Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJan 25, 2022
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Nos. 20-1530, 20-1531, 20-1778, and 20-1780
IN THE
Supreme Court of the United States
STATE OF WEST VIRGINIA, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
(Additional Captions Listed on Inside Cover)
On Writs of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit
BRIEF FOR AMICI CURIAE FORMER
COMMISSIONERS OF THE FEDERAL
ENERGY REGULATORY COMMISSION
IN SUPPORT OF RESPONDENTS
STEPHEN E. ROADY
Counsel of Record
EMMA C. WELLBAUM
DUKE UNIVERSITY SCHOOL OF LAW
210 Science Drive
Box 90360
Durham, NC 27708
(202) 257-9114
steve.roady@duke.edu
Counsel for Amici Curiae
THE NORTH AMERICAN COAL CORPORATION,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.
Respondents.
WESTMORELAND MINING HOLDINGS LLC,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
STATE OF NORTH DAKOTA,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICI CURIAE....................... 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 5
I. EPA’s Exercise of Authority Under the
Clean Air Act Does Not Contravene the
Commission’s Authority under the FPA ......... 5
A. The Commission and EPA Exercise
Independent
Authorities
Under
Different Statutes ....................................... 6
B. The FPA Authorizes Environmental
Regulations
to
Be
Temporarily
Overridden in Emergencies Only .............. 9
C. The Broader Statutory Context Bolsters
EPA’s Clear Authority to Regulate Air
Pollution from EGUs ................................ 11
D. The
Commission’s
Longstanding
Administrative Practice Respects EPA’s
Environmental Authority ......................... 12
E. The Commission Has Ruled that It
Lacks
Jurisdiction
Over
the
Environmental Attributes of Generation
Not Directly Related to the Wholesale
Sale of Electricity in Interstate
Commerce.................................................. 16
II. The FPA Cannot Be Used to Shield States
from EPA’s Regulation of Pollution Under
the Clean Air Act ........................................... 17
ii
III.The Energy Transition is Profound and
Ongoing........................................................... 19
CONCLUSION.......................................................... 26
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Am. Lung Ass’n v. EPA, 985 F.3d 914 (2021),
cert. granted, West Virginia v. EPA,
142 S. Ct. 420 (2021) ..................... 2, 4, 7, 8, 14, 19
Cal. Indep. Sys. Operator Corp. v. FERC,
372 F.3d 395 (2004) ............................................... 7
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ....................................... 10, 19
FERC v. Elec. Power Supply Ass’n,
577 U.S. 260 (2016) ............................... 7, 8, 19, 24
Hughes v. Talen Energy Mktg., LLC,
578 U.S. 150 (2016) ............................................... 7
Jama v. Immigration and Customs Enforcement,
543 U.S. 335 (2005) ............................................. 10
Oneok, Inc. v. Learjet, Inc.,
573 U.S. 373 (2015) ............................................... 7
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................... 9, 20, 25
STATUTES
16 U.S.C. § 824(b)(1) ................................................. 17
16 U.S.C. § 824a(c) .............................................. 4, 6, 9
16 U.S.C. § 824a(c)(2) ............................................... 10
16 U.S.C. § 824a(c)(4) ............................................... 10
16 U.S.C. § 824d(a) ..................................................... 6
16 U.S.C. § 824o(b)(1)14Error!
defined.
