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

Supreme Court briefJan 24, 2022

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No. 20-1530

IN THE

Supreme Court of the United States

____________________

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

U.S. 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 U.S. Senators Sheldon Whitehouse,

Richard Blumenthal, Bernie Sanders, and

Elizabeth Warren as Amici Curiae in Support of

Respondents

____________________

Erwin Chemerinsky

University of California, Berkeley

School of Law

Law Building 215

Berkeley, California 94720

(510) 642-6483

echemerinsky@law.berkeley.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

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

SUMMARY OF ARGUMENT ................................... 1

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

I. The Court Should Apply Its LongStanding,

Neutral

Justiciability

Principles and Dismiss These Cases................ 2

A. The judiciary was intended to settle

legal questions in existing cases or

controversies. .............................................. 2

B. There is no real case or controversy

here,

only

hypothetical

disagreement. .............................................. 6

II. The Court Should Reject Petitioners’

Efforts to Enlist It in Their IndustryDriven Deregulatory Agenda. .......................... 8

A. Polluting interests seek to gut EPA

using

previously

rejected

legal

theories. ....................................................... 8

B. These efforts are the product of a

decades-long, industry-funded project

dismantle

the

so-called

“administrative state.” .............................. 11

C. Regulated industries brought these

cases because they believe the Court

will

fulfill

their

decades-long

deregulatory goals..................................... 18

III. Limiting Congress’s Ability to Delegate

Would

Undermine

the

Federal

Government’s Ability to Function. ................. 20

A. There is no legitimate basis for

eviscerating Congress’s authority to

delegate. .................................................... 20

B. Delegation is essential for Congress to

accomplish

its

lawmaking

responsibility,

particularly

with

respect to environmental protection

statutes. ..................................................... 22

CONCLUSION ........................................................ 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935).................................... 9

Citizens United v. FEC, 558 U.S. 310

(2010) .................................................................... 26

DaimlerChrysler Corp. v. Cuno, 547 U.S.

332 (2006) ............................................................... 4

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

(2019) ........................................................ 20, 28, 29

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) .............................................. 10

Massachusetts v. EPA, 549 U.S. 497

(2007) .................................................................... 10

Mistretta v. United States, 488 U.S. 361

(1989) .............................................................. 11, 12

Panama Refining Co. v. Ryan, 293 U.S.

388 (1935) ............................................................... 9

Seila Law LLC v. Consumer Financial

Protection Bureau, 140 S. Ct. 2183

(2020) .................................................................... 21

U.S. Telecom Ass’n v. FCC, 855 F.3d 381

(D.C. Cir. 2017) (en banc) .................................... 28

United States v. Muskrat, 219 U.S. 346

(1911) ...................................................................... 3

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

457 (2001) ................................................... 9, 10, 11

Statutes

42 U.S.C. § 7411....................................................... 23

Congressional Review Act, 5 U.S.C. § 801 .............. 20

Other Authorities

2 A LEG. HIST. OF THE CLEAN AIR

AMENDMENTS OF 1970 (1970) ............................... 23

4 Papers of John Marshall (C. Cullen ed.,

1984) ....................................................................... 4

Alan Zibel, Big Oil's Capitol Hill Allies,

PUB. CITIZEN (Feb. 10, 2021) ................................ 16

Alexander Hertel-Fernandez, Caroline

Tervo, & Theda Skocpol, How the Koch

brothers built the most powerful

rightwing group you’ve never heard of,

THE GUARDIAN (Sept. 26, 2018) ........................... 13

AMANDA HOLLIS-BRUSKY, IDEAS WITH

CONSEQUENCES: THE FEDERALIST

SOCIETY AND THE CONSERVATIVE

COUNTERREVOLUTION (2014) ................................ 13

Americans for Prosperity, DESMOG,

https://www.desmog.com/americans-forprosperity/ ............................................................ 19

Amicus Curiae Br. of Am. Crop Protection

et al. in Supp. of Resp’ts, Whitman, 531

U.S. 457 (No. 99-1257) ......................................... 10

Amicus Curiae Br. of New Civil Liberties

Alliance in Supp. of Pet’rs...................................... 9

Andy Kroll, Exposed: The Dark-Money

ATM of the Conservative Movement,

MOTHER JONES (Feb. 5, 2013) .............................. 13

Anna Massoglia, ‘Dark money’ in politics

skyrocketed in the wake of Citizens

United, OPENSECRETS (Jan. 27, 2020) ................ 26

BENJAMIN N. CARDOZO, THE NATURE OF

THE JUDICIAL PROCESS (1921) ................................ 4

Br. Amicus Curiae of Lincoln Inst. for

Rsch. and Educ. et al. in Supp. of

Resp’ts, Whitman, 531 U.S. 457 (No. 991257) ..................................................................... 11

Br. for Federal Resp’ts in Opp’n ................................ 7

Br. for Pet’rs West Virginia et al............................... 9

Br. for Power Company Resp’ts .............................. 18

Br. for Resp’ts Appalachian Power Co., et

al., in Supp. of Pet’rs, Whitman, 531

U.S. 457 (No. 99-1257) ......................................... 10

Br. of 91 Members of Congress as Amici

Curiae in Supp. of Pet’rs ...................................... 24

Br. of America First Policy Inst. as Amicus

Curiae in Supp. of Pet’rs ........................................ 9

Br. of Amici Curiae Doctors for Disaster

Preparedness and Eagle Forum Educ. &

Legal Defense Fund in Supp. of Pet’rs .................. 9

Br. of Amici Curiae Inst. for Justice and

Cato Inst. in Supp. of Resp’ts, Whitman,

531 U.S. 457 (No. 99-1257) .................................. 10

Br. of Amicus Curiae Americans for

Prosperity Found. in Supp. of Pet’rs ..................... 9

Br. of Amicus Curiae Claremont Inst.’s

Ctr. for Const. Juris. in Supp. of Pet’rs ................. 9

Br. of Amicus Curiae General Electric Co.

in Supp. of Resp’ts, Whitman, 531 U.S.

457 (No. 99-1257) ................................................. 10

Br. of Amicus Curiae Mercatus Ctr. in

Supp. of Resp’t, Whitman, 531 U.S. 457

(No. 99-1257) ........................................................ 11

Br. of Cato Inst. and Mountain States

Legal Found. as Amici Curiae in Supp.

of Pet’rs ................................................................... 9

Br. of Pet’r Westmoreland Mining

Holdings LLC ......................................................... 9

Br. of Resp’t North Am. Coal Corp. in

Supp. Of Pet’rs ....................................................... 9

Br. of Resp’ts Am. Trucking Ass’ns., Inc.,

Chamber of Com. of the United States,

et al., Whitman v. Am. Trucking

Assocs., 531 U.S. 457 (2001) (No. 991257) ..................................................................... 10

Br. of Sens. Sheldon Whitehouse, Jeff

Merkley, Richard Blumenthal, Cory

Booker, and Alex Padilla, in Supp. of

Resp’ts, Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) (No. 20-107) ....................... 6

Cass Sunstein, Nondelegation Canons, 67

U. CHI. L. REV. 315 (2000) ...................................... 9

CATO INST., “The Delegation of Legislative

Powers” in Cato Handbook for Congress

99-101 (2003) ........................................................ 14

Cato Institute, DESMOG,

https://www.desmog.com/cato-institute .............. 19

vii

Competitive Enterprise Institute,

DESMOG,

https://www.desmog.com/competitiveenterprise-institute/ ............................................. 19

