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

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

In the

Supreme Court of the United States

_________________________

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondents.

_________________________

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

_________________________

BRIEF OF AMICUS CURIAE THOMAS C.

JORLING IN SUPPORT OF RESPONDENTS

_________________________

SEAN B. HECHT

Counsel of Record

UCLA School of Law

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 794-5272

hecht@law.ucla.edu

THEODORE E. LAMM

UC Berkeley School of Law

215 Bancroft Way

Berkeley, CA 94720

(510) 642-6774

tlamm@law.berkeley.edu

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST .................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................. 5

I.

Introduction ..................................................... 5

II.

Congress designed the Clean Air Act as a

comprehensive federal framework to address the

impacts of air pollution ............................................ 6

A.

Congress developed the Act to remedy

decades of inadequate federal pollution control

authority and prevent air pollution from

worsening in the future. ....................................... 6

B.

Congress designed the Act to

comprehensively address contemporaneous and

future impacts to health and welfare. ................. 8

C.

Congress designed Section 111(d) as an

integral gap-filling component of this

comprehensive framework. ................................ 11

III. Congress granted EPA the authority to craft

effective regulatory actions to implement the

Clean Air Act’s public health and welfare

protections ............................................................... 13

A.

Congress designed the Act to be

technology-forcing where necessary to protect

public health and welfare. .................................. 15

ii

B.

Congress designed the Act, including

Section 111, to encompass a range of potential

pollution control strategies based on EPA’s

empirical, practical assessment of the best

system of emission reduction adequately

demonstrated in each case. ................................ 16

C.

Congress appropriately granted EPA

significant rulemaking authority to limit

emissions of dangerous air pollution, including

where doing so might have a significant social or

economic impact. ................................................. 21

CONCLUSION ........................................................... 29

TABLE OF AUTHORITIES

Cases

American Elec. Power Co., Inc. v. Connecticut, 564

U.S. 410 (2011) ................................................ 21, 24

American Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir.

2021) .............................................................3, 13, 19

Bostock v. Clayton County, Georgia, 140 S.Ct. 1731

(2020)............................................................3, 24, 27

Chevron, U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837

(1984)............................................................3, 17, 20

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

............................................................................. 26, 27

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

489 (2014) ................................................................. 20

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

NRDC, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974) ... 15

iii

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981)

................................................................................ 26

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

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

(2014)...................................................................... 23

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

(2001).............................................................. passim

Statutes

42 U.S.C. § 7401(b) ............................................... 23, 27

42 U.S.C. § 7409(d) ..................................................... 10

42 U.S.C. § 7410(a) ..................................................... 16

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

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

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

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

42 U.S.C. § 7602(g) ............................................... 24, 27

42 U.S.C. § 7602(h) ............................................... 23, 27

42 U.S.C. § 1857 (1970) .................................... 8, 10, 13

42 U.S.C. § 1857b (1970) ....................................... 10

42 U.S.C. § 1857c-3 (1970) ..................................... 9, 12

42 U.S.C. § 1857c-4 (1970) ................................. passim

42 U.S.C. § 1857c-5 (1970) ............................. 10, 12, 16

42 U.S.C. § 1857c-6 (1970) ................................. passim

42 U.S.C. § 1857c-7 (1970) ................................... 12, 23

42 U.S.C. § 1857f-1 (1970) ..................................... 10

42 U.S.C. § 1857h (1970) ............................................. 9

iv

Other Authorities

P.L. 84-159 (1955)......................................................... 7

P.L. 88-206 (1963)......................................................... 7

P.L. 89-271 (1965)......................................................... 7

P.L. 90-148 (1967)......................................................... 7

P.L. 91-604 (1970)............................................... passim

46 Fed. Reg. 50,766 (Oct. 14, 1981) .......................... 17

70 Fed. Reg. 28,606 (May 18, 2005) .......................... 17

76 Fed. Reg. 48,208 (Aug. 8, 2011)............................ 18

80 Fed. Reg. 64,662 (Oct. 23, 2015) .......................... 18

S. 4358 (1970) ............................................................. 12

H.R. 3826 (2014) ......................................................... 25

S. Rept. 91-1196 (1970) ...................................... passim

1 Envtl. Policy Div., Library of Congress, A

Legislative History of the Clean Air Act

Amendments of 1970 (1974) ............................... 9, 25

Thomas C. Jorling, The Federal Law of Air Pollution

Control, in Environmental Law Institute, FEDERAL

ENVIRONMENTAL LAW 1061 (Erica L. Dolgin and

Thomas G. P. Guilbert eds., 1974) (“Fed. Env. L.”)

........................................................................... passim

Richard L. Revesz, “Bostock and the End of the

Climate Change Double Standard,” 46 Columbia

Env. L. J. 1 (2020) ........................................... 9, 18

1

STATEMENT OF INTEREST1

Amicus Thomas C. Jorling is a leading expert on

the drafting, implementation, and evolution of the

Clean Air Act. Mr. Jorling has developed renowned

expertise in air quality and environmental policy in

his leadership roles in government, industry, and the

academy, including Assistant Administrator at the

United States Environmental Protection Agency,

Commissioner of the New York State Department of

Environmental Conservation, Director of the Center

for Environmental Studies at Williams College, Vice

President of Environmental Affairs for International

Paper Company, and leader together with fellow

former Senate staff member Leon G. Billings of a

university course series on the origins and structure

of federal environmental law.

As Minority Counsel for the United States Senate

Committee on Public Works from 1968 to 1972, Mr.