Bookmark
not
iv
42 U.S.C. § 7151(b) ..................................................... 9
42 U.S.C. § 7411(d) ................................................... 17
42 U.S.C. § 7411(d)(1) ............................................... 17
42 U.S.C. § 7521(a)(1) ................................................. 9
42 U.S.C. §§ 7651–7651o ...................................... 4, 13
Pub. L. No. 95-91, 91 Stat. 565 (1977) ............... 11, 12
Pub. L. No. 95-95, 91 Stat. 685 (1977) ........... 6, 11, 12
Pub. L. 114-94, § 61002(a), 129 Stat. 1772 (2015) .... 9
FEDERAL REGISTER
63 Fed. Reg. 57,356 (Oct. 27, 1998) ......................... 13
70 Fed. Reg. 25,162 (May 12, 2005) ......................... 13
76 Fed. Reg. 48,207 (Aug. 8, 2011)........................... 13
77 Fed. Reg. 9,303 (Feb. 16, 2012) ........................... 13
80 Fed. Reg. 64,662 (Oct. 23, 2015) ....... 14, 15, 18, 20
82 Fed. Reg. 48,035 (Oct 16, 2017) .......................... 20
84 Fed. Reg. 32,520 (July 8, 2019) ............................. 2
AGENCY ORDERS
Commission Comments on Grand River Dam
Authority’s Request for EPA Administrative
Order, 151 FERC ¶ 61,027 (2015) ...................... 14
Commission Comments on Kansas City Board of
Public
Utilities’
Request
for
EPA
Administrative Order, 149 FERC ¶ 61,138
(2014) ................................................................... 14
v
Demand Response Compensation in Organized
Wholesale Energy Markets, Order No. 745, 134
FERC ¶ 61,187, order on reh’g and
clarification, Order No. 745-A, 137 FERC
¶61,215 (2011), reh’g denied, Order No. 745-B,
138 FERC ¶61,148 (2012), vacated sub nom.
Elec. Power Supply Ass’n v. FERC, 753 F.3d
216 (D.C. Cir. 2014), rev’d & remanded sub
nom. FERC v. Elec. Power Supply Ass’n, 577
U.S. 260 (2016) .................................................... 24
Edison Elec. Inst., 69 FERC ¶ 61,344, 1994 WL
701306 (1994) ...................................................... 16
Electric Storage Participation in Markets Operated
by Regional Transmission Organizations and
Independent System Operators, Order No. 841,
162 FERC ¶ 61,127 (2018), order on reh’g,
Order No. 841-A, 167 FERC ¶61,154 (2019),
aff’d sub nom. Nat’l Ass’n of Regulatory Util.
Comm’rs v. FERC, 964 F.3d 1177 (D.C. Cir.
2020) ..................................................................... 24
In the Matter of Grand River Dam Authority, AEDCAA-113(a)-2016-0002 (EPA 2016) .................... 14
In the Matter of Board of Public Utilities of the
United Government of Wyandotte/Kansas City,
Kansas, AED-CAA-113(a)-2016-0001 (EPA
2016) ..................................................................... 14
Order Terminating Rulemaking Proceeding,
Initiating New Proceeding, and Establishing
Additional Procedures, 162 FERC ¶ 61,102
(2018) ................................................................... 22
vi
Participation of Distributed Energy Resource
Aggregations in Markets Operated by Regional
Transmission Organizations and Independent
System Operators, Order No. 2222, 85 Fed.
Reg. 67,094 (Oct. 21, 2020), 172 FERC ¶ 61,247
(2020), corrected, 85 Fed. Reg. 68,450 (Oct. 29,
2020), order on reh’g, Order No. 2222-A, 174
FERC ¶61,197 (2021) ......................................... 25
Policy Statement on the Commission’s Role
Regarding the Environmental Protection
Agency’s Mercury and Air Toxics Standards,
139 FERC ¶ 61,131 (2012) .................................. 13
WSPP Inc., 139 FERC ¶ 61,061 (2012) .................... 16
COURT DOCUMENTS
Brief for Petitioners, West Virginia v. EPA, No. 201530 (Dec. 13, 2021) .............................................. 3
Brief of Petitioner Westmoreland Mining Holdings
LLC, West Virginia v. EPA, No. 20-1530 (Dec.