Coral Davenport, Why Republicans Keep

Telling Everyone They’re Not Scientists,

N.Y. TIMES (Oct. 30, 2014) ................................... 27

Danielle Ivory & Robert Faturechi, The

Deep Industry Ties of Trump’s

Deregulation Teams, N.Y. TIMES (July

11, 2017) ............................................................... 16

David Roberts, The arguments that

convinced a libertarian to support

aggressive action on climate, VOX (May

12, 2015),

https://www.vox.com/2015/5/12/8588273/

the-arguments-that-convinced-thislibertarian-to-support-a-carbon-tax .................... 14

Doctors for Disaster Preparedness, Ozone

hole, Global warming, and other

Environmental Scares,

http://ddponline.org/envir.htm ............................ 19

Eli Watkins, Top WH lawyer details

Trump admin’s ‘larger plan’ to shrink

regulatory state, POLITICO (Feb. 22,

2018) ..................................................................... 16

Eric Holthaus, Researchers: Exxon, Koch

Family Have Powered the Climate

Denial Machine for Decades, SLATE

(Dec. 1, 2015) ........................................................ 27

Eric Lipton, Working So Closely Their

Roles Blur, N.Y. TIMES (Dec. 7, 2014) ................... 5

viii

Frank Newport, Americans Want

Government to Do More on

Environment, GALLUP NEWS (Mar. 29,

2018) ..................................................................... 27

GLOBAL STATUS OF CCS 2021, GLOBAL CCS

INST.,

https://www.globalccsinstitute.com/wpcontent/uploads/2021/11/Global-Statusof-CCS-2021-Global-CCS-Institute1121.pdf ................................................................ 25

Ian Parry, et al., Still Not Getting Energy

Prices Right: A Global and Country

Update of Fossil Fuel Subsidies, IMF

working papers (Sept. 24, 2021),

https://www.imf.org/en/Publications/WP/

Issues/2021/09/23/Still-Not-GettingEnergy-Prices-Right-A-Global-andCountry-Update-of-Fossil-FuelSubsidies-466004 ................................................... 8

Ilan Wurman, Nondelegation at the

Founding, 111 YALE L.J. 1490 (2021) .................. 21

IRA KATZNELSON, FEAR ITSELF: THE NEW

DEAL AND THE ORIGINS OF OUR TIME

(2013) .................................................................... 11

J. Harvie Wilkinson III, Assessing the

Administrative State, 32 J.L. & POL. 239

(2017) .................................................................... 25

Jane Mayer, Koch Pledge Tied to

Congressional Climate Inaction, NEW

YORKER (June 30, 2013) ....................................... 27

Jason Zengerle, How the Trump

Administration is Remaking the Courts,

N.Y. TIMES (Aug. 22, 2018) .................................. 17

Jeffrey Toobin, Republicans United on

Climate Change, NEW YORKER (June 9,

2014) ..................................................................... 27

Jeremy W. Peters, Stephen Bannon

Reassures Conservatives Uneasy About

Trump, N.Y. TIMES (Feb. 23, 2017) ..................... 16

Jerry Taylor, The Role of Congress in

Monitoring Administrative Rulemaking,

CATO INST. (Sept. 12, 1996) .................................. 14

John G. Roberts, Jr., Article III Limits on

Statutory Standing, 42 DUKE L.J. 1219

(1993) ...................................................................... 7

Julian Davis Mortenson & Nicholas

Bagley, Delegation at the Founding, 121

COLUM. L. REV. 277 (2021) ............................. 21, 22

Luke Hartig, Trump’s Four-Pronged War

on the Administrative State, JUST

SECURITY (Feb. 7, 2018) ....................................... 16

MAEVE P. CAREY, CONG. RESEARCH. SERV.,

R43056, COUNTING REGULATIONS: AN

OVERVIEW OF RULEMAKING, TYPES OF

FEDERAL REGULATIONS, AND PAGES IN

THE FEDERAL REGISTER (2019) ............................. 26

Mariano-Florentino Cuéllar, Foreword,

Administrative War, 82 GEO. WASH. L.

REV. 1343 (2014) .................................................. 12

Mark Fenster, The Birth of a “Logical

System”: Thurman Arnold and the

Making of Modern Administrative Law,

84 OR. L. REV. 69 (2005) ....................................... 11

Mark Joseph Stern, What the Koch

Brothers’ Money Buys, SLATE (May 2,

2018) ..................................................................... 13

Matea Gold, Charles Koch Downgrades

His Political Network’s Projected 2016

Spending from $889 million to $750

million, WASH. POST (Oct. 21, 2015) .................... 27

Matt Egan, Exxon denies Trump called

CEO for money. But Big Oil is donating

way more to Trump than Biden, CNN

(Oct. 21, 2020) ...................................................... 17

Matthew H. Goldberg et al., Oil and Gas

Companies Invest in Legislators that

Vote Against the Environment, 117

PROCEEDINGS OF THE NAT'L ACAD. OF

SCIENCES 5111 (2020) .......................................... 16

Michele Augusto Riva et al., Lead

Poisoning: Historical Aspects of a

Paradigmatic “Occupational and

Environmental Disease”, 3 SAFE HEALTH

WORK 11 (2012) .................................................... 25

Mot. for Leave to File Br. Amicus Curiae

and Br. of Amicus Curiae Pacific Legal

Found. and Cal. Chamber of Com. in

Supp. of Resp’ts Am. Trucking Assocs.,

Inc., et al., Whitman, 531 U.S. 457 (No.

99-1257) ................................................................ 11

NANCY MACLEAN, DEMOCRACY IN CHAINS

(2017) ...................................................................... 5

Nicholas Parrillo, A Critical Assessment of

the Originalist Case Against

Administrative Regulatory Power: New

Evidence from the Federal Tax on

Private Real Estate in the 1790s, 130

YALE L.J. 1288 (2021) .......................................... 22

Peter Stone, Big oil remembers ‘friend’

Trump with millions in campaign funds,

THE GUARDIAN (Aug. 9, 2020) .............................. 17

PREVENTING REGULATORY CAPTURE:

SPECIAL INTEREST INFLUENCE AND HOW

TO LIMIT IT (Daniel Carpenter & David

A. Moss eds., 2013) ............................................... 28

Puneet Kollipara & David Malakoff: For

the First Time in Years, the U.S. Senate

Voted on Climate Change. Did Anybody

Win?, SCI. MAG. (Jan. 29, 2015) ........................... 27

R. ERIC PETERSEN, CONG. RESEARCH.

SERV., R43946, SENATE STAFF LEVELS IN

MEMBER, COMMITTEE, LEADERSHIP, AND

OTHER OFFICES, 1977-2020 (2020) ....................... 26

R. ERIC PETERSEN, CONG. RESEARCH.

SERV., R43947, HOUSE OF

REPRESENTATIVES STAFF LEVELS IN

MEMBER, COMMITTEE, LEADERSHIP, AND

OTHER OFFICES, 1977-2021 (2021) ....................... 26

Robert A. Anthony, Unlegislated

Compulsion: How Federal Agency

Guidelines Threaten Your Liberty, CATO

INST. (Aug. 11, 1998) ............................................ 14

Robert Barnes & Steven Mufson, White

House Counts on Kavanaugh in Battle

xii

Against ‘Administrative State’, WASH.

POST (Aug. 12, 2018) ............................................ 17

Robert Brulle, “Institutionalizing delay:

foundation funding and the creation of

U.S. climate change counter-movement

organizations,” CLIMATIC CHANGE (Dec.

2013), https://www.cssn.org/wpcontent/uploads/2020/12/Institutionalizi

ngDelay-ClimaticChange.pdf .............................. 15

Robert L. Rabin, Federal Regulation in

Historical Perspective, 38 STAN. L. REV.

1189 (1986) ........................................................... 11

SHAWN OTTO, THE WAR ON SCIENCE (2016) ........... 15

Sheldon Whitehouse, A Flood of Judicial

Lobbying: Amicus Influence and

Funding Transparency, 131 YALE L.J.F.

