA Amendments of 1990, Pub. L. No.

101-549, § 403(a), 104 Stat. 2631; see Clean Air Amendments of 1970, Pub. L. No. 91-604, § 4(a), 84 Stat. 1683.

But the phrase “technological system of continuous

emission reduction” remains in certain Section 7411

provisions that do not apply here. E.g., 42 U.S.C.

7411(a)(7), (g)(4)(B), (h)(1) and ( j)(1)(C). That statutory

history and context suggest a conscious congressional

rejection of any “technological, at-the-source limitation” on the measures that EPA may include in the

BSER for existing sources. J.A. 125.

Other CAA provisions similarly underscore the

“comparative generality of Section 7411(a)’s reference

to the ‘best system of emission reduction.’ ” J.A. 120. In

the Nitrogen Oxides Emission Reduction Program,

Congress directed EPA to establish emission limitations

based on the “degree of reduction achievable through

the retrofit application of the best system of continuous

emission reduction, taking into account available technology, costs and energy and environmental impacts.”

42 U.S.C. 7651f (b)(2). And in a program for preventing

visibility impairment, Congress directed state implementation plans to require use of the “best available

retrofit technology.” 42 U.S.C. 7491(b)(2)(A) and (g)(2).

The absence of similar limiting language here indicates

that Congress did not intend such limits.

B. Petitioners’ Text-Based Arguments Lack Merit

In challenging the decision below, petitioners rely

principally on various non-textual canons of statutory

construction. See, e.g., WV Br. 14-31, 44-49; NACC Br.

16-32. Statutory interpretation, however, “always” begins with the text. Van Buren v. United States, 141 S. Ct.

1648, 1654 (2021).

Petitioners’ text-based arguments fall into two categories: (1) arguments that EPA, in determining the

BSER, is categorically barred from considering outsidethe-fenceline measures; and (2) arguments that EPA

specifically may not consider generation shifting. Neither set of arguments has merit.

1. Petitioners’ arguments do not support a categorical

rule against inclusion of outside-the-fenceline measures

in the BSER

a. In defending a categorical rule that EPA cannot

include outside-the-fenceline measures as components

of its BSER, petitioners make several arguments based

on the text of Section 7411(d). See, e.g., WV Br. 39-41;

NACC Br. 33-36. But the language on which they principally rely is directed at States, not EPA. Under Section 7411(d)(1), “each State” must submit a plan that

“establishes standards of performance for any existing

source” and “provides for the[ir] implementation and

enforcement.” 42 U.S.C. 7411(d)(1). Petitioners do not

explain how that language could limit EPA to insidethe-fenceline measures without imposing the same limit

on States, in derogation of both petitioners’ own arguments and the States’ broad discretion under the framework of cooperative federalism that Section 7411(d) establishes. See pp. 26-27, supra.

In any event, petitioners’ effort to infer an insidethe-fenceline limit from the language of Section 7411(d)

fails. Petitioners emphasize that States must establish

“standards of performance for any existing source”

(singular). 42 U.S.C. 7411(d)(1) (emphasis added); see

WV Br. 34, 39-41; NACC Br. 33-35. But as explained

above, that language simply means that States must

hold each source (singular) to a particular “standard for

emissions of [the] air pollutant[].” 42 U.S.C. 7411(a)(1);

see pp. 27-28, supra. Nothing about that requirement

distinguishes measures like heat-rate improvements and

carbon capture and sequestration, on one hand, from

measures like biomass co-firing and trading, on the

other. See pp. 27-29, supra.

Petitioners also emphasize that the statute defines

“stationary source” as a “building, structure, facility, or

installation which emits or may emit any air pollutant.”

42 U.S.C. 7411(a)(3); see WV Br. 40; NACC Br. 36.

Based on that definition, petitioners argue that any

standard of performance must apply to the building itself rather than to its “owner or operator,” which is a

separately defined phrase, 42 U.S.C. 7411(a)(5). But as

explained above, inside- and outside-the-fenceline

measures alike are compatible with a State’s establishment, implementation, and enforcement of standards

for each regulated facility. See pp. 27-29, supra. That

the standards must be “for” a source does not mean that

all emission reductions must occur at the source.

Section 7411’s definition of “stationary source” likewise does not imply that States may rely only on

measures that physically occur within the facility itself.

After all, the ACE Rule regarded carbon capture and

sequestration as an inside-the-fenceline measure, even

though the sequestration occurs off-site. J.A. 1733; see

pp. 24-25, supra. And Section 7411 itself identifies “precombustion cleaning or treatment of fuels” as a type of

“system” of “emission reduction,” even though such

cleaning or treatment may be conducted off-site by

third parties. 42 U.S.C. 7411(a)(7)(B); see J.A. 751-752.

b. Petitioners view an inside-the-fenceline limitation

as implicit in the phrase “application of the best system

of emission reduction.” 42 U.S.C. 7411(a)(1). They contend that the unstated indirect object of that phrase is

an existing source; that the phrase therefore should be

read to refer to the application of the best system of

emission reduction to or for an existing source; and that

outside-the-fenceline measures lack the requisite connection to any particular source. WV Br. 37-38; NACC

Br. 36-37. That contention lacks merit.

A “system of emission reduction” consists of

measures that individual sources apply—whether those

measures are heat-rate improvements or trading. But

contrary to petitioners’ suggestion, those measures

need not be utilized by all sources equally. The BSER

may reflect the agency’s determination that overall

emissions can best be reduced by taking account of the

ways in which different sources are differently situated.