Jorling was directly engaged in the drafting and

deliberations that resulted in the 1970 Clean Air Act

Amendments, gaining an unparalleled understanding

of the Act’s design and underlying principles. Based

on this intimate knowledge, Mr. Jorling authored a

contemporaneous, authoritative analysis of the 1970

Amendments as part of the Environmental Law

Institute’s effort to develop the first “comprehensive

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici made a monetary contribution

intended to fund the preparation or submission of this brief. The

parties have all consented to the filing of this amicus brief.

Counsel Sean B. Hecht and Theodore E. Lamm provide their

institutional affiliations solely for purposes of identification and

do not imply any institutional endorsement of the views

expressed here.

2

and analytical description of this new body of federal

law.” Fed. Env. L. at 4. In his subsequent roles at

federal and state environmental agencies, Mr. Jorling

was directly responsible for interpreting and

implementing the Clean Air Act, and today he is

widely recognized as an architect of and expert on the

law. He has submitted this brief because he believes

that Congress drafted the Clean Air Act, including

Section 111(d), as a comprehensive and flexible

framework to effectively regulate all air pollutants

(including carbon dioxide) that may endanger public

health and welfare including, where necessary,

through the issuance of regulations with significant

economic impacts and the implementation of emission

reduction strategies that are not limited to

application “to and at” individual sources.

3

SUMMARY OF ARGUMENT

Section 111(d) of the Clean Air Act authorizes EPA

to regulate emissions of non-criteria, non-hazardous

air pollutants from stationary sources through

identification of the “best system of emission

reduction” that is “adequately demonstrated.” 42

U.S.C. §§ 7411(a), (d). As the D.C. Circuit panel noted,

Congress “knew both the scope and importance of

what it was doing” when it created this authority and

crafted Section 111(d) to play a vital and deliberate

role in ensuring no gaps among regulated sources.

American Lung Ass’n v. EPA, 985 F.3d 914, 964 (D.C.

Cir. 2021), cert. granted, 142 S.Ct. 420 (Oct. 29, 2021)

(No. 20-1530).

Since the earliest

days of the Act’s

implementation, courts have understood its

comprehensive regulatory regime to include a wide

range of flexible, technology-forcing, and potentially

industry-altering

standards,

subject

to

the

considerations and limitations stated expressly in the

statutory text. See, e.g., Whitman v. American

Trucking Ass’ns, 531 U.S. 457, 466 (2001); Chevron,

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865 (1984);

Union Elec. Co. v. EPA, 427 U.S. 246, 256-257 (1976).

And there is ample “evidence that … Member[s] of

Congress interpreted the statutory text that way,”

Bostock v. Clayton County, Georgia, 140 S.Ct. 1731,

1757 (2020) (Alito, J., dissenting), when the 1970

Amendments were enacted.

Congress explicitly directed EPA to base Section

111 performance standards on the “best system of

emission

reduction”

that

is

“adequately

demonstrated” for a particular source category. 42

4

U.S.C. § 7411(a)(1). This Congressional command

ensures that these standards will reflect what is

realistically achievable in that source category.

Application of this flexible but empirically driven

regulatory mechanism to reduce harmful emissions

from existing sources (as Section 111(d) requires) may

have significant impacts to industry, where Section

111’s statutory command supports that outcome.

When such impacts occur, that is a result of

Congress’s decision assign EPA the responsibility to

implement Congressionally specified standards in

order to protect public health and welfare under the

Act.

“The Clean Air Act authorizes a regulatory

program of great significance, for the reach of the

power extends to every activity and individual in our

society. The implications of this are, of course,

profound.” Fed. Env. L. at 1143. Congress was fully

aware that this authorization was vital to prevent the

Act from becoming “obsolete” and intentionally

crafted the law to include a combination of farreaching goals, comprehensive coverage of pollutants

and sources, flexible regulatory authority, and

technology-forcing capacity in order to “forestall such

obsolescence.” Massachusetts v. EPA, 549 U.S. 497,

532 (2007). And as the intent, structure, and text of

the Act make clear, Congress deliberately afforded

EPA the discretion (within explicitly stated statutory

limitations) to consider a wide range of practical

emission reduction strategies—not just those applied

“to and at” an individual source—when setting

emission standards to achieve its statutory purpose.

5

ARGUMENT

I.

Introduction

When Congress enacted the 1970 Clean Air Act

Amendments, it crafted a comprehensive framework

to serve a broad public health and welfare mandate

and directed EPA to undertake a variety of regulatory

actions to achieve air quality goals. This framework

encompasses a range of potential measures, including

technology-forcing and market-based approaches

where appropriate, and is designed to ensure there

are no gaps in either sources or types of air pollution.

As a result, the Act authorizes EPA to take necessary

steps—guided by the Act’s explicit guardrails—to

address air pollution and promote public health and

welfare, including steps that may have significant

economic impacts.

As part of this framework, Congress crafted

Section 111(d) to ensure control of non-criteria, nonhazardous pollutants from stationary sources.

Congress both enabled EPA to develop flexible

regulatory standards and required the agency to base

those standards on an empirical analysis of

adequately

demonstrated

emission

reduction

systems. To appropriately interpret the Act—as a

statute designed to achieve its stated purpose—the

Court should continue to afford EPA the flexibility

that Congress originally authorized, within express

boundaries, to implement achievable solutions that

protect public health and welfare.

6

II.