141 (2021) ............................................................... 5

SHELDON WHITEHOUSE, CAPTURED (2017) ........ 14, 27

Statistics for the New Chemicals Review

Program under TSCA, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://www.epa.gov/reviewing-newchemicals-under-toxic-substancescontrol-act-tsca/statistics-newchemicals-review#noc .......................................... 24

Stephen M. Johnson, Indeconstructible:

The Triumph of the Environmental

“Administrative State”, 86 U. CIN. L.

REV. 653 (2018) .................................................... 12

Suzanne Goldenberg & Helena Bengtsson,

Oil and gas industry has pumped

xiii

millions into Republican campaigns,

THE GUARDIAN (Mar. 3, 2016) .............................. 16

THE FEDERALIST NO. 78 (Alexander

Hamilton) (C. Rossiter ed., 2003) .......................... 3

The Need for a Tighter Particulate AirQuality Standard, 383 N. ENG. J. MED.

680 (2020) ............................................................. 25

Timothy L. Foden, The Battle for Public

Interest Law: Exploring the Orwellian

Nature of the Freedom Based Public

Interest Movement, 4 CONN. PUB. INT.

L.J. 184 (2005) ........................................................ 5

Transcript of Oral Argument, Dobbs v.

Jackson Women’s Health, No. 19-1392

(Dec. 1, 2021) ........................................................ 20

U.N. Intergovernmental Panel on Climate

Change, Global Warming of 1.5°C (2019) ........... 25

U.S. Environmental Protection Agency,

EPA’s Budget and Spending,

https://www.epa.gov/planandbudget/bud

get ......................................................................... 25

What’s Wrong with the Supreme Court:

The Big-Money Assault on Our

Judiciary: Hearing Before the S. Comm.

on the Judiciary, 117th Cong. 6 (2021) ............... 17

STATEMENT OF INTEREST1

Amici curiae are U.S. Senators Sheldon

Whitehouse of Rhode Island, Richard Blumenthal of

Connecticut, Bernie Sanders of Vermont, and

Elizabeth Warren of Massachusetts. Amici share

with the Court a strong interest in preserving the

separation of powers and preventing corrupting

influences from undermining our democracy.

SUMMARY OF ARGUMENT

American success in the 20th and 21st

centuries owes much to the administrative agencies

that enabled and facilitated these accomplishments.

Metrics that boomed in the 20th century, from

average lifespan to economic productivity, were made

possible by a slew of new regulations aimed at

protecting the public welfare. As the excesses of

powerful industries were reined in, however, these

same regulations fostered resentment among those

seeking to operate without such restraint.

These cases are the direct product of that

resentment. Almost everything about these cases—

the theories, the arguments, and even many of the

parties and amici curiae—is an industrial product

manufactured in an effort to return to an era free

from oversight by the government. The theories and

arguments were incubated, grown, propagated, and

1 The parties have consented to the filing of this brief.

Pursuant

to Rule 37.6, no counsel for any party authored this brief in any

part, and no person or entity other than amici or amici’s counsel

made a monetary contribution to fund its preparation or

submission. The parties have filed blanket consents to the filing

of amicus curiae briefs.

distributed by a well-funded apparatus that has

selfish and destructive goals.

These industry

interests hope to cripple the federal government’s

ability to regulate them by fostering hostility toward

what they pejoratively call the “administrative

state.” Their efforts, carried out by their front

groups, proliferate through the political process,

through faux intellectual ideas and grassroots

campaigns, strategic appointments and policy

proposals in the executive branch, and massive

campaign contributions to those running for

Congress.

Most important here, there is no extant

regulation to challenge, so there is no case or

controversy. The Court should work to restore the

public’s faith by rejecting this blatant, political policy

agenda, and dismiss these cases.

ARGUMENT

The Court Should Apply Its Long-Standing,

Neutral Justiciability Principles and Dismiss

These Cases.

A. The judiciary was intended to settle legal

questions in existing cases or controversies.

These cases present a legal oddity: petitioners

are challenging a regulation that does not exist. The

Court should apply its longstanding justiciability

principles and dismiss the cases.

The judiciary was not intended to settle future,

potential, or hypothetical disagreements. Rather,

the Framers designed Article III courts to adjudicate

actual cases and controversies brought by plaintiffs

who suffer a real-world harm.2 The Constitution

circumscribes the federal judiciary’s power in this

way to prevent courts from issuing advisory opinions

and becoming, as anti-Federalists feared, an allpowerful, unanswerable body. Hamilton and the

Federalists relied on the requirement for “Cases” and

“Controversies” to argue that the federal judiciary

could adjudicate only real disputes that arose

properly through litigation. As Hamilton explained,

this limitation would ensure that the “general liberty

of the People can never be endangered” by an

ambitious judiciary.3 In a speech before the House of

Representatives, Chief Justice John Marshall

similarly recognized these limitations on the federal

judiciary:

If the judicial power extended to every

question under the constitution it would

involve almost every subject proper for

legislative discussion and decision; if to

every question under the laws and

treaties of the United States it would

involve almost every subject on which

the executive could act. The division of

power [among the branches of

government] could exist no longer, and

See, e.g., United States v. Muskrat, 219 U.S. 346, 356 (1911)

(“[B]y the express terms of the Constitution, the exercise of the

judicial power is limited to ‘cases' and ‘controversies.’ Beyond

this it does not extend, and unless it is asserted in a case or

controversy within the meaning of the Constitution, the power

to exercise it is nowhere conferred.”).

3 THE FEDERALIST NO. 78, at 464 (Alexander Hamilton) (C.

Rossiter ed., 2003).

the other departments would

swallowed up by the judiciary.4

These justiciability principles have continued

to guide the judiciary into the modern era. Judge

Cardozo observed that a judge “is not a knighterrant, roaming at will in pursuit of his own ideal of

beauty or of goodness.”5 At the beginning of his

tenure, the Chief Justice distilled Cardozo’s poetic

notion into a simple axiom: “If a dispute is not a

proper case or controversy, the courts have no

business deciding it, or expounding the law in the

course of doing so.”6

This is no small matter. It is at the heart of

our separation of powers.

Justiciability

doctrines

are

especially

important now because of the rise of industrymanufactured litigation—cases fabricated to bring

issues before the Court to achieve policy victories

unattainable through the legislative process because

they are unpopular and unwanted. Industry groups,

particularly the fossil fuel industry, rely on such

litigation to advance their aims.

Instead of

promoting their arguments directly—which would

expose them to accusations of callous self-interest—

industry actors fund innocuously-named front groups

to do their work for them. Swarms of “freedom-based

public interest law” organizations now exist only to

see also

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).

4 4 Papers of John Marshall 95 (C. Cullen ed., 1984);

5 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL

PROCESS 141 (1921).

DaimlerChrysler Corp., 547 U.S. at 341.

change public policy through the courts.7 There has

also emerged “a ‘secretive alliance’ between red-state

attorneys general and fossil fuel corporations to

litigate in federal courts with ‘unprecedented’

coordination to obstruct environmental and other

regulatory efforts.”8

Secrecy is their watchword.

These

organizations seldom, if ever, disclose their funders,

making it difficult for courts and other parties to

know the real interests behind the litigation. They

are then accompanied by flotillas of professional

amici curiae, whose common funding sources and ties

to the party-in-interest are obscured by ineffective

disclosure rules.9

Industry-manufactured litigation frequently

involves strange legal posturing. Plaintiffs even rush

to lose cases in the lower courts “as quickly as

practicable and without argument, so that [they] can

expeditiously take their claims to the Supreme

Court.”10

See Timothy L. Foden, The Battle for Public Interest Law:

Exploring the Orwellian Nature of the Freedom Based Public

Interest Movement, 4 CONN. PUB. INT. L.J. 184 (2005).