Under a trading program, for example, market forces

can identify the facilities whose emissions can be reduced most cost-effectively. J.A. 605-606. If one source

achieves compliance by reducing its emissions and another by purchasing allowances, the “system” is still being applied to both, and the “best system” is the one that

best reduces aggregate emissions.

Notably, when EPA “tak[es] into account” “cost” and

“any nonair quality health and environmental impact

and energy requirements,” it does so by considering the

“application of the best system of emission reduction”

across the board—i.e., to all existing regulated sources

in the aggregate. 42 U.S.C. 7411(a)(1); see, e.g., J.A.

1843-1844. Even in promulgating the ACE Rule, EPA

recognized that “energy requirements” could be considered on a “sector-wide, region-wide or nationwide basis.” J.A. 1795 n.152. EPA then rejected natural-gas

co-firing as a possible component of the BSER in part

because co-firing natural gas in coal-fired plants is not

the “best” use of the country’s natural-gas supply,

which would be put to “more efficient use” in “underutilized” natural-gas combined-cycle plants. J.A. 1843.

Petitioners’ reliance on the word “achievable” (e.g.,

WV Br. 35-36) is likewise misplaced. It is the “degree

of emission limitation” that must be “achievable.” 42

U.S.C. 7411(a)(1). And the “degree of emission limitation achievable”—like “cost,” “nonair quality health and

environmental impact,” and “energy requirements”—is

evaluated based on “application of the best system of

emission reduction” across the board. Ibid.

c. Petitioners argue (NACC Br. 42) that, if Congress had intended to “grant the EPA power to institute

industry-wide ‘systems’ like cap-and-trade regimes,” it

would have used more specific language, as it did in the

Acid Rain Program. But EPA’s authority to determine

the BSER does not encompass the power to institute

any industry-wide system. Rather, EPA’s determination of the BSER is merely an intermediate step in its

identification of overall emission limitations, and the ultimate decision whether to use trading programs to

achieve those limitations is made by States in developing their own plans, whether or not EPA includes such

programs in its BSER. In that respect, determination

of the BSER differs fundamentally from the Acid Rain

Program, which directly instituted a federal trading

system of nationwide scope. See 42 U.S.C. 7651b(a)(1).

For similar reasons, petitioners’ reliance (NACC Br.

26-27) on various bills proposed in Congress is misplaced. Because those bills would have directly instituted federal trading or other programs, Congress’s

failure to enact them does not suggest anything about

either States’ discretion under Section 7411(d)(1) or

EPA’s determination of the BSER under Section

7411(a)(1).

Petitioners also contend that, when Congress wished

to “approve[] market-based trading options” under Section 7410, it “sa[id] so directly.” WV Br. 42. But Section

7410 requires state plans to contain “enforceable emission limitations and other control measures, means, or

techniques (including economic incentives such as fees,

marketable permits, and auctions of emissions rights).”

42 U.S.C. 7410(a)(2)(A) (emphasis added). The “term

‘including’ * * * connotes simply an illustrative application of the general principle.” Federal Land Bank v.

Bismarck Lumber Co., 314 U.S. 95, 100 (1941). Section

7410(a)(2)(A)’s language thus demonstrates that Congress viewed “economic incentives” as “control measures,

means, or techniques” within the meaning of that provision. Section 7410 accordingly provides no sound basis

to read the comparably broad term “system of emission

reduction” to exclude market-based trading regimes.

d. Petitioners are likewise wrong in asserting

(NACC Br. 47-48) that the CPP was the first time EPA

had included outside-the-fenceline measures in a BSER

under Section 7411. In the 2005 Clean Air Mercury Rule,

EPA determined that a “cap-and-trade program” is a

“ ‘system of emission reduction.’ ” 70 Fed. Reg. 28,606,

28,616 (May 18, 2005). EPA noted that it had previously

“authorized emissions trading under [Section 7411(d)]”

in emission guidelines for existing municipal waste combustors. Id. at 28,617; see 40 C.F.R. 60.33b(d)(2) (“A

State plan may establish a program to allow owners or

operators of municipal waste combustor plants to engage in trading of nitrogen oxides emission credits.”).

EPA then determined that “a cap-and-trade program

based on control technology * * * is the best system for

reducing [mercury] emissions from existing coal-fired

Utility Units,” 70 Fed. Reg. at 28,617, emphasizing that

such a program would ensure that reductions “will be

achieved with the least cost,” id. at 28,619.

Petitioners observe that the “emission cap” in that

cap-and-trade program was based on the availability of

certain “technologies necessary to achieve” that cap.

70 Fed. Reg. at 28,620; see NACC Br. 47-48. But under

the inside-the-fenceline approach adopted in the CPP

Repeal Rule, any trading program would be invalid regardless of how EPA calculated the cap. See J.A. 18991900 & n.251 (acknowledging a departure from “EPA’s

interpretation” in the Clean Air Mercury Rule); cf. New

Jersey v. EPA, 517 F.3d 574, 583-584 (D.C. Cir. 2008)

(vacating the Rule on other grounds).

2. Petitioners’ arguments focused on generation shifting

are unsound

Petitioners’ remaining text-based arguments rest on

the understanding that the words “performance” and

“existing” in Section 7411(d)(1)(A) presume that an existing source will continue to exist and to perform, and

that the words “limitation” and “reduction” in Section

7411(a)(1) imply the lowering, but not the elimination,

of emissions from an existing source. See NACC Br. 35,

39-41; WV Br. 34-36. Those arguments have no bearing

on whether the BSER may include measures like biomass co-firing, averaging, and trading—each of which

can reduce overall emissions even if every existing

source continues to produce the same amount of

electricity. Those arguments consequently do not support the categorical rule against outside-the-fenceline

measures adopted in the CPP Repeal and ACE Rules.