Congress designed the Clean Air Act as

a comprehensive federal framework to

address the impacts of air pollution

The

1970

Amendments

represented

a

transformative moment in the federal response to

pressing threats to public health and the

environment: “a drastic remedy to what was

perceived as a serious and otherwise uncheckable

problem of air pollution.” Union Elec. Co. v. EPA, 427

U.S. at 256. To succeed where past attempts had

failed to achieve the statutory goal of promoting

public health and welfare by protecting and

enhancing air quality, Congress crafted a new

regulatory approach involving broadly defined public

protection goals, substantial federal standard-setting

and enforcement authority, and comprehensive

coverage of sources and pollutants. To implement this

approach, Congress vested EPA with the duty and the

legal tools needed to protect public health and

welfare. Congress contemplated and required that

EPA would continuously improve the understanding

of air pollution, limit the allowable pollution in the

ambient air, and control the emission of pollutants

from a wide variety of pollution sources.

A. Congress developed the Act to remedy

decades of inadequate federal pollution

control authority and prevent air

pollution from worsening in the future.

While the 1970 Amendments established the

Clean Air Act in its current form, these amendments

were the fifth attempt by Congress to address an air

pollution problem that had become pervasive with

increasing industrialization and the growth of

7

vehicular travel. A review of prior efforts, which

“operated effectively to sanction what industry—on

its terms—was willing to do” and “with little

regulatory significance,” Fed. Env. L. at 1061, shows

that Congress designed the 1970 Amendments to

empower EPA

to

regulate air pollutants

comprehensively, at the federal level, for the first

time. The enacting Congress sought nothing less than

to “establish that the air is a public resource, and that

those who would use that resource must protect it

from abuse.” S. Rept. 91-1196 at 4.

Congress’s first major attempt to address air

pollution at the federal level, the 1955 Air Pollution

Control Act, P.L. 84-159, authorized the Surgeon

General to conduct research on air pollution but

established no emission limits or regulatory

authority. With air pollution only having worsened, in

1963 Congress enacted the Clean Air Act, P.L. 88-206,

which required the Public Health Service to publish

air quality criteria documents for specific pollutants

and encouraged the States to cooperate in pollution

control efforts. The 1963 Act established Congress’s

commitment to “promote the public health and

welfare” through the “prevention and control” of air

pollution.

In 1965, recognizing the inadequacy of nonregulatory strategies to address national conditions,

Congress amended the Act, P.L. 89-271, establishing

standards for automobile emissions of certain

pollutants. Just two years later, having identified the

need to control air pollution from all source

categories, Congress amended the Act again, P.L. 90148, directing air quality control regions in the states

to adopt air quality standards for specific pollutants.

8

However, seeing that the “air pollution problem

[was] more severe, more pervasive, and growing at a

more rapid rate than was generally believed” and that

the federal air quality program was “underfunded and

undermanned,” Congress enacted the 1970

Amendments to “provide a much more intensive and

comprehensive attack on air pollution” than the

previous iterations of the Act. S. Rept. 91-1196 at 4.

The aim of the Amendments was to “broaden[]” “the

requirements for State action,” “greatly increase[]”

“the obligation on polluters,” and create a program

“truly national in scope,” Id. at 2.

The 1970 Amendments reflect “nearly total federal

supervisory and approval authority” to set ambitious

emission standards. Fed. Env. L. at 1063. The goal of

the legislation was to “restructure the methods

available” and “to authorize a massive attack on air

pollution.” S. Rept. 91-1196 at 1.

B. Congress

designed

the

Act

to

comprehensively

address

contemporaneous and future impacts to

health and welfare.

Congress made clear in the 1970 Amendments

that it had designed this federal authority to protect

Americans from the negative impacts of air pollution.

The primary purpose of the Act, as articulated in the

text of the original 1963 Act and reiterated in the

1970 Amendments, was (and is) “to protect and

enhance the quality of the Nation’s air resources so as

to promote the public health and welfare.” P.L. 91-604

§ 101(b)(1), 42 U.S.C. § 1857 (1970). Most of the 1970

Amendments’

stationary

source

provisions—

regarding listing criteria pollutants, establishing

9

national ambient air quality standards, and

regulating particular source categories through

performance standards—focused (and still focus) on

the harmful impacts of air pollutants on “public

health and welfare.” P.L. 91-604 §§ 108(a)(1)-(2),

109(b)(1)-(2), 111(b)(1)(A), 42 U.S.C. §§ 1857c-3,

1857c-4, 1857c-6 (1970). The statute defined (and still

defines) “welfare” to include “effects on … climate,”

P.L. 91-604, § 302(h), 42 U.S.C. § 1857h (1970), as

well as impacts to the natural environment, property,

and well-being.

This reference to “climate” was no stray addition;

as the Court has recognized, the Act’s coverage of

greenhouse gases as air pollutants is “unambiguous.”

Massachusetts v. EPA, 549 U.S. at 529; see also

Richard L. Revesz, “Bostock and the End of the

Climate Change Double Standard,” 46 Columbia

Env. L. J. 1, 32-44 (2020) (detailing a wide cohort of

members of Congress, federal agency personnel, and

scientific experts directly involved in the development

and passage of the 1970 Amendments who were alert

to and expressed concern about the potential for

certain air pollutants to negatively impact the

climate, and in particular for greenhouse gases to

cause global warming). Indeed, Congress deliberately

included climate impacts based on an early

understanding of the potential effects of air pollution

on climate. Authorization of national ambient air

quality standards was premised on recognition “that

man’s natural and man-made environment must be

preserved and protected” from “any known or

anticipated adverse effects of air pollution—including

effects on soils, water, vegetation, man-made

materials, animals, wildlife, visibility, climate, and

10

economic values.” S. Rept. 91-1196 at 11. Senators

responsible for crafting the Act’s key provisions were

acutely aware that air pollution could threaten

“irreversible atmospheric and climatic changes.” 1

Envtl. Policy Div., Library of Congress, A Legislative

History of the Clean Air Act Amendments of 1970

(1974) at 224 (Sep. 21, 1970) (Statement of Sen.