8 NANCY MACLEAN, DEMOCRACY IN CHAINS (2017) (citing Eric

Lipton, Working So Closely Their Roles Blur, N.Y. TIMES (Dec.

7, 2014)).

See generally Sheldon Whitehouse, A Flood of Judicial

Lobbying: Amicus Influence and Funding Transparency, 131

YALE L.J.F. 141 (2021).

Friedrichs v. California Teachers

Ass’n, No. 13-57095, 2014 U.S. App. LEXIS 24935 (9th Cir.

10 Br. of Appellants at 4,

Nov. 18, 2014) (“It is . . . Appellants’ intention to pursue their

claims before the Supreme Court. Because this Court’s

authority to grant that relief is foreclosed by binding

The coordinated campaign of industrymanufactured litigation is engineered to get around

standing, case or controversy, and other separationof-powers guardrails provided by Article III

justiciability doctrines. When courts stray from

these doctrines, they make it easy for large, powerful,

anonymous forces to accomplish their goal. Through

careful review of cases to ensure that there are actual

justiciable disputes present, the judiciary can rebuff

attempts by political actors seeking to accomplish a

public policy agenda they cannot achieve through

democratic means.

B. There is no real case or controversy here,

only a hypothetical disagreement.

Petitioners ask the Court to decide whether

the approach the Environmental Protection Agency

(EPA) adopted two administrations ago in the Clean

Power Plan (CPP) was impermissible under Section

111(d) of the Clean Air Act. This regulation was

rescinded over two years ago, and EPA does not

intend to revive it. As respondents note, even though

the court of appeals vacated the rescission of the

precedent, Appellants respectfully request that the Court

affirm the district court’s entry of judgment on the pleadings

in favor of Appellees (public-teachers unions and public-school

superintendents) as quickly as practicable and without

argument, so that Appellants can expeditiously take their

claims to the Supreme Court.”); Br. of Sens. Sheldon

Whitehouse, Jeff Merkley, Richard Blumenthal, Cory Booker,

and Alex Padilla, in Supp. of Resp’ts at 3-12, Cedar Point

Nursery v. Hassid, 141 S. Ct. 2063 (2021) (No. 20-107)

(describing similar tactics by the plaintiffs in Cedar Point

Nursery v. Hassid).

CPP, it granted EPA’s unopposed motion to stay that

vacatur. This means that there is no risk that the

CPP will take effect while EPA develops a new

regulation.11

In the current posture, the Obama

Administration’s CPP is not law, the Trump

Administration’s Affordable Clean Energy (ACE)

rule that replaced it is not law, and the Biden

Administration has not promulgated any rule on the

subject. While EPA has indicated that it intends to

develop a new regulation for carbon emissions from

existing coal-fired power plants, there is no basis for

judicial surmise that any such rule will mirror the

CPP or the ACE rules, or that it will even rely on

Section 111(d). At this time, EPA is not regulating

CO2 from existing coal-fired power plants at all. The

Court does not have the authority to review future,

potential, or hypothetical administrative regulations.

The

Constitution,

through

well-established

justiciability doctrines, protects against courts

engaging in precisely this type of free-range

policymaking knight-errantry.12 Without an extant

regulation to review, any decision here would be a

judicial usurpation of power contrary to the

Constitution.

11 Br. for Federal Resp’ts in Opp’n 15.

See generally John G. Roberts, Jr., Article III Limits on

Statutory Standing, 42 DUKE L.J. 1219 (1993).

II.

The Court Should Reject Petitioners’ Efforts to

Enlist It in Their Industry-Driven Deregulatory

Agenda.

A. Polluting interests seek to gut EPA

using

previously

rejected

legal

theories.

These cases are the product of an industry-led

agenda. We Senators see this constantly. Regulated

industries, the heavily-polluting fossil fuel industry

first among them, have spent decades developing,

funding, and executing a campaign to restrict or even

eliminate the federal government’s regulatory

authority. They have an obvious motive.13

As Senators, we not only witness this industry

behavior, but we also engage constantly with real

constituents, from whom we hear little if no

complaint about the so-called “administrative state.”

The complaint we most often hear is that an agency

has failed to regulate forcefully enough, with

13 The International Monetary Fund estimates that total fossil

fuel subsidies in the United States, including both direct and

indirect (i.e., the unpriced negative externalities associated

with fossil fuel production and combustion), total $660 billion.

Ian Parry, et al., Still Not Getting Energy Prices Right: A

Global and Country Update of Fossil Fuel Subsidies, IMF

working papers (Sept. 24, 2021),

https://www.imf.org/en/Publications/WP/Issues/2021/09/23/Still

-Not-Getting-Energy-Prices-Right-A-Global-and-CountryUpdate-of-Fossil-Fuel-Subsidies-466004. Opposing

government action to reduce or eliminate such subsidies is

therefore worth up to $660 billion annually to the fossil fuel

industry. That is quite a motive.

resulting harm to the constituent. Often, that failure

is the result of industry influence at the agency.

Petitioners and their industry-allied front

group amici invite the Court to curtail EPA’s

authority by arguing that Congress cannot delegate

meaningful regulatory power to administrative

agencies.14 They revive, and seek to weaponize, the

long-dormant non-delegation doctrine and other antiregulatory theories to further their crusade against

government regulation.15 They would take a doctrine

See Br. for Pet’rs West Virginia et al. 14-30; Br. of Pet’r

Westmoreland Mining Holdings LLC; Br. of Resp’t North Am.

Coal Corp. in Supp. Of Pet’rs 16-32; Amicus Curiae Br. of New

Civil Liberties Alliance in Supp. of Pet’rs 10-32; Br. of Amici

Curiae Doctors for Disaster Preparedness and Eagle Forum

Educ. & Legal Defense Fund in Supp. of Pet’rs 17-19; Br. of

Amicus Curiae Buckeye Inst. in Supp. of Pet’rs 4-7; Br. of

America First Policy Inst. as Amicus Curiae in Supp. of Pet’rs

8-25; Br. of Amicus Curiae Claremont Inst.’s Ctr. for Const.

Juris. in Supp. of Pet’rs 2-12; Br. of Amicus Curiae Americans

for Prosperity Found. in Supp. of Pet’rs 12-29; Br. of Cato Inst.

and Mountain States Legal Found. as Amici Curiae in Supp. of

Pet’rs 4-7.

15 These arguments peaked in 1935 with the Court’s decisions

in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495

(1935). In the decades since then, however, the Court has

declined to endorse such staunch anti-delegation arguments.

See Cass Sunstein, Nondelegation Canons, 67 U. CHI. L. REV.

315, 322 (2000); Whitman v. Am. Trucking Ass’ns., 531 U.S.

457, 474 (2001) (“In the history of the Court, we have found

the requisite ‘intelligible principle’ lacking in only two

statutes, one of which provided literally no guidance for the

exercise of discretion, and the other of which conferred

authority to regulate the entire economy on the basis of no

more precise a standard than stimulating the economy by

assuring ‘fair competition.’”).

designed to address the rare circumstances in which

Congress has provided no “intelligible principle” for

the agency to follow,16 “literally no guidance in the

exercise of discretion,”17 and deploy it to bring down

what they pejoratively refer to as “the administrative

state.”

This would be a needless, activist,

unprecedented gambit for the Court, particularly

insofar as it targets the Clean Air Act. Congress has

given abundant attention to this Act in major

reauthorizations in 1970, 1977, and 1990; and the

Court upheld the Act’s application to greenhouse gas

emissions from the combustion of fossil fuel in 2007.18

The constitutionality of this delegation is

actually settled. In Whitman v. American Trucking

Associations, a bevy of fossil fuel companies, chemical

manufacturers, industry-funded front groups, and

other organizations with fossil fuel ties challenged

Congress’s authority to delegate the power to set air

quality standards.19 The Court unanimously rejected

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394

(1928).