13, 2021) ................................................................. 3
Brief of Respondent Basin Electric Power
Cooperative in Support of Petitioners, West
Virginia v. EPA, No. 20-1530 (Dec. 13, 2021) ...... 3
Brief of Respondent National Mining Association
in Support of Petitioners, West Virginia v. EPA,
No. 20-1530 (Dec. 13, 2021) .................................. 3
vii
MISCELLANEOUS AUTHORITIES
Andrew D. Mills et al., Lawrence Berkeley
National Laboratory, Impact of Wind, Solar,
and Other Factors on Wholesale Power Prices
(2019), https://eta%2Dpublications.lbl.gov/site
s/default/files/lbnl_%2D_wind_and_solar_impa
cts_on_wholesale_prices_approved.pdf ............. 23
FERC, Energy Primer: A Handbook of Energy
Market Basics (Apr. 2020), https://www.ferc.go
v/sites/default/files/2020%2D06/energy%2Dpri
mer%2D2020_0.pdf ............................................. 22
FERC, Office of Energy Projects Infrastructure
Update for May 2019 (July 2019), https://cms.f
erc.gov/media/2656 .............................................. 21
FERC, Reliability Primer (2020), https://www.ferc
.gov/sites/default/files/2020%2D04/reliability%
2Dprimer_1.pdf.................................................... 13
Jeff St. John, The 5 Biggest US Utilities
Committing to Zero Carbon Emissions by
2050, Greentech Media (Sept. 16, 2020),
https://www.greentechmedia.com/articles/read
/the-5-biggest-u.s-utilities-committing-to-zerocarbon-emissions-by-mid-century....................... 24
Joachim Seel et al., Plentiful Electricity Turns
Wholesale Prices Negative, Advances in
Applied Energy 4 (2021), https://doi.org/10.101
6/j.adapen.2021.100073 ...................................... 23
Lazard, Lazard’s Levelized Cost of Energy
Analysis – Version 15.0 (Oct. 2021), https://ww
w.lazard.com/media/451905/lazards-levelizedcost-of-energy-version-150-vf.pdf ....................... 22
viii
Letter from FERC Chair Norman C. Bay and
Commissioners Cheryl A. LaFleur, Colette D.
Honorable, Philip D. Moeller, and Tony Clark
to EPA Acting Administrator Janet G. McCabe,
May 15, 2015, https://www.ferc.gov/media/ferc
-letter-epapdf ....................................................... 15
NERC, State of Reliability 2021 (Aug. 2021),
https://www.nerc.com/pa/RAPA/PA/Performan
ce%20Analysis%20DL/NERC_SOR_2021.pdf .... 22
NREL, Electricity Generation Baseline Report
(2017), https://www.nrel.gov/docs/fy17osti/676
45.pdf ................................................................... 21
Sammy Roth, California Just Hit 95% Renewable
Energy. Will Other States Come Along for
the Ride?, LA Times (Apr. 29, 2021), https://w
ww.latimes.com/environment/newsletter/202104-29/solar-power-water-canals-californiaclimate-change-boiling-point .............................. 23
Steve Inskeep, Wyoming is Among the States
Spending Millions to Promote Carbon Capture,
NPR (Sept. 7, 2021), https://www.npr.org/2021
/09/07/1034719342/wyoming-is-among-thestates-spending-millions-to-promote-carboncapture ................................................................. 18
Taylor Kuykendall et al., Slated Retirements to
Cut US Coal Fleet to Less Than Half 2015
Capacity by 2035, S&P Global (July 29, 2021),
https://www.spglobal.com/marketintelligence/e
n/news-insights/latest-news-headlines/slatedretirements-to-cut-us-coal-fleet-to-less-thanhalf-2015-capacity-by-2035-65741012 ................ 21
ix
Tyler Stoff, How Southwest Power Pool Sets
Renewable Records Daily, ACORE (Apr. 8,
2021), https://acore.org/how-southwest-powerpool-sets-renewable-records-daily/ ..................... 23
U.S. Energy Info. Admin., Electricity Explained:
Electricity Generation, Capacity, and Sales in
the United States (Mar. 18, 2021), https://www
.eia.gov/energyexplained/electricity/electricityin-the-us-generation-capacity-and-sales.php ..... 21
U.S. Energy Info. Admin., Monthly Energy Review
December 2021, https://www.eia.gov/totalener
gy/data/monthly/pdf/mer.pdf .......................... 5, 20
U.S. Energy Info. Admin., Renewable Energy
Explained: Portfolio Standards (June 29,
2021), https://www.eia.gov/energyexplained/re
newable-sources/portfolio-standards.php........... 23
1
INTEREST OF THE AMICI CURIAE1
Amici curiae are a bipartisan group of former
Commissioners of the Federal Energy Regulatory
Commission (FERC or Commission), the independent
agency tasked by Congress to implement the Federal
Power Act (FPA). Amici have a substantial interest
in ensuring that the Court is informed on the reach of
and limits to the Commission’s FPA authority, as well
as the way in which the Commission has recognized
the Environmental Protection Agency’s (EPA) distinct
authority under the Clean Air Act. Moreover, amici
have first-hand knowledge of the authority reserved
to the States by the FPA, and three amici served as
former state public utility regulators. Amici believe
that they can provide a unique perspective to the
Court based on their knowledge of federal energy law,
federal and state jurisdiction, and the Commission’s
administrative practice of respecting EPA’s authority
under the Clean Air Act to regulate pollution from
entities in the electric power sector.