Muskie), 349 (Sep. 21, 1970) (Statement of Sen.

Scott).

Moreover, Congress was aware that air pollution

did not present a static threat, but rather would

require iterative, fact-based regulatory approaches

to address emergent problems. Thus, Congress also

crafted the Act’s purpose “to initiate and accelerate

a national research and development program to

achieve the prevention and control of air pollution,”

P.L. 91-604 § 101(b)(2), 42 U.S.C. § 1857 (1970), and

established such a program including a focus on

“long-term effects” of air pollution, P.L. 91-604 §

103(f), 42 U.S.C. § 1857b (1970).

To address scientific developments that might

emerge from this or other programs, Congress

designed the Act’s regulatory programs to require or

allow regular revision of standards and emission

limits as appropriate when knowledge of air

pollution and its effects evolved. See, e.g., P.L. 91604 § 109(b)(1)-(2), 42 U.S.C. § 1857c-4 (1970) (“Such

[primary or secondary] standards may be revised in

the same manner as promulgated”), later amended,

42 U.S.C. § 7409(d) (requiring regular five-year

review and revision for all ambient air quality

standards); P.L. 91-604 § 110(a)(2)(H), 42 U.S.C. §

1857c-5 (1970) (requiring revisions to state

implementation plans to achieve and maintain

11

compliance with air quality standards); P.L. 91-604

§ 202(a)(1), 42 U.S.C. § 1857f-1 (1970) (directing

EPA to “prescribe (and from time to time revise)”

mobile source standards). In Section 111, Congress

similarly permitted EPA to “revise” stationary

source standards “from time to time,” P.L. 91-604 §

111(b)(1)(B), 42 U.S.C. § 1857c-6 (1970), and later

amended the section to affirmatively require review

and revision “at least every 8 years,” 42 U.S.C. §

7411(b)(1)(B).

In seeking to “assure the protection of the health

of every American,” S. Rept. 91-1196 at 4, Congress

was aware of—and crafted a regulatory program to

address—both the full scope of air pollutants and

their harmful impacts, and the full scope of air

pollution sources, explicitly accounting for future

changes in pollutants, impacts, and sources as

technology and scientific knowledge continue to

evolve. Correct interpretation of the Act, and in

particular of the provisions that Congress added in

the

1970

Amendments,

thus

requires

a

comprehensive and iterative understanding of the

regulatory framework.2

C. Congress designed Section 111(d) as an

integral gap-filling component of this

comprehensive framework.

2 As amicus commented at the time, “[N]one of the provisions of

the Act can be read alone or understood without reference to

other provisions of the Act. The Act is akin to an eco-system, with

a network of relationships that are as important as the separate

constituent authorizations to an understanding of its operation

and impact.” Fed. Env. L. at 1066.

12

To enact this combination of expansive federal

authority and a broad public health and welfare

mandate, Congress developed a comprehensive

framework to ensure all air pollution from existing

stationary sources was subject to regulation under

the Act. This framework relied on development of

ambient

air quality

standards and state

implementation plans for “criteria” pollutants, P.L.

91-604 §§ 108-110, 42 U.S.C. §§ 1857c-3 – 1857c-5

(1970); federal emission standards for “hazardous”

pollutants, P.L. 91-604 § 112, 42 U.S.C. § 1857c-7

(1970); and a hybrid approach, consisting of both

federal emission limitations and state performance

standards and implementation plans to implement

those limitations, for non-criteria, non-hazardous

pollutants, P.L. 91-604 § 111(d)(1), 42 U.S.C. §§

1857c-6 (1970).

This last provision—originally crafted as a standalone Section 114 in the Senate version of the 1970

Amendments, S. 4358, and incorporated as Section

111(d), using Section 111(a)’s performance standard

process, to align the Senate and House bill

structures—was “a mechanism to regulate those air

pollutants which otherwise might not be subject to

any regulation” under the Act. Fed. Env. L. at 1106.

Congress specifically designed it to ensure that EPA

had authority to appropriately regulate all air

pollutants that endanger public health or welfare,

including those, like carbon dioxide, that do not

qualify as criteria pollutants or hazardous air

pollutants.3

3 Section 111(d)’s gap-filling role for existing source regulation is

underscored by its location alongside the Section 111 provisions

13

Section 111(d) is far from an “ancillary provision,”

Petition for Writ of Certiorari at 1, Brief of

Westmoreland Mining Holdings LLC at 38; it is a core

statutory component that ensures “no gaps in control

activities pertaining to stationary source emissions

that pose any significant danger to public health or

welfare.” S. Rept. 91-1196 at 20. As the D.C. Circuit

panel acknowledged, EPA’s obligation to regulate

greenhouse gas emissions from stationary sources

under Section 111 is “no doubt a significant task for

the EPA …. It is the product of Congress’ charge that

the EPA regulate air pollution nationwide.” American

Lung Ass’n v. EPA, 985 F.3d at 961.

III.