Rather, those arguments are specific to whether generation shifting is a permissible component of the

BSER—and they are unpersuasive as a basis to bar all

generation-shifting measures.

a. Given the unique features of the power sector,

Section 7411 does not categorically exclude generation

shifting as a component of the BSER for existing power

plants. That is so for three principal reasons.

First, “[a]ny regulation of power plants—even the

most conventional, at-the-source controls—may cause a

relative increase in the cost of doing business for particular plants but not others, with some generationshifting effect.” J.A. 151. “[A]lmost all electricity flows

* * * through an interconnected ‘grid’ of near-nationwide

scope.” FERC v. Electric Power Supply Ass’n, 577 U.S.

260, 267 (2016) (EPSA). “On the grid, there is no coalgenerated electricity or renewable-generated electricity; there is just electricity.” J.A. 78. And within the

grid’s dispatch system, “production from ‘generators

with the lowest variable costs’ will be dispatched ‘first,

as system operational limits allow, until all demand is

satisfied.’ ” J.A. 87 (citation omitted); see EPSA, 577

U.S. at 268-269. Thus, if a given emission-reduction

measure makes one power plant’s operations more expensive than those of other sources, that will cause generation to shift, as the grid draws more heavily on those

other sources for electricity. J.A. 897.

If EPA were foreclosed from including in its BSER

any measure that would predictably cause some facilities to “diminish[] [their] capacity” (NACC Br. 35) or

engage in “reduced utilization” (Westmoreland Br. 19),

it could not formulate a BSER for power plants at all.

Petitioners’ argument thus must rest on the premise

that Section 7411 unambiguously distinguishes between

(a) measures that will predictably cause some generation shifting but that are included in the BSER for other

reasons and (b) measures that EPA includes in a BSER

because of their expected generation-shifting effects.

But petitioners identify no statutory language that

mandates that distinction. Measures that fall in the latter category can be just as compatible with a State’s establishment, implementation, and enforcement of

“standards of performance” that specify how each “existing source” can comply. 42 U.S.C. 7411(d)(1). And

nothing in the phrase “system of emission reduction”

suggests a categorial bar against generation-shifting

measures. 42 U.S.C. 7411(a)(1).

Second, even in the absence of regulation, generation

shifting is ubiquitous in the power sector because “most

electricity is generated by diversified utilities” that can

and regularly do shift generation simply by “reassessing the dispatch priority of their own assets.” J.A.

87; see J.A. 937-939. For example, many natural-gas

combined-cycle plants “are owned by the same companies or affiliates that also own steam units.” J.A. 898.

In such circumstances, the steam units can shift generation to the lower-emitting natural-gas combined-cycle

plants “without the need to engage in separate market

transactions with outside parties.” Ibid. Nothing in the

statutory language requires EPA to ignore that such

generation-shifting measures are routinely undertaken

by diversified utilities to “ensur[e] delivery of a reliable

source of power at least cost to consumers.” Power

Company Respondents Br. in Opp. 21.

Third, based on the unique features of the interconnected electricity grid, a categorical bar on generation

shifting is not necessary to avoid reducing overall production of electricity. In promulgating the CPP, EPA

recognized that in prior Section 7411 rulemakings, “the

focus for the BSER has been on how to most cleanly

produce a good, not on limiting how much of the good

can be produced.” J.A. 809; see J.A. 813-814 (explaining

that EPA has interpreted Section 7411 to “target[]

supply-side activities,” rather than “consumer-oriented

behavior,” and rejecting demand-side energy-efficiency

measures as part of the BSER). With respect to many

source categories, requirements that are intended to reduce some sources’ production might have the predictable effect of reducing overall production. With respect

to the particular source category at issue here, however,

“[t]he physical properties of electricity and the highly

integrated nature of the electricity system,” J.A. 805,

ensure that decreased production at some sources will

be offset by increased production at others, thereby reducing overall emissions “without reducing overall electricity generation,” J.A. 812.

b. Petitioners contend (NACC Br. 24) that the logical implication of allowing generation shifting to be a

component of the BSER is that EPA could determine

that the BSER is to “cancel coal entirely” or to “reduce

the[] operations” of “gas-fired plants” to “two hours per

day.” Although petitioners are correct that those hypothetical BSERs would be impermissible, it is not because they would contravene any inside-the-fenceline

limit; instead, it is because they would contravene the

express constraints Congress wrote into the statute.

Section 7411(d) does not require the maximum degree of pollution control. See Sierra Club v. Costle, 657

F.2d 298, 330 (D.C. Cir. 1981). It instead requires EPA

to balance “the environmental benefit potentially

achievable” against “our Nation’s energy needs and the

possibility of economic disruption.” AEP, 564 U.S. at

427. Accordingly, a “system of emission reduction” must

be “adequately demonstrated,” 42 U.S.C. 7411(a)(1)—

that is, “reasonably reliable,” “reasonably efficient,”

and “reasonably” “expected to serve the interests of

pollution control without becoming exorbitantly costly

in an economic or environmental way.” Essex Chem.

Corp. v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir.

1973), cert. denied, 416 U.S. 969 (1974). And in determining which among “adequately demonstrated” systems is “best,” EPA must weigh “cost” and “energy requirements.” 42 U.S.C. 7411(a)(1); see J.A. 1795 n.152,

1826. The cost of the system must not be “unreasonable” or “greater than the industry could bear and survive.” J.A. 1826 (citations omitted).