Amici were appointed by Republican and
Democratic Presidents and collectively served on the
Commission for a total of 42 years from its founding
in 1977 through 2017. Five amici chaired the
Commission. Commissioners Brownell, Norris, and
Honorable also served on state public utility
commissions. The amici are:
All parties have consented to the filing of this brief. In
accordance with Supreme Court Rule 37.6, amici curiae state
that neither the parties, nor their counsel, had any role in
authoring, nor made any monetary contribution to fund the
preparation or submission of, this brief.
1
2
Charles B. Curtis, Commissioner 1977-1981,
Chair 1977-1981.
Elizabeth A. Moler, Commissioner 1988-1997,
Chair 1993-1997.
James J. Hoecker, Commissioner 1993-2001,
Chair 1997-2001.
Nora Mead Brownell, Commissioner 2001-2006.
Jon Wellinghoff, Commissioner 2006-2013, Chair
2009-2013.
John Norris, Commissioner 2010-2014.
Norman C. Bay, Commissioner 2014-2017, Chair
2015-2017.
Colette D. Honorable, Commissioner 2015-2017.
SUMMARY OF ARGUMENT
In the Affordable Clean Energy (ACE) Rule, EPA
argued that the Clean Power Plan (CPP)
impermissibly encroached upon the Commission’s
authority under the Federal Power Act (FPA). Repeal
of the Clean Power Plan; Emission Guidelines for
Greenhouse Gas Emissions from Existing Electric
Utility Generating Units; Revisions to Emission
Guidelines Implementing Regulations, 84 Fed. Reg.
32,520, 32,529–30 (July 8, 2019). On review before
the D.C. Circuit, however, EPA did not press that
argument. Am. Lung Ass’n v. EPA, 985 F.3d 914, 969
n.12 (2021), cert. granted, West Virginia v. EPA, 142
S. Ct. 420 (2021). The court noted that EPA had “good
reason” for not doing so. Id. “The effects of
environmental regulations on the power grid do not
amount to power regulation statutorily reserved to
FERC.” Id.
3
Nevertheless, some parties continue to suggest
that the CPP intruded upon FERC’s FPA authority.
See Brief for Petitioners at 42, West Virginia v. EPA,
No. 20-1530 (Dec. 13, 2021) (“the federal government
already has an energy regulator for some of these
concerns: FERC”); Brief of Petitioner Westmoreland
Mining Holdings LLC at 40, West Virginia v. EPA, No.
20-1530 (Dec. 13, 2021) (“[t]hose technical fields are
the province of the States and FERC”); Brief of
Respondent Basin Electric Power Cooperative in
Support of Petitioners at 11–12, West Virginia v. EPA,
No. 20-1530 (Dec. 13, 2021) (“EPA’s attempt at
generation shifting intrudes on energy management
issues that are regulated by other federal, state, and
local regulatory bodies”); Brief of Respondent
National Mining Association in Support of Petitioners
at 44, West Virginia v. EPA, No. 20-1530 (Dec. 13,
2021) (“Clean Power Plan would also have
simultaneously intruded upon FERC’s core powers”).
Those arguments are meritless. In regulating air
pollutants, EPA exercises its broad statutory
authority under the Clean Air Act to protect public
health and welfare. The Commission, by contrast, is
charged with ensuring just and reasonable wholesale
rates under an entirely different statutory regime.