Congress granted EPA the authority to

craft effective regulatory actions to

implement the Clean Air Act’s public

health and welfare protections

As part of its overall design of comprehensive

federal authority to address air pollution, Congress

designed the 1970 Amendments to enable EPA to

craft flexible and effective regulatory approaches to

tackle novel or difficult challenges, such as the

impacts of greenhouse gas emissions on climate. As

the Court has noted, Congress understood “that

without

regulatory

flexibility,

changing

circumstances and scientific developments would

soon render the Clean Air Act obsolete.”

Massachusetts v. EPA, 549 U.S. at 532. Congress

prioritized protection of health and welfare in the text

for new source regulations, “[s]ince standards of performance

governing new sources are comprehensive, regulating the

emissions of all pollutants from such sources.” Fed. Env. L. at

1106 (emphasis in original).

14

of the Act, P.L. 91-604 § 101(b), 42 U.S.C. § 1857

(1970) (identifying protection of public health and

welfare as primary statutory goals with no

countervailing considerations), see Whitman v.

American Trucking Ass’ns, Inc., 531 U.S. at 468-469

(rejecting consideration of countervailing factors

except where expressly stated), and its regulatory

strategies reflected this priority, see Union Elec. Co.

v. EPA, 427 U.S. at 257 (“[The 1970 Amendments] are

expressly designed to force regulated sources to

develop pollution control devices that might at the

time appear to be economically or technically

infeasible”).

Congress recognized that “the health of people is

more important than the question of whether the

early achievement of ambient air quality standards

protective of health is technically feasible,” S. Rept.

91-1196 at 2, and designed the Act’s provisions

accordingly. As a result, Congress made the choice,

reflected in the statutory language, to design the Act

to be technology-forcing, to allow regulatory

flexibility, and to require actions from EPA to meet

Congress’s policy goals, including actions with broad

economic or social significance where appropriate to

protect public health and welfare. 4

4 The significance of this new regime was clear at the time: “The

Clean Air Act, coupled with the new 1972 Water Pollution

Control Act Amendments, grants regulatory power to the

administrator of EPA far beyond that possessed by other

traditional federal regulatory commissions … regulat[ing] not

just one or another industry type or practice, but rather

regulat[ing] nearly all industry….” Fed. Env. L. at 1066.

15

A. Congress designed the Act to be

technology-forcing where necessary to

protect public health and welfare.

Congress recognized that this new cooperative

federal-state scheme to implement air quality

standards in order to protect public health and

welfare would have wide-ranging industrial and

economic consequences: the Act would “require major

action throughout the Nation” including “major

investments in new technology and new processes”

and “altered operating procedures or a change of

fuels.” S. Rept. 91-1196 at 2. This understanding is

reflected in the text of the Act, and has been

recognized by courts, including this Court,

consistently for decades.

The technology-forcing feature of the 1970

Amendments was intentionally designed to “repair”

the failings of the prior iterations of the Act: “because

[the pre-1970 Act] did not affirmatively press

technology, the law, in a perverse turn, actually

authorized restraint.” Fed. Env. L. at 1061.5 “All of

the

procedural,

programmatic,

and

other

requirements” of the 1970 Amendments are “more

meaningful if read in relationship to [that] repair.” Id.

at 1062.

Federal courts immediately recognized that the

“approach of the Amendments … was to shift from the

approach of earlier legislation of establishing air

5 It was precisely the lack of clear instruction from Congress that

led to ineffective air quality regulation prior to the 1970

Amendments: “With unbounded discretion as their only reed,

federal agency officials engaged primarily in cajoling exercises,

with little regulatory significance.” Fed. Env. L. at 1061.

16

pollution standards commensurate with existing

technological feasibility to a bolder policy which forces

technology to catch up with the newly promulgated

standards.” NRDC, Inc. v. EPA, 489 F.2d 390, 401

(5th Cir. 1974), rev’d on other grounds sub nom. Train

v. NRDC, 421 U.S. 60 (1975) (internal quotation

marks omitted). The Court has similarly recognized

that Congress was “unquestionably aware” of the

potential industry-altering implications of stringent

air quality protections. Whitman v. American

Trucking Ass’ns, 531 U.S. at 466.

B. Congress designed the Act, including

Section 111, to encompass a range of

potential pollution control strategies

based on EPA’s empirical, practical

assessment of the best system of emission

reduction adequately demonstrated in

each case.

As part of this robust regulatory approach,

Congress deliberately authorized varied strategies to

control air pollution in different settings. Those

strategies are diverse and designed to improve air

quality comprehensively, even in situations where

pollution sources may be complex and involve many

sectors of the economy.

For criteria pollutants, for example, Congress

required EPA to issue national ambient air quality

standards that “in the judgment of the Administrator

… are requisite to protect” the public health and

welfare. P.L. 91-604 § 109(b)(1)-(2), 42 U.S.C. § 1857c4 (1970). To achieve and maintain these standards,

Congress authorized a flexible planning exercise that

could include “emission limitations, schedules, and

17

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

[compliance], including, but not limited to, land-use

and transportation controls.” P.L. 91-604 §

110(a)(2)(B), 42 U.S.C. § 1857c-5 (1970). Congress

later added “economic incentives such as fees,

marketable permits, and auctions of emissions rights”

to the strategies that could be utilized to achieve these

standards, 42 U.S.C. § 7410(a)(2)(A), in response to

calls from environmental and industry advocates and

academic experts to incorporate more cost-effective

emission reduction strategies.