Those statutory criteria would rule out petitioners’

hypothetical BSERs. Petitioners’ imagined BSERs

would not be “adequately demonstrated” or “best” because, among other things, they would be exorbitantly

costly for ratepayers, J.A. 311-312; would threaten the

reliability of the grid, J.A. 1260; and would violate

EPA’s longstanding view that closures cannot be the

basis for pollution-control requirements, J.A. 819-820.

In any event, to the extent petitioners’ concern is

that some levels of generation shifting could be unduly

stringent, that concern provides no sound basis for categorically excluding all generation shifting as a permissible component of the BSER. There is no inherent connection between including generation shifting in the

BSER and any particular “level of stringency.” J.A.

590. Rather, the level of stringency will depend on the

amount of generation shifting that EPA determines to

be “adequately demonstrated” and part of the “best”

system. 42 U.S.C. 7411(a)(1). Thus, a rulemaking could

include generation-shifting measures in the BSER, yet

conclude that the statutory criteria justified overall

emission limitations that were relatively undemanding—

creating no risk of the consequences that petitioners

imagine.

c. Petitioners also contend (NACC Br. 25) that,

unless this Court rejects generation shifting as a permissible component of the BSER, EPA could adopt

generation-shifting measures for “other parts of the

economy.” For example, petitioners hypothesize (ibid.)

emission guidelines for existing “homes” based on a

BSER involving the replacement of gas furnaces with

solar-powered units. But petitioners’ imagined BSER

operates entirely within a home’s fenceline, involving

the substitution of one technology for another. Thus,

petitioners’ own inside-the-fenceline interpretation

would not preclude their hypothetical rule.

Petitioners’ hypothetical rule is problematic not because it contravenes any supposed inside-the-fenceline

limit, but rather because it violates the constraints in

the statutory text. EPA could not issue emission guidelines for “homes” under Section 7411 in the first place.

Cf. Utility Air Regulatory Group v. EPA, 573 U.S. 302,

324 (2014) (UARG) (declining to interpret the CAA in a

manner that would require permits for the operation of

millions of previously unregulated “small sources nationwide”); J.A. 815. But even if homes could be regulated, the constraints in Section 7411(a)(1)—namely,

the requirements that a system be “adequately demonstrated” and of reasonable “cost”—would preclude a

BSER involving the installation of solar panels on tens

of millions of homes. Petitioners’ hypotheticals accordingly provide no support for their interpretation of the

statute.

C. Petitioners’ Reliance On Various Interpretive Canons

Is Misplaced

In defending the CPP Repeal Rule, petitioners also

rely on several canons of construction. None of those

canons can justify reading “additional, extratextual,

and inflexibly categorical limitations into [the] statute.”

J.A. 146.

1. Petitioners cannot support their interpretation by

characterizing the CPP as involving a “major

question”

Petitioners contend that what measures EPA may

consider in determining the BSER raises a major question of economic and political significance, and that Congress must specifically authorize the agency to consider

outside-the-fenceline measures for EPA to do so. See,

e.g., WV Br. 14-26. For six principal reasons, that argument lacks merit.

First, the assertion that the CPP involved a major

question could not justify a narrowing construction of

Section 7411(d)(1)(A)’s reference to “standards of performance for any existing source.” That language is not

directed at EPA, but instead specifies the required contents of state plans. This Court has never constrained

the States’ discretion based on the economic and political consequences of a federal regulation. And given petitioners’ (appropriate) emphasis on Congress’s intent

that States have flexibility in implementing EPA’s Section 7411 emission guidelines, it would be perverse to

resolve any ambiguities in Section 7411(d)(1)(A) in a

way that restricts state discretion. See pp. 26-30, supra.

Second, EPA’s task of determining the BSER is an

interstitial one that involves fact-finding of a type well

suited to EPA. Congress has enacted a definition of “air

pollutant” that unambiguously encompasses CO2. See

Massachusetts v. EPA, 549 U.S. at 528-529. Congress

has spoken “ ‘directly’ to emissions of carbon dioxide

from [existing power] plants.” AEP, 564 U.S. at 424.

And Congress has established the framework through

which such emissions shall be regulated, requiring EPA

to announce overall emission limitations based on “scientific, economic, and technological” judgments that

EPA is well equipped to make, id. at 428, while giving

States broad flexibility to decide how compliance can

best be achieved. 42 U.S.C. 7411(a)(1) and (d)(1).

As an intermediate step in EPA’s identification of

the overall emission limitations, determining the BSER

involves no direct regulation of private conduct. EPA’s

identification of the BSER is not a “mandate” (NACC

Br. 1) to use the particular measures identified therein.

The BSER “assures that there is at least one pathway”

that States and affected sources can take to “achieve[]

the requisite level of emission reductions.” J.A. 560.

But States need only adopt standards of performance

that “reflect[] the degree of emission limitation achievable through the application of the [BSER].” 42 U.S.C.

7411(a)(1) (emphasis added). States need not adopt, or

compel regulated sources to adopt, the particular

measures that the BSER describes. J.A. 144. Because

determining the BSER involves no direct regulation of

private conduct, it is unlike the power to issue an emergency temporary standard in National Federation of

Independent Business v. Department of Labor, No.

21A244, 2022 WL 120952, at *1-*3 (U.S. Jan. 13, 2022)

(NFIB) (per curiam), the power to impose an eviction

moratorium in Alabama Ass’n of Realtors v. Department of Health & Human Services, 141 S. Ct. 2485, 2488

(2021) (per curiam), or the power to regulate assisted

suicide in Gonzales v. Oregon, 546 U.S. 243, 267-268

(2006).