The CPP’s aim and target was reducing carbon
emissions. It was one of a long line of Clean Air Act
rules promulgated by EPA targeting air pollution
from fossil fuel-fired power plants. Many of those
rules have had a substantial impact on the cost and
utilization of higher-emitting power plants. Yet any
potential effect on wholesale electricity rates was
indirect. Despite EPA having regulated air pollution
from such sources for fifty years, amici are not aware
of a single Clean Air Act regulation that the
4
Commission has challenged in court as intruding
upon its authority under the FPA.
Fossil fuel-fired power plants, regulated as electric
generating units (EGUs) under the Clean Air Act, are
a significant source of air pollution in the United
States. Am. Lung Ass’n, 985 F.3d at 934–35. This
includes emissions of greenhouse gases and other air
pollutants. Therefore, the Clean Air Act authorizes
and, at times, directs EPA to regulate air pollution
from EGUs. See, e.g., 42 U.S.C. §§ 7651–7651o.
Although such regulation inevitably affects power
generation, Congress did not preclude EPA from
acting. On the contrary, at the height of concerns
about an energy crisis in the late 1970s, Congress
enhanced EPA’s air quality authorities as they relate
to the power sector. Further, only in time of war or
emergency did Congress empower energy regulators
under the FPA with a temporary and narrowly
tailored authority to require electric generation and
to suspend environmental compliance. 16 U.S.C.
§ 824a(c). Congress was therefore aware of the
impact of environmental regulations in reducing
pollution from the power sector and, barring
exceptional circumstances, was unwilling to allow the
FPA to override such regulations.
Against this backdrop, EPA and the Commission
have worked together to harmonize their authorities
in the context of major air pollution rules. EPA’s
authority to regulate air pollution is likewise not
limited by FPA provisions reserving state authority
over facilities used for the generation of electric
energy. The plain language of the FPA delineates the
relationship between the Commission and the States,
not the relationship between EPA and the States. In
5
contrast, the Clean Air Act authorizes EPA to set
national and interstate air pollution requirements
and standards, and relies upon a cooperative
federalism framework.
Finally, a profound energy transition is underway
in the United States. Even though the CPP was never
implemented, the United States met the national
target of a 32 percent reduction in carbon emissions
from 2005 levels in 2019, 11 years ahead of the CPP’s
schedule. See U.S. Energy Info. Admin., Monthly
Energy Review December 2021, at Table 11.6. This
ongoing energy transition validates generation
shifting as a cost-effective way to reduce air pollution,
including carbon pollution, without compromising
grid reliability or affordable electricity. Moreover, in
light of this transformation, any future greenhouse
gas regulation of the power sector by EPA under the
Clean Air Act would encounter a far different
industry than the agency did in 2015. This fact
undermines the necessity or relevance of reviewing a
rule that has been vacated and not replaced.
ARGUMENT
I. EPA’s Exercise of Authority Under the
Clean Air Act Does Not Contravene the
Commission’s Authority Under the FPA
The Commission and EPA regulate pursuant to
independent authorities granted under different
statutes. The plain text of the Clean Air Act and the
FPA makes clear that each reaches different aspects
of electric generation—air pollution for the former
and wholesale rates for the latter. The Commission’s
ratemaking authority is also limited to rules or
practices that directly affect wholesale rates. Unless
6
EPA targets and directly affects wholesale rates, the
Commission’s jurisdiction has not been invaded.
Moreover, the FPA does not give the Commission a
license to prevent other agencies from using their own
authorities simply because their regulations may
affect wholesale rates. Only in time of war or
emergency does the FPA provide a temporary and
narrowly
tailored
authority
to
suspend
environmental laws and regulations. 16 U.S.C.
§ 824a(c). Congressional acts enhancing air quality
authorities during the 1970s energy crisis underscore
EPA’s expansive authority to regulate power sector
air emissions even when environmental regulations
affect electricity generation. See, e.g., Pub. L. No. 9595, 91 Stat. 685 (1977). Not surprisingly, given this
broader statutory context and the text of the FPA, the
Commission’s longstanding administrative practice
has been to respect EPA environmental regulations,
to collaborate with EPA, and to harmonize the
exercise of its authority with that of EPA.