Congress focused Section 111 on new and existing

stationary sources, with Section 111(d) compliance

responsibilities expressly modeled on the Section 110

procedural model assigning tasks to EPA and the

states. P.L. 91-604 § 111(d), 42 U.S.C. § 1857c-6

(1970) (calling for EPA to devise a “a procedure

similar to that provided by section 110”). There is

nothing in the text or history of Section 111(d) that

suggests it was not designed to have similar breadth

or flexibility. On the contrary, Section 111(d) was

specifically designed to empower EPA to address

emissions of non-criteria, non-hazardous pollutants

from existing stationary sources, which were left

inadequately regulated under other sections of the

Act. At the same time, the flexible methods that

Section 111 contemplates EPA might consider when

setting emission standards, including under Section

111(d), are tailored to real-world assessments of the

best way to regulate specific pollutants emitted from

specific source categories: Congress directed EPA to

establish performance standards

against

a

benchmark of the particular characteristics of and

18

strategies available to each industry. See 42 U.S.C. §

7411(a)(1) (requiring the EPA Administrator to

determine the “best system of emission reduction”

that has been “adequately demonstrated” in order to

set performance standards for a particular source

category).

EPA and the Court have long recognized that

Congress authorized EPA to take varied approaches

in designing and approving emission reduction

strategies across these Clean Air Act programs.

Examples include emissions trading between sources

within a conceptual “bubble” as part of State

Implementation Plan compliance, 46 Fed. Reg.

50,766, Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.

at 863-865; cap-and-trade mechanisms as the “best

system of emission reduction” for certain pollutants,

70 Fed. Reg. 28,606, 28,617; and implementation of

emissions trading programs to limit interstate air

pollution under Section 110, 76 Fed. Reg. 48,208,

48,210.

Similarly, the Clean Power Plan, which allowed

(but did not mandate) emissions trading as one

strategy for covered sources to achieve greenhouse

gas emission performance standards under Section

111(d), 80 Fed. Reg. 64,662, 64,723-28, was built on

what EPA found was actually being done by states

and sources around the country, as required by

Section 111’s benchmarking task. It was only the

latest in a series of EPA rules adopting or

incorporating “beyond-the-fenceline” strategies such

as emissions trading and generation shifting as

appropriate to achieve the Act’s mandate. See Revesz,

supra, at 23-25.

19

Section 111(d) tasks EPA with developing and

implementing emission reduction standards specific

to various types of existing plants, such as electrical

generating units powered with different energy

sources. EPA must take industry-specific conditions

into account in developing those standards; states, in

turn, must implement strategies to achieve them

using the state implementation plan procedure

Congress borrowed from Section 110. Crucially,

Congress linked the control of non-criteria, nonhazardous pollutants from each class of regulated

pollution source to “standards of performance”

reflecting the “best system of emission reduction” that

is “adequately demonstrated,” accounting for cost,

P.L. 91-604 § 111(a)(1), 42 U.S.C. § 1857c-6. As with

the criteria pollutant provisions, the latitude and

flexibility afforded in Section 111—including Section

111(d)—are commensurate with the scale of the Act’s

public health and welfare mandate.

At the same time, Congress provided clear

guidance to anchor EPA’s standard-setting. The

requirement that any standard reflect an “adequately

demonstrated” degree of emission limitation ensured

that EPA would conduct a fact-driven analysis of

available, viable emission reduction strategies for

each class of pollution sources before issuing any rule

under Section 111, including Section 111(d). While, as

the court below noted, “Congress imposed no limits on

the types of measures the EPA may consider beyond

… cost, any nonair quality health and environmental

impacts, and energy requirements,” American Lung

Ass’n v. EPA, 985 F.3d at 946 (emphasis added), it did

require that EPA base its performance benchmarks

20

for the “best system of emission reduction” on

demonstrated strategies.6

EPA’s authority to determine the appropriate

degree of emission limitation for each source category

is thus grounded in the practical test Congress wrote

into Section 111: EPA must set standards that

“reflect” limitations achievable with the “best system

of emission reduction” that has been “adequately

demonstrated” for that class of sources. These

constraining criteria for EPA’s setting of a categoryspecific emission standard provide a real-world test to

determine an effective, achievable pollution reduction

strategy based on empirical assessment of what is

actually done, and what is capable of being done at

scale, in each regulated industry. As legislators

recognized, the provision authorized EPA to

“determine the achievable limits” based on practices

including “process changes, operation changes, direct

emission control, or other methods.” S. Rept. 91-1196

at 17.

Congress’s practical test constrains EPA’s

determination by requiring the agency to consider

real-world conditions in determining the best “system”

that is “adequately demonstrated” to reduce emissions

when setting standards under Section 111, including

Section 111(d). In doing so, EPA cannot ignore actual

market and technical conditions relevant to reducing

pollution from a particular source category; on the

contrary, EPA must craft its evaluation of the “best

system” with those conditions in mind. In the

6 Congress revised the definition of “standard of performance” to

require consideration of cost “and any nonair quality health and

environmental impact and energy requirements” in post-1970

Amendments. 42 U.S.C. § 111(a)(1).

21

electricity sector in particular, regulators and energy

suppliers interact in complex ways that shape EPA’s

empirical standard-setting inquiry. EPA must

consider flexible regulatory strategies that reflect

sector best practices already demonstrated effective

by industry. The Court has recognized in related

contexts that Congress contemplated pollution control

strategies that harness market mechanisms and build

on business and state regulatory creativity. See, e.g.,

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

489, 519 (2014) (approving EPA’s taking into account

cost effectiveness in regulating interjurisdictional air

pollution); Chevron, U.S.A., Inc. v. NRDC, Inc., 467

U.S. at 865.