Whitman , 531 U.S. at 474 .

Massachusetts v. EPA, 549 U.S. 497, 528-532 (2007).

19 For arguments made by these groups, see Br. of Resp’ts Am.

Trucking Ass’ns., Inc., Chamber of Com. of the United States, et

al., Whitman v. Am. Trucking Assocs., 531 U.S. 457 (2001) (No.

99-1257); Br. for Resp’ts Appalachian Power Co., et al., in Supp.

of Pet’rs, Whitman, 531 U.S. 457 (No. 99-1257); Amicus Curiae

Br. of Am. Crop Protection et al. in Supp. of Resp’ts, Whitman,

531 U.S. 457 (No. 99-1257); Br. of Amicus Curiae General

Electric Co. in Supp. of Resp’ts, Whitman, 531 U.S. 457 (No. 991257); Br. of Amici Curiae Inst. for Justice and Cato Inst. in

Supp. of Resp’ts, Whitman, 531 U.S. 457 (No. 99-1257); Br. of

the industries’ invitation to participate in their

political agenda. Justice Scalia reiterated that the

Court has “almost never felt qualified to second-guess

Congress regarding the permissible degree of policy

judgment that can be left to those executing or

applying the law.”20

B. These efforts are the product of a decadeslong, industry-funded project to dismantle

the so-called “administrative state.”

As the challenges of the twentieth century

unfolded—from a persistent, worldwide economic

depression to unprecedented global warfare to

rapidly developing and complex environmental and

public health dangers born of ever greater

industrialization—the responsibilities of lawmaking

required modernization. Congress responded by

creating administrative agencies with both the time

and expertise to meet these demands.21 The Court,

Amicus Curiae Mercatus Ctr. in Supp. of Resp’t, Whitman, 531

U.S. 457 (No. 99-1257); Mot. for Leave to File Br. Amicus Curiae

and Br. of Amicus Curiae Pacific Legal Found. and Cal.

Chamber of Com. in Supp. of Resp’ts Am. Trucking Ass’ns., Inc.,

et al., Whitman, 531 U.S. 457 (No. 99-1257); Br. Amicus Curiae

of Lincoln Inst. for Rsch. and Educ. et al. in Supp. of Resp’ts,

Whitman, 531 U.S. 457 (No. 99-1257).

Whitman, 531 U.S. at 474-75 (citing Mistretta v. United

States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).

21 See generally IRA KATZNELSON, FEAR ITSELF: THE NEW DEAL

AND THE ORIGINS OF OUR TIME (2013); Robert L. Rabin, Federal

Regulation in Historical Perspective, 38 STAN. L. REV. 1189

(1986); Mark Fenster, The Birth of a “Logical System”:

Thurman Arnold and the Making of Modern Administrative

Law, 84 OR. L. REV. 69 (2005); Mariano-Florentino Cuéllar,

in turn, acknowledged that “in our increasingly

complex society, replete with ever changing and more

technical problems, Congress simply cannot do its job

absent an ability to delegate power under broad

general directives.”22

The result has been an astonishing success.

Over the past fifty years, Congress charged

regulatory agencies—operating under congressional

supervision and executive-appointed leadership—

with protecting the public interest in countless ways,

such as ensuring the safety of the water we drink, the

air we breathe, the cars we drive, the medications we

take, and the markets we invest in for our retirement

and our children’s future. Medicines are not snakeoil mysteries any longer. People are rarely burned or

killed in boiler explosions. Automobiles have airbags.

Smokestacks mostly have pollution controls. Stock

jobbers have a harder time suckering innocent

investors. Most insurance policies actually pay when

the insured risk occurs. We take for granted the

safety and reliability that a regulated world has

built. Thus protected, we may overlook the simple

reality that industries motivated by maximizing

their profits often cause social harm. That is why

regulation is often imperative.

Regulation

helps

channel

America’s

competitive enterprise into good and helpful

innovations instead of into new tricks and traps for

consumers, or new ways of cutting safety corners, or

Foreword, Administrative War, 82 GEO. WASH. L. REV. 1343

(2014); Stephen M. Johnson, Indeconstructible: The Triumph

of the Environmental “Administrative State”, 86 U. CIN. L.

REV. 653 (2018).

Mistretta, 488 U.S. at 372.

new ways of conning gullible buyers. Confidence in

our industries grows when consumers know they can

count on the safety and reliability of the product.

Would the American pharmaceutical industry be a

world powerhouse if patent medicine hucksters were

still allowed to operate? Regulation sets a positive

frame for our economic progress.

Despite all this success, certain regulated

industries resent the constraint of regulation. Deeppocketed industries with massive lobbying and public

relations teams and well-funded political leverage

would undo government’s capacity for highly

technical regulation. These industries have set about

fabricating legal theories into deregulatory weapons.

Industry-funded think tanks and scholars produce

“intellectual capital” to “frame, filter, or shape the

outcome of . . . decision-making process[es] according

to their own shared beliefs, principles, or values.”23

Front groups proliferate these arguments, promoting

them

through

pseudo-grassroots

organizing,

legislative lobbying, industry-financed conferences,

and industry-driven litigation, including the filing of

orchestrated flotillas of amicus briefs.24

23 AMANDA HOLLIS-BRUSKY, IDEAS WITH CONSEQUENCES: THE

FEDERALIST SOCIETY AND THE CONSERVATIVE

COUNTERREVOLUTION 7, 12 (2014).

See, e.g., Mark Joseph Stern, What the Koch Brothers’

Money Buys, SLATE (May 2, 2018) (discussing the Koch

Brothers’ funding of deregulatory academic institutions); Andy

Kroll, Exposed: The Dark-Money ATM of the Conservative

Movement, MOTHER JONES (Feb. 5, 2013); Alexander HertelFernandez, Caroline Tervo, & Theda Skocpol, How the Koch

brothers built the most powerful rightwing group you’ve never

heard of, THE GUARDIAN (Sept. 26, 2018); SHELDON

For example, opponents of regulation began

promoting the idea that delegation jeopardizes

“individual liberty.” Throughout the 1990s and

2000s, industry front groups inundated Congress and

the public with handbooks and articles calling

delegation “The Corrosive Agency of Democracy” and

warning that it “subjects the lives, liberty, and

property of Americans to arbitrary rule.”25

These industry front groups and their funders

are part of a well-organized and tightly connected

web of organizations, which we often see dedicated to

promoting climate denial and opposing climate action

in Congress, at executive agencies, and in the courts.

Amici Competitive Enterprise Institute, Americans

for Prosperity Foundation, Cato Institute, Mountain

States Legal Foundation, Landmark Legal

WHITEHOUSE, CAPTURED 147-58 (2017) (discussing darkmoney industry funding of plaintiffs, counsels, and amici

curiae in pro-industry litigation).

The Role of Congress in Monitoring

Administrative Rulemaking, CATO INST. (Sept. 12, 1996)

25 Jerry Taylor,

(stating that delegation “undermin[es] democracy”); CATO

INST., “The Delegation of Legislative Powers” in Cato

Handbook for Congress 99-101 (2003) (describing delegation as

“The Corrosive Agency of Democracy”); see also Robert A.

Anthony, Unlegislated Compulsion: How Federal Agency

Guidelines Threaten Your Liberty, CATO INST. (Aug. 11, 1998).

In 2014, Taylor realized he, Cato, and the rest of the rightwing anti-climate groups were misleading the public about

climate change. In a noisy exit, he left Cato and began

supporting policies to reduce greenhouse gas emissions. See

David Roberts, The arguments that convinced a libertarian to

support aggressive action on climate, VOX (May 12, 2015),

https://www.vox.com/2015/5/12/8588273/the-arguments-thatconvinced-this-libertarian-to-support-a-carbon-tax.