A. The Commission and EPA Exercise
Independent
Authorities
Under
Different Statutes
EPA is an environmental regulator, charged with
implementing and enforcing the Clean Air Act to limit
air pollution. The Commission, by contrast, is the
economic regulator for the wholesale power market,
ensuring, inter alia, that wholesale electricity rates
are “just and reasonable.” 16 U.S.C. § 824d(a).
Although the Commission and EPA regulate some of
the same entities, their statutory aims are distinct.
That a Clean Air Act rule may indirectly affect
wholesale rates does not preclude EPA action.
7
The key is whether EPA’s regulation tries to set
the rate to be paid for wholesale power. See FERC v.
Elec. Power Supply Ass’n, 577 U.S. 260, 284 (2016)
(ratemaking involves establishing the amount of
money the purchaser must pay in exchange for
power).
To ascertain whether jurisdictional
overreaching has occurred, this Court considers “the
target at which [a] law aims.” Id. at 282 (quoting
Oneok, Inc. v. Learjet, Inc., 573 U.S. 373, 385 (2015));
see also Hughes v. Talen Energy Mktg., L.L.C., 578
U.S. 150, 164 (2016) (finding FPA preemption of state
law that targeted wholesale rates). As long as EPA’s
aim and target is reducing pollution, its exercise of
authority under the Clean Air Act is not in conflict
with the Commission’s authority under the FPA. See
Am. Lung Ass’n, 985 F.3d at 966 (“The Clean Power
Plan was aimed not at regulating the grid, but
squarely and solely at controlling air pollution—a
task at the heart of the EPA’s mandate.”).
In contrast, the Commission’s ratemaking
jurisdiction under the FPA is limited to “rules or
practices that ‘directly affect the [wholesale] rate.’”
Elec. Power Supply Ass’n, 577 U.S. at 278 (quoting
Cal. Indep. Sys. Operator Corp. v. FERC, 372 F.3d
395, 403 (2004)). As the Court has explained,
“indirect or tangential impact on wholesale electricity
rates” lie beyond the Commission’s reach. Id. To hold
otherwise would give the FPA “near-infinite breadth”:
“FERC could regulate now in one industry, now in
another, changing a vast array of rules and practices
to implement its vision of reasonableness and justice.”
Id.
Regulations from a myriad of federal agencies can
increase generator costs—be they requirements from
the Department of Labor, Occupational Safety and
8
Health Administration, Pipeline and Hazardous
Materials Safety Administration, Nuclear Regulatory
Commission, National Surface Transportation Board,
Mine Safety Health Administration, or Bureau of
Land Management, to name but a few. To assert that
the Commission’s authority over wholesale electricity
markets precludes those agencies from exercising
their statutory authorities would be nothing short of
remarkable. Supreme Court precedent, “a commonsense construction of the FPA’s language” and
longstanding Commission practice, repudiate such a
sweeping view. Id.
Indeed, the CPP was one of a long line of Clean Air
Act rules promulgated by EPA, targeting air pollution
from fossil fuel-fired power plants. Many of those
rules—including the Mercury and Air Toxics
Standards, the Cross-State Air Pollution and Clean
Air Interstate Rules, the Acid Rain Program, the NOx
SIP call, and the first ever performance standards for
EGUs under the Clean Air Act, in 1971—have had a
substantial impact on the cost of operating higheremitting power plants and on the plants’ relative
utilization. See Am. Lung Ass’n, 985 F.3d at 966
(“Any regulation of power plants—even the most
conventional, at-the-source controls—may cause a
relative increase in the cost of doing business for
particular plants but not others, with some
generating-shifting effect. That is how pollution
regulation in the electricity sector has always
worked.”).
Not only is the Commission’s ratemaking
authority limited to rules or practices that directly
affect wholesale rates, but the FPA and Clean Air Act
have
different
statutory
mandates.
The
Commission’s obligation is to ensure just and
9
reasonable rates; EPA’s obligation is to protect the
“public’s ‘health’ and ‘welfare.’” Massachusetts v.
EPA, 549 U.S. 497, 532 (2007) (quoting 42 U.S.C.