Here, if EPA is prevented from considering the

demonstrated, cost-effective best practices of the

electricity sector in making its determination of the

best system to reduce emissions from electrical

generating units, it will be precluded from fulfilling

Congress’s clear Section 111 mandate to consider all

“adequately demonstrated” systems when setting

standards.7

C. Congress appropriately granted EPA

significant rulemaking authority to limit

emissions of dangerous air pollution,

7 Indeed, a general ruling on the level of regulatory flexibility

authorized by Section 111, without a specific “best system of

emission reduction” determination to evaluate, would disrupt

not only the empirical, practical analysis that Congress directed

EPA to undertake but also decades of precedent embracing

flexible, cost-effective regulatory strategies. See, e.g., American

Elec. Power Co. v. Connecticut, 564 U.S. 410, 426 (2011) (noting

that Congress delegated the decision to regulate greenhouse

gases under Section 111 to EPA’s “expert determination”).

22

including where doing so might have a

significant social or economic impact.

Congress fully understood that the 1970

Amendments’ new technology-forcing, flexible

emission reduction mandates could have significant

social and economic impacts, including potentially

serious effects on particular facilities and industries.

Congress expressed this understanding throughout

the text of the Act.

Rather than base ambient air quality standards on

technical feasibility, for example, Congress reflected

the need for stringent standards by directing EPA to

develop ambient air quality standards “requisite to

protect” public health and welfare, P.L. 91-604 §

109(b)(1)-(2), 42 U.S.C. § 1857c-4 (1970), which this

Court has acknowledged is an “absolute” mandate,

Whitman v. American Trucking Ass’ns, 531 U.S. at

465 (internal citations and quotation marks omitted).

In doing so, Congress understood the magnitude of

the task it assigned EPA. It determined that “existing

sources of pollutants either should meet the standard

of the law or be closed down, and … new sources

should be controlled to the maximum extent possible

to prevent atmospheric emissions.” S. Rept. 91-1196

at 3. Congress contemplated that the Clean Air Act’s

social and economic impact could—and likely would—

be significant.

But these health-based ambient air quality

standards would have been mere abstractions

without specific requirements for action to limit

emissions, and moreover, the standards cover only a

subset of pollutants addressed by the Act.

Understanding this, Congress also required EPA to

take actions to implement emission standards for

23

particular pollutants and source categories. The Act

articulates the extent to which EPA may regulate

pollutants and sources; within the overall authority

EPA is granted, EPA has broad latitude to issue rules

to achieve the standards Congress requires the

agency to set. And the Act confers broad authority on

EPA to take actions—even those that might have

profound economic or social impact—in service of

meeting air quality goals. Among the emission

standards Congress tasked EPA with developing was

the set of standards embodied in Section 111 for both

new and existing stationary sources: standards based

on the “best system of emission reduction” that has

been “adequately demonstrated” for specific

pollutants in specific source categories. P.L. 91-604 §

111(a)(1), 42 U.S.C. § 1857c-6 (1970).

Moreover, where Congress intended to limit EPA’s

regulatory flexibility—such as the requirement to

“tak[e] into account the cost of achieving such

reduction” in determining the “best system,” id., or

the requirement to provide an “ample margin of

safety to protect the public health” in the case of

hazardous air pollutant standards, P.L. 91-604 §

112(b)(1)(B), 42 U.S.C. § 1857c-7 (1970)—it did so

explicitly. Where Congress intended for EPA to have

flexibility in identifying regulatory measures to

achieve statutory goals—such as the mandate to

“establish a procedure” for states to develop plans

that set emission standards for any existing source for

“any air pollutant” that is not regulated as a criteria

or hazardous pollutant, P.L. 91-604 § 111(d)(1), 42

U.S.C. § 1857c-6 (1970)—it declined to state

limitations to the contrary. In these and other

instances, the text of the Act invariably supports

24

flexible, and potentially significant, rulemaking

authority on the part of EPA.

The Court has observed that Congress can be

expected to “speak clearly if it wishes to assign to an

agency decisions of vast economic and political

significance.” Utility Air Regulatory Group v. EPA,

573 U.S. 302, 324 (2014) (internal quotation marks

omitted). Congress spoke quite clearly when it

instructed EPA to undertake air pollution control to

protect “public welfare,” 42 U.S.C. § 7401(b)(1),

defined “public welfare” to include “climate,” 42

U.S.C. § 7602(h), directed EPA to craft and enforce

performance standards for non-criteria, nonhazardous air pollutants from existing stationary

sources, 42 U.S.C. §§ 7411(a), (d), and defined “air

pollutant” to include “any air pollution agent or

combination of such agents, including any …

substance or matter which is emitted into or

otherwise enters the ambient air,” 42 U.S.C. §

7602(g). As the Court has noted in the context of

Section 111, “Congress delegated to EPA the decision

whether and how to regulate carbon-dioxide

emissions from powerplants.” American Elec. Power

Co. v. Connecticut, 564 U.S. at 426. And as the Court

has stated upon review of the Act’s regulatory

structure, “there is nothing counterintuitive to the

notion that EPA can curtail the emission of

substances that are putting the global climate out of

kilter.” Massachusetts v. EPA, 549 U.S. at 531. Nor is

there anything counterintuitive or surprising about

the idea that EPA can establish standards that will

require aggressive actions by regulated parties and

states, even if those actions have significant economic

or social consequences and even if they may result in

25

actions not applied “to and at” an individual facility.

Indeed, that is precisely what Congress intended,

where necessary to address air quality.