Third, EPA’s inclusion or exclusion of outside-thefenceline measures in determining the BSER bears no

necessary connection to the stringency of the BSER

and thus how impactful the emission guidelines will be.

See p. 43, supra. The line that the ACE Rule drew between heat-rate improvements and carbon capture and

sequestration, on one hand, and biomass co-firing, averaging, and trading, on the other, does not represent the

line between ordinary and major consequences. A BSER

that includes turbine upgrades as a heat-rate improvement, for instance, might well entail more costly emission limitations than a BSER that includes biomass cofiring. See J.A. 1820 (discussing the “economic[] feasib[ility]” of “turbine blade path upgrades” in light of

the need for “capital investments”); cf. J.A. 1864 (rejecting carbon capture and sequestration as the BSER because of its “high costs”). And for any given level of

overall emission reduction, implementation of a marketbased trading scheme would help to reduce the cost of

achieving compliance.

Fourth, to the extent petitioners expected the CPP

to have significant effects on the power sector, that expectation arose from the specific emission limitations

that the CPP established, which petitioners viewed as

achievable only through major changes to the industry.

In fact, even without the CPP in effect, by 2019 the

power industry had already achieved the supposedly

impossible emission reductions the CPP sought to produce by 2030. J.A. 265, 1785. Those reductions were

achieved in a short period of time as a result of “significant generation shifting” due to “[m]arket-based

forces.” J.A. 1785; see J.A. 1672-1673, 1678-1680.

But even putting to one side that petitioners’ predictions turned out to be wholly inaccurate, significant effects are not an inherent consequence of outside-thefenceline measures generally, or of generation-shifting

mechanisms in particular. See pp. 43, 46, supra. In that

respect, this case is fundamentally different from FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

135-143 (2000), where the logical implication of the

FDA’s findings was that the governing statute would

require the agency to ban tobacco products entirely,

and UARG, 573 U.S. at 324, where the consequence of

EPA’s findings was that the CAA would “require permits for the construction and modification of tens of

thousands, and the operation of millions, of small

sources nationwide.”

Here, by contrast, recognizing EPA’s authority to

include some generation-shifting mechanisms (or outsidethe-fenceline measures more generally) in its BSER

would not compel the agency to utilize such measures at

all, let alone to utilize the most impactful versions of

them. Petitioners’ argument is in essence that, because

EPA’s claimed power to include generation-shifting

mechanisms in a BSER was previously used in the CPP

in a way that was expected (incorrectly) to have significant consequences, whether EPA has that power at all

should be viewed as a major question. But the fact that

some exercises of an agency’s statutory power might be

so consequential as to require specific authorization

from Congress does not mean that all exercises of that

authority are categorically impermissible. In NFIB, for

example, the Court held that Congress had not clearly

authorized the Occupational Health and Safety Administration (OSHA) to adopt measures applicable to all

employers with at least 100 employees to prevent the

workplace spread of COVID-19. 2022 WL 120952, at *3.

But the Court “d[id] not doubt” that OSHA had authority to adopt such requirements “[w]here the virus poses

a special danger because of particular features of an employee’s job or workplace.” Id. at *4. Petitioners accordingly err in urging this Court to hold that all outside-thefenceline measures are impermissible, regardless of the

practical significance or insignificance of the particular

measures EPA will eventually adopt in the future rulemaking.

If regulated entities or States believe that the emission guidelines that are eventually adopted are too

stringent in light of statutory criteria, they can challenge the guidelines on that ground. In such a challenge

(unlike in petitioners’ current request for an anticipatory ruling, see pp. 18-21, supra), the court could evaluate the likely practical consequences of EPA’s choice of

a BSER. Thus, even if petitioners’ characterizations of

the CPP are viewed as apt criticisms of the CPP itself,

they provide no sound basis for categorically excluding

any outside-the-fenceline measures as a permissible

component of the BSER.

Fif th, the “numerous substantial and explicit constraints” that Section 7411 imposes already guard

against the possibility of emission guidelines that have

transformative consequences. J.A. 146. As noted, a

“system of emission reduction” must be “adequately

demonstrated,” and EPA must consider, among other

things, “cost” and “energy requirements” in determining which system is “best.” 42 U.S.C. 7411(a)(1); see

p. 42, supra.

Far from being “illusory,” NACC Br. 29, those constraints have led EPA in prior rulemakings to exclude

from the BSER several measures, including natural-gas

repowering and refueling, J.A. 1795 n.152; natural-gas

co-firing, J.A. 578, 1843-1844; carbon capture and sequestration, J.A. 578, 1864; and biomass co-firing, J.A.

708-709, 1852-1853. In the CPP, for instance, EPA declined to identify natural-gas co-firing or carbon capture and sequestration as part of the BSER because

those measures were “more expensive than other available measures for existing sources.” J.A. 578. Recent

history thus refutes petitioners’ assertion (WV Br. 48)

that, without a categorical bar on outside-the-fenceline

measures (or generation-shifting measures in particular), EPA’s authority to define the BSER would be subject to no meaningful limit.

Sixth, the inclusion of outside-the-fenceline measures

in the BSER is supported by historical precedent. Both

Congress and States have relied on outside-thefenceline measures to address air pollution from power

plants. See p. 28, supra (discussing Regional Greenhouse Gas Initiative); p. 31, supra (discussing Acid Rain

Program’s trading system for power plants). And in the

Clean Air Mercury Rule—the only Section 7411(d)

emission guideline besides the CPP and the ACE Rule

ever issued for existing power plants—EPA likewise included an outside-the-fenceline measure (a trading program) in the BSER. See pp. 37-38, supra.