§ 7521(a)(1)). “The two obligations may overlap, but
there is no reason to think the two agencies cannot
both administer their obligations and yet avoid
inconsistency.” See id. (comparing the statutory
obligations of EPA and the Department of
Transportation). The Commission’s obligation to
ensure just and reasonable rates is independent of
EPA’s obligation to protect the public health and
welfare. Their authorities arise out of different
statutes and reflect distinct policy goals. Compliance
with the regulation of air pollution from EGUs may
affect the cost of certain generators and therefore
generator choice but this impact is indirect and
tangential to EPA’s proper aim and target of reducing
carbon emissions. It does not intrude upon the
authority of the Commission.
B. The FPA Authorizes Environmental
Regulations
to
Be
Temporarily
Overridden in Emergencies Only
The FPA contains an emergency provision to order
electric “generation, delivery, interchange, or
transmission” during a time of “war” or “emergency.”
FPA § 202(c), 16 U.S.C. § 824a(c). This authority no
longer resides with the Commission, as Congress
delegated it to the Department of Energy (DOE) in the
DOE Organization Act. 42 U.S.C. § 7151(b). In 2015,
Congress amended section 202(c) to provide a
temporary and narrowly tailored authority to
suspend environmental laws and regulations in an
emergency order. Pub. L. 114-94, § 61002(a), 129
Stat. 1772 (2015).
10
Congress imposed significant guardrails to limit
use of this provision, which underscores its
exceptional nature. A section 202(c) order only
applies “during hours necessary to meet the
emergency and to serve the public interest.” 16 U.S.C.
§ 824a(c)(2), and must be “consistent with any
applicable Federal, State, or local environmental law
or regulation and minimize[] any adverse
environmental impacts.” Id. Moreover, when conflict
is unavoidable between the order and an
environmental standard, the order “shall expire not
later than 90 days after it is issued,” unless
reauthorized after consultation with the “primary
Federal agency with expertise in the environmental
interest.” Id. at § 824a(c)(4).
Thus, when Congress sought to include an
authority in the FPA that allows environmental
regulations to be overridden, it did so explicitly.
Congress recognized the extraordinary nature of the
authority, carefully tailored its use to the emergency,
and required the minimization of any adverse
environmental impact. The plain implication of this
language is that Congress did not intend the
Commission to possess a more expansive power to
override EPA’s mandate. See, e.g., EPA v. EME
Homer City Generation, L.P., 572 U.S. 489, 509–10
(2014) (quoting Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 341 (2005) (“We do not
lightly assume that Congress has omitted from its
adopted text requirements that it nonetheless intends
to apply, and our reluctance is even greater when
Congress has shown elsewhere in the same statute
that it knows how to make such a requirement
manifest.”)). Alongside the Clean Air Act’s extensive
references to regulation of EGU emissions, the FPA’s
11
emergency provision establishes that Congress was
aware of possible tensions between air regulation and
electric service, and yet short of wartime or
emergencies intended for environmental regulation to
proceed.
C. The
Broader
Statutory
Context
Bolsters EPA’s Clear Authority to
Regulate Air Pollution from EGUs
Long before amending section 202(c) of the FPA in
2015, Congress had addressed the relationship
between federal environmental and energy
regulation. Particularly instructive are the energy
and air quality laws enacted by Congress during the
energy crisis of the late 1970s. Those statutes
establish that Congress recognized the different aims
of energy and environmental legislation and the
importance of protecting the environment even
during energy shortages.
On August 4, 1977, amid heightened concerns of
“an increasing shortage of nonrenewable energy
resources,” Congress established DOE and the
Commission in the DOE Organization Act. Pub. L.
No. 95-91, 91 Stat. 565 (1977). Congress found that
“a strong national energy program” must be
“consistent with overall economic, environmental,
and social goals.” Id. at § 101. The legislation
required DOE to submit an annual report to Congress
to demonstrate, inter alia, that national energy needs
were being met “with due regard for the protection of
the environment.” Id. at § 657.