As the Court has elucidated when assessing the

full scope of a major Congressional initiative, “the

express terms of a statute” take priority over any

“extratextual considerations.” Bostock v. Clayton

County, Georgia, 140 S.Ct. at 1737 (2020). Where the

express terms of the statute considered “in accord

with the ordinary public meaning … at the time of its

enactment”—here,

“air

pollutant,”

“welfare,”

“climate,” and “best system of emission reduction”—

are clear, as they are here, other considerations play

no role in narrowing the scope of application to avoid

“situations not expressly anticipated by Congress.” 8

Id. at 1738, 1749 (internal quotation marks and

citations omitted). Rather, the scope of application

“simply demonstrates [the] breadth of a legislative

command.” Id. at 1749 (internal quotation marks and

citations omitted). Congress designed a statute

capable of comprehensively addressing risks to public

To the extent that post-enactment legislative efforts are

relevant to interpreting the scope of the 1970 Amendments, the

fact that “[i]n the time since, Congress has never amended the

Act to require the EPA to set national carbon dioxide emission

standards for the electric power sector,” Brief of 91 Members of

Congress as Amici Curiae in Support of Petitioners at 19,

considered together with the clear language of Section 111, is

surely straightforward evidence that Congress did authorize

EPA to set such standards in 1970. Subsequent efforts in

Congress to eliminate or restrict EPA’s authority to regulate

greenhouse gas emissions under the Act in general, and Section

111 in particular, similarly demonstrate that such authority

already exists. See, e.g., Electricity Security and Affordability

Act, H.R. 3826, 113th Cong. (2014).

8

26

health and welfare from air pollution, not just in 1970

but for decades to come.9

Thus, Congress contemplated that effective

regulation of any air pollutants, including greenhouse

gases, may require some industry-altering actions to

protect public health and welfare. Courts have

consistently recognized this, upholding EPA’s

authority to implement the Act under conditions

where impacts on industry were known to be

significant. See, e.g., Whitman v. American Trucking

Ass’ns, 531 U.S. at 466 (acknowledging that “the

economic cost of implementing a very stringent

standard might produce health losses sufficient to

offset the health gains achieved in cleaning the air”);

Union Elec. Co. v. EPA, 427 U.S. at 269 (“Technology

forcing is a concept somewhat new to our national

experience and it necessarily entails certain risks.

But Congress considered those risks in passing the

1970 Amendments and decided that the dangers

posed by uncontrolled air pollution made them worth

taking”).

This is especially true of Section 111. Courts have

long acknowledged that the “best system of emission

reduction” standard has the potential to lead to

significant industry impacts. See Sierra Club v. Costle

657 F.2d 298, 314 (D.C. Cir. 1981) (noting, regarding

a Section 111 standard that would reduce coal-fired

power plant emissions by 90 percent, that the “cost of

9 As one Senator stated, “While the bill is far reaching, and sets

a high challenge, we believe it necessary for life and health, and

responsive to our duty in husbandry to future generations.” 1

Envtl. Policy Div., Library of Congress, A Legislative History of

the Clean Air Act Amendments of 1970 at 259 (Sep. 21, 1970)

(Statement of Sen. Cooper).

27

the new controls … is substantial,” that “utilities will

have to spend tens of billions of dollars … on pollution

control,” and that “[c]onsumers will ultimately bear

these costs, both directly in the form of residential

utility bills, and indirectly in the form of higher

consumer prices due to increased energy costs”).

This design makes clear that while the Act affords

EPA broad authority in a reticulated statute that

addresses a broad problem, it is unquestionable that

“Congress, and not the Executive Branch, [made] the

policy judgments” regarding protection of public

health and welfare, control of air pollution, and the

scope and structure of regulatory authority to achieve

those goals. Gundy v. United States, 139 S.Ct. 2116,

2141 (Gorsuch, J., dissenting). Although Congress

has left many important implementation judgments

to EPA, it nonetheless decided all the relevant “major

policy questions.” Congress deliberately directed EPA

to implement the Act with the authority and

flexibility necessary to achieve its explicit goal “to

protect and enhance the quality of the Nation’s air

resources so as to promote the public health and

welfare and the productive capacity of its population.”

42 U.S.C. § 7401(b)(1).10 This is no less true of Section

111(d) than of any other section of the Act.

Moreover, the standards Congress crafted to direct EPA’s

achievement of this goal—including definitions of “air pollutant”

and “public welfare,” 42 U.S.C. §§ 7602(g)-(h), and a mandate to

determine and require implementation of the “best system of

emission reduction” for non-criteria, non-hazardous air

pollutants from existing sources, 42 U.S.C. §§ 7411(a), (d)—

clearly provide “an intelligible principle to guide the delegee’s

use of discretion,” Gundy v. United States, 139 S.Ct. at 2123, that

fits squarely within the Court’s precedent, see id. at 2129.

10

28

The Court has acknowledged that “major”

legislation “written in starkly broad terms” can often

produce “unexpected applications” over time. Bostock

v. Clayton County, Georgia, 140 S.Ct. at 1753. The

potential industry and economic effects of regulating

air pollutants were manifestly not “unexpected” to the

Congress that wrote the Act, even where the

regulation addresses pollution with public welfare

effects such as climate change—and Congress’s

groundbreaking action in 1970 clearly created the

tools to address it.

29

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

SEAN B. HECHT

Counsel of Record

UCLA School of Law

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 794-5272

hecht@law.ucla.edu

THEODORE E. LAMM

UC Berkeley School of Law

215 Bancroft Way

Berkeley, CA 94720

(510) 642-6774

tlamm@law.berkeley.edu