2. The constitutional-avoidance canon is inapplicable

here

Petitioners also invoke the canon that statutes

should be construed to avoid difficult constitutional issues. They argue that Section 7411 would raise serious

nondelegation concerns if it were construed to allow

outside-the-fenceline measures to be included in a

BSER. WV Br. 47. This Court has long held, however,

that “a delegation is constitutional so long as Congress

has set out an ‘intelligible principle’ to guide the delegee’s exercise of authority.” Gundy v. United States,

139 S. Ct. 2116, 2129 (2019) (plurality opinion) (citation

omitted). In Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001), this Court held that a neighboring

CAA provision—42 U.S.C. 7409(b)(1)—had provided

such a principle by “requiring the EPA to set air quality

standards at the level that is ‘requisite’ * * * to protect

the public health with an adequate margin of safety.”

531 U.S. at 475-476.

The principle set out in Section 7411(a)(1) is no less

intelligible. That provision requires EPA to determine

the BSER, and ultimately the degree of emission limitation achievable by the BSER, by taking various enumerated factors into account. 42 U.S.C. 7411(a)(1). If

Section 7409(b)(1) falls “well within the outer limits of

[this Court’s] nondelegation precedents,” Whitman,

531 U.S. at 474, then so too does Section 7411(a)(1).

3. The federalism canon undermines, rather than supports,

the interpretation adopted in the CPP Repeal and ACE

Rules

Petitioners argue (WV Br. 29) that the CPP “upend[ed] the federal-state balance of power” by requiring “stringent, region-wide emission reductions that

state plans could meet only by restructuring” the power

sector. But petitioners’ concerns about the perceived

stringency of the CPP’s emission limitations do not support a categorical rule excluding outside-the-fenceline

measures from any BSER. See pp. 47-48, supra. The

language in Section 7411(d)(1)(A) on which some petitioners rely, moreover, is directed at States, not EPA.

Construing that language to foreclose inclusion of

outside-the-fenceline measures in state plans would disserve federalism values and increase the burden on regulated entities. See pp. 26-30, supra.

CONCLUSION

The Court should dismiss the petitions for writs of

certiorari or, in the alternative, vacate the D.C. Circuit’s holding that Section 7411 does not unambiguously

bar the use of outside-the-fenceline measures. If the

Court reaches the merits, it should affirm the judgment

below.

Respectfully submitted.

JEFFREY PRIETO

General Counsel

GAUTAM SRINIVASAN

Associate General Counsel

MATTHEW C. MARKS

Deputy Associate General

Counsel

STEPHANIE L. HOGAN

Assistant General Counsel

HOWARD J. HOFFMAN

ABIRAMI VIJAYAN

SCOTT JORDAN

RYLAND SHENGZHI LI

NORA GREENGLASS

DANIEL P. SCHRAMM

STACEY SIMONE GARFINKLE

Attorneys

Environmental Protection

Agency

JANUARY 2022

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

MEGHAN E. GREENFIELD

ERIC G. HOSTETLER

CHLOE H. KOLMAN

Attorneys

APPENDIX

42 U.S.C. 7411 provides:

Standards of performance for new stationary sources

(a)

Definitions

For purposes of this section:

(1) The term “standard of performance” means

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.

(2) The term “new source” means any stationary

source, the construction or modification of which is

commenced after the publication of regulations (or, if

earlier, proposed regulations) prescribing a standard

of performance under this section which will be applicable to such source.

(3) The term “stationary source” means any

building, structure, facility, or installation which

emits or may emit any air pollutant. Nothing in

subchapter II of this chapter relating to nonroad engines shall be construed to apply to stationary internal combustion engines.

(4) The term “modification” means any physical

change in, or change in the method of operation of, a

stationary source which increases the amount of any

air pollutant emitted by such source or which results

(1a)

in the emission of any air pollutant not previously

emitted.

(5) The term “owner or operator” means any

person who owns, leases, operates, controls, or supervises a stationary source.

(6) The term “existing source” means any stationary source other than a new source.

(7) The term “technological system of continuous emission reduction” means—

(A) a technological process for production or

operation by any source which is inherently lowpolluting or nonpolluting, or

(B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air,

including precombustion cleaning or treatment of

fuels.

(8) A conversion to coal (A) by reason of an order

under section 2(a) of the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C.

792(a)] or any amendment thereto, or any subsequent

enactment which supersedes such Act [15 U.S.C.

791 et seq.], or (B) which qualifies under section

7413(d)(5)(A)(ii) 1 of this title, shall not be deemed to

be a modification for purposes of paragraphs (2) and

(4) of this subsection.

See References in text note below.

(b)

List of categories of stationary sources; standards of

performance; information on pollution control techniques; sources owned or operated by United States;

particular systems; revised standards

(1)(A) The Administrator shall, within 90 days after

December 31, 1970, publish (and from time to time

thereafter shall revise) a list of categories of stationary

sources. He shall include a category of sources in such

list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

(B) Within one year after the inclusion of a category

of stationary sources in a list under subparagraph (A),

the Administrator shall publish proposed regulations,

establishing Federal standards of performance for new

sources within such category. The Administrator shall

afford interested persons an opportunity for written

comment on such proposed regulations. After considering such comments, he shall promulgate, within one

year after such publication, such standards with such

modifications as he deems appropriate. The Administrator shall, at least every 8 years, review and, if appropriate, revise such standards following the procedure

required by this subsection for promulgation of such

standards. Notwithstanding the requirements of the

previous sentence, the Administrator need not review

any such standard if the Administrator determines that

such review is not appropriate in light of readily available information on the efficacy of such standard. Standards of performance or revisions thereof shall become

effective upon promulgation. When implementation

and enforcement of any requirement of this chapter indicate that emission limitations and percent reductions

beyond those required by the standards promulgated

under this section are achieved in practice, the Administrator shall, when revising standards promulgated under this section, consider the emission limitations and

percent reductions achieved in practice.