Foundation, and Southeastern Legal Foundation are

all part of this network of groups.26

In his book, The War on Science, Shawn Otto

makes a crucial point about the “freedom” narrative

that big, regulated industries want to sell about

regulation:

“[W]e accept limitations on our

individual freedoms to gain greater freedom,”

through “regulations that reduce smog, acid rain,

ozone destruction, the use of DDT, backyard burning

of garbage, driving while intoxicated, noise pollution,

lead in paint and gasoline, certain carcinogens, water

pollution—and

recently,

exposure

secondhand smoke, injuries caused by not wearing

seat belts, and texting while driving.”27 The freedom

we gain from these regulations is “the freedom they

provide from the tyranny of others’ stupid decisions,”

freedom from “a tyranny of trash—of ignorance.”28

Regulation is indeed a constraint on corporate

actions; but it’s one that delivers freedoms the rest of

us enjoy.

Concocting and exploiting deregulatory

ideology is no small effort, and it has a parallel effort

in the political process. The fossil fuel industry floods

members of Congress with campaign contributions to

impede Congress’s attempts to combat climate

Institutionalizing delay: foundation funding

and the creation of U.S. climate change counter-movement

organizations, CLIMATIC CHANGE (Dec. 2013),

26 Robert Brulle,

https://www.cssn.org/wpcontent/uploads/2020/12/InstitutionalizingDelayClimaticChange.pdf.

27 SHAWN OTTO, THE WAR ON SCIENCE (2016).

Id.

change; it funds supposedly “independent” political

spending groups and super PACs and supposedly

non-political “issue ads” to exert further political

force; and it secures the placement of proven industry

allies atop key agencies like EPA to implement its

agenda.29

Regrettably, there was another parallel effort,

one targeting the judiciary. To achieve the political

goal

“deconstruction”

the

so-called

“administrative state,” judicial appointments were

made part of the “larger plan” to eradicate regulatory

agencies.30 In the last administration, former White

House Counsel Don McGahn “exercised an

See e.g., Matthew H. Goldberg et al., Oil and Gas Companies

Invest in Legislators that Vote Against the Environment, 117

PROCEEDINGS OF THE NAT'L ACAD. OF SCIENCES 5111 (2020)

(“The more a given member of Congress votes against

environmental policies, the more contributions they receive

from oil and gas companies supporting their reelection.”); Alan

Zibel, Big Oil's Capitol Hill Allies, PUB. CITIZEN (Feb. 10, 2021)

(documenting $13.4 million in donations from oil and gas

interests to twenty-nine lawmakers who signed a letter

denouncing the Biden administration’s pause on new oil and

gas leases); Suzanne Goldenberg & Helena Bengtsson, Oil and

gas industry has pumped millions into Republican campaigns,

THE GUARDIAN (Mar. 3, 2016) (documenting approximately

$107 million donated through fossil fuel superPACs to

Republican presidential candidates in 2015); Danielle Ivory &

Robert Faturechi, The Deep Industry Ties of Trump’s

Deregulation Teams, N.Y. TIMES (July 11, 2017).

30 Jeremy W. Peters, Stephen Bannon Reassures

Conservatives Uneasy About Trump, N.Y. TIMES (Feb. 23,

2017); Eli Watkins, Top WH lawyer details Trump admin’s

‘larger plan’ to shrink regulatory state, POLITICO (Feb. 22,

2018); see also Luke Hartig, Trump’s Four-Pronged War on the

Administrative State, JUST SECURITY (Feb. 7, 2018).

unprecedented degree of control over judicial

appointments,”31 and stated plainly that “the judicial

selection and the deregulation effort are really the

flip side of the same coin.”32 More than $400 million

was spent on this deregulatory effort targeting the

judiciary, with much of it coming in large donations

from anonymous sources, while fossil fuel interests

donated added millions to the then-president’s

reelection campaign.33

This is the environment that these special

interests have created through their influence

operation. For this Court to ignore it would be a

grave error.

How the Trump Administration is

Remaking the Courts, N.Y. TIMES (Aug. 22, 2018).

32 Robert Barnes & Steven Mufson, White House Counts on

Kavanaugh in Battle Against ‘Administrative State’, WASH.

POST (Aug. 12, 2018); see also Zengerle, supra note 31 (quoting

31 Jason Zengerle,

McGahn’s November 2017 speech to the Federalist Society

observing that “regulatory reform and judicial selection are so

deeply connected”).

What’s Wrong with the Supreme Court: The Big-Money

Assault on Our Judiciary: Hearing Before the S. Comm. on the

Judiciary, 117th Cong. 6 (2021) (statement of Lisa Graves);

Peter Stone, Big oil remembers ‘friend’ Trump with millions in

campaign funds, THE GUARDIAN (Aug. 9, 2020); Matt Egan,

Exxon denies Trump called CEO for money. But Big Oil is

donating way more to Trump than Biden, CNN (Oct. 21, 2020).

C. Regulated industries brought these cases

because they believe the Court will fulfill

their decades-long deregulatory goals.

Now this industry machine turns to the

judiciary to push its policy agenda, asking the Court

yet again to do what Congress has consistently

refused to do: gut EPA’s regulatory authority under

one of our preeminent environmental protection

laws. The anti-regulatory arguments advanced here

would shield deep-pocketed and politically-powerful

coal, oil, and gas interests from regulation under the

statutory EPA authority challenged by the

petitioners, and give polluters new opportunities to

tangle and delay regulation of their emissions.34 It is

no surprise that most, if not all, of the amici

supporting the petitioners in these cases receive

substantial funding from this industry.35

For example, amicus Competitive Enterprise

Institute has received funding from Exxon Mobil,

Murray Energy, the American Fuel and

34 This extremist anti-regulatory agenda has even been

rejected by several of the nation’s leading electric utilities. See

Br. for Power Company Resp’ts.

Amici with known-funding ties to the fossil fuel industry

include the New Civil Liberties Alliance, New England Legal

Foundation,

Buckeye

Institute,

Southeastern

Legal

Foundation, National Federation of Independent Small

Business Legal Center, Claremont Institute, Americans for

Prosperity Foundation, Competitive Enterprise Institute, Cato

Institute, Mountain States Legal Foundation, and Landmark

Legal Foundation. Because so many industry front groups do

not disclose their donors, and because the Court does not

meaningfully enforce its amicus disclosure under Rule 37.6, we

are denied a more complete understanding of the linkages.

Petrochemical

Manufacturers,

the

American

Petroleum Institute, and groups tied to the fossil fuel

billionaire Koch family.36 Amicus Cato Institute was

founded by the Koch family and has been richly

funded by groups tied to the Kochs, as well as Exxon

Mobil and other fossil fuel companies.37 Amicus

Americans for Prosperity Foundation, an arm of the

group Americans for Prosperity, was also founded by

the Koch family, and has received funding from

numerous groups tied to the family.38 Other amici do

not reveal their funding sources, but their output of

climate denialism is a hallmark of industry-funded

propaganda.39 Moreover, some amici, like the Cato

Institute, have been instrumental in developing and

promoting the industry “intellectual capital” that

undergirds these challenges to EPA’s authority.40

The industry-funded and industry-promoted

arguments made here have been repeatedly rejected

by the Court, and would empower and enrich

polluting corporations at the expense of public

health, welfare, and the environment. The Court

should refuse to participate in this industry-driven

project. Reversals of precedent that reek of politics,

Competitive Enterprise Institute, DESMOG,

https://www.desmog.com/competitive-enterprise-institute/.

Cato Institute, DESMOG, https://www.desmog.com/cato-

institute.

Americans for Prosperity, DESMOG,

https://www.desmog.com/americans-for-prosperity/.

39 See, e.g., Doctors for Disaster Preparedness, Ozone hole,

Global warming, and other Environmental Scares,

http://ddponline.org/envir.htm.

40 See supra note 25.

and are advanced by thinly-disguised but highlymotivated industry front groups, create a “stench”

that is likely to undermine the public’s remaining

faith in the Court.41

III.

Limiting Congress’s Ability to Delegate Would

Undermine the Federal Government’s Ability to

Function.

A. There is no legitimate basis for

eviscerating Congress’s authority to

delegate.

The industry arguments presented here were

reverse-engineered to produce desired outcomes, so it

should be no surprise if they trespass into falsehood

and fancy. And they do.

For instance, anti-delegation legal theories do

not

hand

power

back

“the

people’s

representatives.”

democratically-elected

Congress created these agencies and maintains

oversight of (and even has expedited procedures for

rebuking) agency actions.43 Every appropriations bill

gives Congress an opportunity to expand or contract

agency authorities via funding. We Senators sit on

legislative committees dedicated to agency oversight,

with the power to call agencies to account. The

See Transcript of Oral Argument at 15, Dobbs v. Jackson

Women’s Health, No. 19-1392 (Dec. 1, 2021).

42 Gundy v. United States, 139 S. Ct. 2116, 2142 (2019)

(Gorsuch, J., dissenting).

43 Congressional Review Act, 5 U.S.C. § 801.

“people’s representatives” speak through these laws,

and act through these powers.

These agency duties are then carried out by

officials appointed by the president, “the most

democratic and politically accountable official in

Government.”44 Recent decisions have vouchsafed

that executive branch agencies “remain accountable

to” and “dependent on the President, who is in turn

accountable to the people.”45 The industry’s antidelegation theories would de-democratize this

process by transferring power to an unelected

judiciary, to strike down laws whenever a delegation

of power makes them uncomfortable. This removes

political decisions further from democratic

accountability. The industry theorists have this

exactly backward.

The industry’s anti-delegation theories have

no constitutional basis. An extensive review of

Founding-era understandings of the separation of

powers reveals that the Constitution, as understood

by the Founders, “contained no discernable, legalized

prohibition on delegations of legislative power, at

least so long as the exercise of that power remained

subject to congressional oversight and control.”46

Early Congresses regularly enacted laws that

“broadly empowered executive and judicial actors to

Seila Law LLC v. Consumer Financial Protection Bureau,

140 S. Ct. 2183, 2203 (2020).

Id. at 2197, 2211.

Delegation at

the Founding, 121 COLUM. L. REV. 277, 280 (2021). But see

Ilan Wurman, Nondelegation at the Founding, 111 YALE L.J.

46 Julian Davis Mortenson & Nicholas Bagley,

1490 (2021).

adopt binding rules of conduct for private parties on

some of the most consequential policy questions of

the era.”47 These delegations often came “without

even a whiff of constitutional protest.”48

There is abundant incentive, but little

historical or legal basis, for the anti-regulatory

industry theories.

B. Delegation is essential for Congress to

accomplish its lawmaking responsibility,

particularly with respect to environmental

protection statutes.

Our increasingly advanced twentieth-century

economy relied on the widespread combustion of

fossil fuels and the manufacture and use of

thousands of chemicals and other synthetic

substances.

Unfortunately, this resulted in

widespread environmental destruction and public

health damage.

Substances emitted during

combustion and manufacturing polluted our air,

water, ground, and food; and are now disturbing even

the basic oceanic and climatic operating systems of

our planet.

Facing these environmental and public health

perils, Congress passed and amended environmental

protection statutes over the last six decades,

including the Clean Air Act, passed in 1963 and

supra note 47, at 277; see also

Nicholas Parrillo, A Critical Assessment of the Originalist

47 Mortenson & Bagley,

Case Against Administrative Regulatory Power: New Evidence

from the Federal Tax on Private Real Estate in the 1790s, 130

YALE L.J. 1288 (2021).

48 Mortenson & Bagley,

supra note 47, at 332.

amended in 1970, 1977, and 1990; the Clean Water

Act, passed in 1972 and amended in 1977 and 1987;

and the Toxic Substances Control Act (TSCA), passed

in 1976 and amended in 2016.

These statutes are intentionally designed to

allow EPA to respond to the rapid pace of industrial,

scientific, and technological innovation. They are, by

congressional design, forward-looking, directing EPA

to periodically recalibrate its regulatory approach in

response to changes in industry, technology, and

science. For example, the 1970 amendments to the

Clean Air Act direct EPA to periodically determine

the types of stationary sources that significantly

contribute to “air pollution which may reasonably be

anticipated to endanger public health or welfare,”

and then to develop standards of performance in

order to reduce the pollution.49

The legislative history of the 1970

amendments to the Clean Air Act is replete with

expressions of Congress’s intent that EPA respond to

changing conditions and advances in scientific

understanding.50 Congress reaffirmed this EPA

regulatory flexibility in the 1977 and 1990

amendments to the Clean Air Act.

An amicus brief filed by Republican members

of Congress is wrong in suggesting that EPA is

49 42 U.S.C. § 7411.

See, e.g., STATEMENT OF REP. SPRINGER, reprinted in 2 A

LEG. HIST. OF THE CLEAN AIR AMENDMENTS OF 1970, 809

(1970); TESTIMONY OF DR. JOHN MIDDLETON, BEFORE THE

SENATE PUBLIC WORKS COMMITTEE’S SUBCOMMITTEE ON AIR

AND WATER POLLUTION, reprinted in 2 A LEG. HIST. OF THE

CLEAN AIR AMENDMENTS OF 1970, 1185 (1970).

limited in its ability to deal with the emissions

responsible for climate change. The brief argues that

because Congress has on occasion passed laws more

specific to greenhouse gas emissions, the Clean Air

Act’s forward-looking grant of authority to EPA to

regulate air pollutants and sources that endanger

health and human welfare is limited.51

This argument fails on numerous grounds.

First, Congress is well-within its power to pass a

specific law about a single category of air pollutants

while also maintaining a broad, forward-looking

regulatory authority to address air pollutants

generally, in a way consistent with evolving science

and technology. For example, like the Clean Air Act,

TSCA provides a forward-looking grant of regulatory

authority given the number of new, potentially toxic

chemicals developed and commercialized by

industry—as many as 1,100 new chemicals since

mid-2016 alone.52 To require Congress to write a law

for each class of pollutants is absurd and terribly

dangerous for the environment and public health.

Even were Congress capable of developing and

passing legislation for each and every pollutant, as

scientific understanding of the harmfulness of

pollutants evolves, such laws would quickly become

outdated.

Scientific understanding of the

51 Br. of 91 Members of Congress as

Amici Curiae in Supp. of

Pet’rs 13-19.

See Statistics for the New Chemicals Review Program under

TSCA, U.S. ENVIRONMENTAL PROTECTION AGENCY,

https://www.epa.gov/reviewing-new-chemicals-under-toxicsubstances-control-act-tsca/statistics-new-chemicalsreview#noc.

harmfulness of fine particulate matter, of lead paint

and pipes, and of the dangers of planetary warming

has changed significantly with time.53

Third, technology to reduce and erase

pollutants is constantly evolving. A decade ago,

carbon capture technology would not have been a

viable option to limit greenhouse gas emissions.

Now, it is increasingly deployed.54

Congress may choose to delegate substantial

authority to agencies because Congress does not have

the resources or expertise required.55 EPA, for

instance—an

agency

solely

dedicated

environmental work—employs roughly as many

individuals as every congressional committee and

member office combined.56 It is simply not possible

See, e.g., The Need for a Tighter Particulate Air-Quality

Standard, 383 N. ENG. J. MED. 680, 680-83 (2020); Michele

Augusto Riva et al., Lead Poisoning: Historical Aspects of a

Paradigmatic “Occupational and Environmental Disease”, 3

SAFE HEALTH WORK 11, 11-14 (2012); U.N. Intergovernmental

Panel on Climate Change, Global Warming of 1.5°C (2019).