(2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for

the purpose of establishing such standards.

(3) The Administrator shall, from time to time, issue

information on pollution control techniques for categories of new sources and air pollutants subject to the provisions of this section.

(4) The provisions of this section shall apply to any

new source owned or operated by the United States.

(5) Except as otherwise authorized under subsection (h), nothing in this section shall be construed to require, or to authorize the Administrator to require, any

new or modified source to install and operate any particular technological system of continuous emission reduction to comply with any new source standard of performance.

(6) The revised standards of performance required

by enactment of subsection (a)(1)(A)(i) and (ii) 1 shall be

promulgated not later than one year after August 7,

1977. Any new or modified fossil fuel fired stationary

source which commences construction prior to the date

of publication of the proposed revised standards shall

not be required to comply with such revised standards.

(c)

State implementation and enforcement of standards

of performance

(1) Each State may develop and submit to the Administrator a procedure for implementing and enforcing

standards of performance for new sources located in

such State. If the Administrator finds the State procedure is adequate, he shall delegate to such State any authority he has under this chapter to implement and enforce such standards.

(2) Nothing in this subsection shall prohibit the Administrator from enforcing any applicable standard of

performance under this section.

(d)

Standards of performance for existing sources;

remaining useful life of source

(1) The Administrator shall prescribe regulations

which shall establish a procedure similar to that provided by section 7410 of this title under which each State

shall submit to the Administrator a plan which (A) establishes standards of performance for any existing

source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a

list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing

source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under

this paragraph shall permit the State in applying a

standard of performance to any particular source under

a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful

life of the existing source to which such standard applies.

(2) The Administrator shall have the same authority—

(A) to prescribe a plan for a State in cases where

the State fails to submit a satisfactory plan as he

would have under section 7410(c) of this title in the

case of failure to submit an implementation plan, and

(B) to enforce the provisions of such plan in

cases where the State fails to enforce them as he

would have under sections 7413 and 7414 of this title

with respect to an implementation plan.

In promulgating a standard of performance under a plan

prescribed under this paragraph, the Administrator

shall take into consideration, among other factors, remaining useful lives of the sources in the category of

sources to which such standard applies.

(e)

Prohibited acts

After the effective date of standards of performance

promulgated under this section, it shall be unlawful for

any owner or operator of any new source to operate such

source in violation of any standard of performance applicable to such source.

(f )

New source standards of performance

(1) For those categories of major stationary sources

that the Administrator listed under subsection (b)(1)(A)

before November 15, 1990, and for which regulations

had not been proposed by the Administrator by November 15, 1990, the Administrator shall—

(A) propose regulations establishing standards

of performance for at least 25 percent of such categories of sources within 2 years after November 15,

1990;

(B) propose regulations establishing standards

of performance for at least 50 percent of such categories of sources within 4 years after November 15,

1990; and

1990.

(2) In determining priorities for promulgating standards for categories of major stationary sources for

the purpose of paragraph (1), the Administrator shall

consider—

(A) the quantity of air pollutant emissions which

each such category will emit, or will be designed to

emit;

(B) the extent to which each such pollutant may

reasonably be anticipated to endanger public health

or welfare; and

such category of sources and the consequent need for

nationally applicable new source standards of performance.

(3) Before promulgating any regulations under this

subsection or listing any category of major stationary

sources as required under this subsection, the Administrator shall consult with appropriate representatives of

the Governors and of State air pollution control agencies.

(g)

Revision of regulations

(1) Upon application by the Governor of a State

showing that the Administrator has failed to specify in

regulations under subsection (f )(1) any category of major stationary sources required to be specified under

such regulations, the Administrator shall revise such

regulations to specify any such category.

(2) Upon application of the Governor of a State,

showing that any category of stationary sources which

is not included in the list under subsection (b)(1)(A) contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare

(notwithstanding that such category is not a category of

major stationary sources), the Administrator shall revise such regulations to specify such category of stationary sources.

(3) Upon application of the Governor of a State

showing that the Administrator has failed to apply

properly the criteria required to be considered under

subsection (f )(2), the Administrator shall revise the list

under subsection (b)(1)(A) to apply properly such criteria.

(4) Upon application of the Governor of a State

showing that—

(A) a new, innovative, or improved technology

or process which achieves greater continuous emission reduction has been adequately demonstrated for

any category of stationary sources, and

(B) as a result of such technology or process, the

new source standard of performance in effect under

this section for such category no longer reflects the

greatest degree of emission limitation achievable

through application of the best technological system

of continuous emission reduction which (taking into

consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impact and energy requirements) has been

adequately demonstrated,

the Administrator shall revise such standard of performance for such category accordingly.

(5) Unless later deadlines for action of the Administrator are otherwise prescribed under this section, the

Administrator shall, not later than three months following the date of receipt of any application by a Governor

of a State, either—

(A) find that such application does not contain

the requisite showing and deny such application, or

(B) grant such application and take the action

required under this subsection.

(6) Before taking any action required by subsection

(f ) or by this subsection, the Administrator shall provide

notice and opportunity for public hearing.