See GLOBAL STATUS OF CCS 2021, GLOBAL CCS INST.,

https://www.globalccsinstitute.com/wpcontent/uploads/2021/11/Global-Status-of-CCS-2021-GlobalCCS-Institute-1121.pdf.

55 See, e.g., J. Harvie Wilkinson III, Assessing the

Administrative State, 32 J.L. & POL. 239, 241 (2017) (“[I]t is

difficult to legislate in minute detail upon intricate and

technical subjects where the body of knowledge is changing

and growing by the day. As a practical matter, the legislative

process just cannot keep up.”).

56 Compare U.S. Environmental Protection Agency, EPA’s

Budget and Spending,

https://www.epa.gov/planandbudget/budget (last accessed Jan.

7, 2022) (showing an EPA workforce of 14,297 in fiscal year

to drive all the work of all the administrative

agencies through Congress itself. Even if agencies

completed 99% of the work required to develop and

draft a new rule, requiring Congress to enact those

thousands of rules that are published by agencies

each year would still vastly exceed the hours on the

legislative calendar.57

Congress may also choose to delegate

substantial authority to agencies in order to create

an orderly, expert, and transparent environment for

complex technical decisions. Congress is witness to

its own susceptibility to the outsize influence of

industries that have vast resources—a vulnerability

made much worse by the political dark money deluge

that followed the Court’s decision in Citizens United

v. FEC.58

Even when legislative action has

overwhelming public support, political interests can

2021) with R. ERIC PETERSEN, CONG. RESEARCH. SERV.,

R43947, HOUSE OF REPRESENTATIVES STAFF LEVELS IN

MEMBER, COMMITTEE, LEADERSHIP, AND OTHER OFFICES, 19772021 10 tbl. 1 (2021) (showing approximately 7,649 House

employees in personal offices and committees) and R. ERIC

PETERSEN, CONG. RESEARCH. SERV., R43946, SENATE STAFF

LEVELS IN MEMBER, COMMITTEE, LEADERSHIP, AND OTHER

OFFICES, 1977-2020 6 tbl. 1 (2020) (showing approximately

5,193 Senate employees in personal offices and committees).

57 See MAEVE P. CAREY, CONG. RESEARCH. SERV., R43056,

COUNTING REGULATIONS: AN OVERVIEW OF RULEMAKING, TYPES

OF FEDERAL REGULATIONS, AND PAGES IN THE FEDERAL

documents published in the Federal Register each year

between 2005-2018).

58 558 U.S. 310 (2010). Anna Massoglia, ‘Dark money’ in

politics skyrocketed in the wake of Citizens United,

OPENSECRETS (Jan. 27, 2020).

use dark-money power to block it. We in Congress

have seen fossil fuel interests, including those behind

this litigation, wield that power to block legislation

combatting climate change for over a decade.59 Some

of us were in the Senate when climate change was a

bipartisan issue, before Citizens United unleashed

the torrents of political (and now usually anonymous)

spending that put an end to that.

While

administrative agencies are susceptible to regulatory

“capture,” they are better protected than Congress

See, e.g., Frank Newport, Americans Want Government to Do

More on Environment, GALLUP NEWS (Mar. 29, 2018)

(“Proposals to reduce emissions, enforce environmental

regulations, reduce fracking, spend government money on

alternative energy sources and pass a carbon tax all receive

majority approval – in some instances over 70%.”). A single

front group for fossil fuel interests declared it would spent $750

million dollars to influence the 2016 election, and warned

Republican candidates that they would be “severely

disadvantaged” and would face “political peril” if they crossed it

on climate change. See WHITEHOUSE, CAPTURED, supra note 24,

at 175-77 (2017); Matea Gold, Charles Koch Downgrades His

Political Network’s Projected 2016 Spending from $889 million

to $750 million, WASH. POST (Oct. 21, 2015); Coral Davenport,

Why Republicans Keep Telling Everyone They’re Not Scientists,

N.Y. TIMES (Oct. 30, 2014); Eric Holthaus, Researchers: Exxon,

Koch Family Have Powered the Climate Denial Machine for

Decades, SLATE (Dec. 1, 2015); Puneet Kollipara & David

Malakoff: For the First Time in Years, the U.S. Senate Voted on

Climate Change. Did Anybody Win?, SCI. MAG. (Jan. 29, 2015);

Jane Mayer, Koch Pledge Tied to Congressional Climate

Inaction, NEW YORKER (June 30, 2013); Jeffrey Toobin,

Republicans United on Climate Change, NEW YORKER (June 9,

2014).

from the malign influence that well-resourced

industries can now apply.60

In sum, delegation to regulatory agencies like

EPA allows Congress to meet the challenges our

country faces via well-overseen expert agencies that

are given statutory direction to develop and

implement technical policy solutions, to the benefit of

the American people and the American economy.

Finally, the industry-proposed dismantling of

this system invites mischief. It would not be easy to

articulate a principle for determining which

delegations would remain constitutional and which

would not. The absence of a clear workable principle

opens the door to judicial caprice. The ultimate

decision would often come down to one thing: a

judge’s decision about whether a delegation is, in his

or her own mind, too much.61 That is nothing more

than judicial policymaking at its worst. Without a

clear, bright line, moreover, it will be impossible to

stem the flood of new, time-consuming tasks

unprecedentedly thrust upon Congress.62

See, e.g., PREVENTING REGULATORY CAPTURE: SPECIAL

INTEREST INFLUENCE AND HOW TO LIMIT IT 1-11 (Daniel

Carpenter & David A. Moss eds., 2013).

See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 423 (D.C. Cir.

2017) (en banc) (Kavanaugh, J., dissenting from the denial of

reheaing en banc) (“To be sure, determining whether a rule

constitutes a major rule sometimes has a bit of a ‘know it when

you see it’ quality.”).

62 See Gundy, 139 S. Ct. at 2130. (“Indeed, if SORNA’s

delegation is unconstitutional, then most of Government is

unconstitutional . . . .”).

The Court has neither the expertise nor the

record to evaluate the “options” suggested by Justice

Gorsuch in Gundy.63 None of these “options” provide

any clear principle for determining which delegations

are permissible and which are unconstitutional.

Of course, industry groups understand this all

too well. It is precisely because delegation of

authority to administrative agencies is so critical

that these groups seek to hobble it. They know that

if they can enlist the Court to push these

responsibilities over onto Congress, they will be

better able to defeat effective regulation of their

industries.

The American administrative law model is

implicitly or explicitly reaffirmed virtually daily by

Congress; it has been immensely successful and

enjoys broad popular support and reliance; and it has

been upheld repeatedly and for decades by the Court.

It would be folly to disrupt that successful model now

based on judicial surmise and special-interest

pleading. The Court should deny these industries’

invitation to disable, for their own benefit, the

American government’s ability to function in the

modern world.

Id. at 2145 (Gorsuch, J., dissenting) (“What is more,

Congress is hardly bereft of options to accomplish all it might

wish to achieve. It may always authorize executive branch

officials to fill in even a large number of details, to find facts

that trigger the general applicable rule of conduct specified in

a statute, or to exercise non-legislative powers. Congress can

also commission agencies or other experts to study and

recommend legislative language.”).

CONCLUSION

For the foregoing reasons, the opinion of the

D.C. Circuit should be affirmed.

January 24, 2021

Respectfully submitted,

Erwin Chemerinsky

University of California, Berkeley

School of Law

Law Building 215

Berkeley, California 94720

(510) 642-6483

echemerinsky@law.berkeley.edu

Counsel for Amici Curiae

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.