(h)

Design, equipment, work practice, or operational

standard; alternative emission limitation

(1) For purposes of this section, if in the judgment

of the Administrator, it is not feasible to prescribe or

enforce a standard of performance, he may instead

promulgate a design, equipment, work practice, or operational standard, or combination thereof, which reflects

the best technological system of continuous emission reduction which (taking into consideration the cost of

10a

achieving such emission reduction, and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. In the event the Administrator promulgates a design or equipment standard under

this subsection, he shall include as part of such standard

such requirements as will assure the proper operation

and maintenance of any such element of design or equipment.

(2) For the purpose of this subsection, the phrase

“not feasible to prescribe or enforce a standard of performance” means any situation in which the Administrator determines that (A) a pollutant or pollutants cannot

be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any

requirement for, or use of, such a conveyance would be

inconsistent with any Federal, State, or local law, or (B)

the application of measurement methodology to a particular class of sources is not practicable due to technological or economic limitations.

(3) If after notice and opportunity for public hearing, any person establishes to the satisfaction of the Administrator that an alternative means of emission limitation will achieve a reduction in emissions of any air

pollutant at least equivalent to the reduction in emissions of such air pollutant achieved under the requirements of paragraph (1), the Administrator shall permit

the use of such alternative by the source for purposes of

compliance with this section with respect to such pollutant.

11a

(4) Any standard promulgated under paragraph (1)

shall be promulgated in terms of standard of performance whenever it becomes feasible to promulgate and

enforce such standard in such terms.

(5) Any design, equipment, work practice, or operational standard, or any combination thereof, described

in this subsection shall be treated as a standard of performance for purposes of the provisions of this chapter

(other than the provisions of subsection (a) and this subsection).

(i)

Country elevators

Any regulations promulgated by the Administrator

under this section applicable to grain elevators shall not

apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two

million five hundred thousand bushels.

( j)

Innovative technological systems of continuous

emission reduction

(1)(A) Any person proposing to own or operate a

new source may request the Administrator for one or

more waivers from the requirements of this section for

such source or any portion thereof with respect to any

air pollutant to encourage the use of an innovative technological system or systems of continuous emission reduction. The Administrator may, with the consent of

the Governor of the State in which the source is to be

located, grant a waiver under this paragraph, if the Administrator determines after notice and opportunity for

public hearing, that—

(i) the proposed system or systems have not

been adequately demonstrated,

12a

(ii) the proposed system or systems will operate

effectively and there is a substantial likelihood that

such system or systems will achieve greater continuous emission reduction than that required to be

achieved under the standards of performance which

would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, economic, or nonair quality environmental impact,

(iii) the owner or operator of the proposed source

has demonstrated to the satisfaction of the Administrator that the proposed system will not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation, function, or malfunction, and

(iv) the granting of such waiver is consistent with

the requirements of subparagraph (C).

In making any determination under clause (ii), the Administrator shall take into account any previous failure

of such system or systems to operate effectively or to

meet any requirement of the new source performance

standards. In determining whether an unreasonable

risk exists under clause (iii), the Administrator shall

consider, among other factors, whether and to what extent the use of the proposed technological system will

cause, increase, reduce, or eliminate emissions of any

unregulated pollutants; available methods for reducing

or eliminating any risk to public health, welfare, or

safety which may be associated with the use of such system; and the availability of other technological systems

which may be used to conform to standards under this

section without causing or contributing to such unreasonable risk. The Administrator may conduct such

13a

tests and may require the owner or operator of the proposed source to conduct such tests and provide such information as is necessary to carry out clause (iii) of this

subparagraph. Such requirements shall include a requirement for prompt reporting of the emission of any

unregulated pollutant from a system if such pollutant

was not emitted, or was emitted in significantly lesser

amounts without use of such system.

(B) A waiver under this paragraph shall be granted

on such terms and conditions as the Administrator determines to be necessary to assure—

(i) emissions from the source will not prevent attainment and maintenance of any national ambient

air quality standards, and

(ii) proper functioning of the technological system or systems authorized.

Any such term or condition shall be treated as a standard of performance for the purposes of subsection (e) of

this section and section 7413 of this title.

of continuous emission reduction shall not exceed such

number as the Administrator finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses (ii) and (iii) of subparagraph

(A).

(D) A waiver under this paragraph shall extend to

the sooner of—

(i) the date determined by the Administrator,

after consultation with the owner or operator of the

14a

source, taking into consideration the design, installation, and capital cost of the technological system or

systems being used, or

(ii) the date on which the Administrator determines that such system has failed to—

(I) achieve at least an equivalent continuous

emission reduction to that required to be achieved

under the standards of performance which would

otherwise apply, or

(II) comply with the condition specified in

paragraph (1)(A)(iii),

and that such failure cannot be corrected.

(E) In carrying out subparagraph (D)(i), the Administrator shall not permit any waiver for a source or portion thereof to extend beyond the date—

(i) seven years after the date on which any

waiver is granted to such source or portion thereof,

(ii) four years after the date on which such

source or portion thereof commences operation,

whichever is earlier.

(F) No waiver under this subsection shall apply to

any portion of a source other than the portion on which

the innovative technological system or systems of continuous emission reduction is used.

(2)(A) If a waiver under paragraph (1) is terminated under clause (ii) of paragraph (1)(D), the Administrator shall grant an extension of the requirements of

this section for such source for such minimum period as

15a

may be necessary to comply with the applicable standard of performance under this section. Such period

shall not extend beyond the date three years from the

time such waiver is terminated.

(B) An extension granted under this paragraph shall

set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable standards of performance as

expeditiously as practicable and include such measures

as are necessary and practicable in the interim to minimize emissions. Such schedule shall be treated as a

standard of performance for purposes of subsection (e)

of this section and section 7413 of this title.

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