Three days later, Congress enhanced EPA’s
authority to protect and improve air quality by
amending the Clean Air Act. Pub. L. No. 95-95, 91
Stat. 685 (1977). This legislation created several new
12
programs that have been used to regulate pollution
from EGUs, including an interstate air pollution
authority, id. at § 108(a)(4), the Prevention of
Significant Deterioration Program, id. at § 127, and
the Regional Haze Program, id. at § 128.
With the energy crisis in mind, Congress directed
EPA to consider energy needs when setting emission
limitations and implementing air quality strategies.
See, e.g., id. at § 109(b). Congress also authorized the
President, upon a Governor’s request, to suspend a
state air quality plan for up to four months for an
energy emergency. Id. at § 107(a). This time-limited
emergency provision parallels the narrow emergency
provision under the FPA and establishes that
Congress did not intend for air quality regulations
generally to give way to energy concerns.
This history of congressional actions during the
late 1970’s is telling. Even during an energy crisis,
Congress did not override EPA authorities. To the
contrary, Congress empowered EPA with additional
authority to regulate air pollution from EGUs, and
crafted emergency provisions to override that
authority only temporarily and under limited
circumstances.
Congress recognized that air
pollution rules would affect decisions to operate EGUs
and signaled that, absent an emergency, energy and
environmental
regulators
should
work
to
accommodate the other’s distinct statutory aims and
missions.
D. The
Commission’s
Longstanding
Administrative
Practice
Respects
EPA’s Environmental Authority
Against this backdrop, the Commission has long
sought to harmonize Clean Air Act regulations with
13
its FPA duties, without viewing the regulations as
encroaching upon its jurisdiction. The Cross-State
Air Pollution Rule, 76 Fed. Reg. 48,207 (Aug. 8, 2011),
the Clean Air Interstate Rule, 70 Fed. Reg. 25,162
(May 12, 2005), the Acid Rain Program, 42 U.S.C. §§
7651–7651o, the NOx SIP Call, 63 Fed. Reg. 57,356
(Oct. 27, 1998), and the Mercury and Air Toxics
Standards (MATS), 77 Fed. Reg. 9,303 (Feb. 16,
2012), all regulated pollution from power plants.
Compliance with those rules, including the
installation of scrubbers or other controls,
undoubtedly increased the cost of generating
electricity, changed EGU utilization rates, and
resulted in decisions to retire units while replacing
them with cleaner resources. Yet the Commission has
never challenged in court EPA’s authority under the
Clean Air Act to promulgate these regulations.
An examination of the MATS rule illustrates how
the agencies have worked together to achieve
important environmental goals while minimizing
potential effects on wholesale electricity markets or
reliability. MATS required existing coal plants to
reduce mercury, acid gases, and other toxic emissions.
See Policy Statement on the Commission’s Role
Regarding the Environmental Protection Agency’s
Mercury and Air Toxics Standards, 139 FERC ¶
61,131, at P 2 (2012). Affected sources could seek a
one-year extension of the compliance start date for
reliability reasons. Id. The Commission oversees grid
reliability, and under section 215 of the FPA has
jurisdiction over the “users, owners, and operators of
the bulk-power system.” 16 U.S.C. § 824o(b)(1). See
generally, FERC, Reliability Primer 5–6 (2020). EPA
agreed to seek the Commission’s advice on a case-by-
14
case basis when considering extension requests, but
under MATS was not required to follow it. Id. at P 7.
The Commission issued a Policy Statement
explaining how it would share its views with EPA on
the reliability consequences of prohibiting an EGU
from operating because of MATS non-compliance. Id.
at P 1. Subsequently, the Commission found that it
would be necessary to allow several units not in
compliance with MATS to continue operations in
order to maintain reliability. See, e.g., Commission
Comments on Grand River Dam Authority’s Request
for EPA Administrative Order, 151 FERC ¶ 61,027, at
P 7 (2015); Commission Comments on Kansas City
Board of Public Utilities’ Request for EPA
Administrative Order, 149 FERC ¶ 61,138, P 7 (2014).
In each instance, EPA considered the Commission’s
guidance and enabled the EGU’s continued operation.
See, e.g., In the Matter of Grand River Dam Authority,
AED-CAA-113(a)-2016-0002 (EPA 2016); In the
Matter of Board of Public Utilities of the United
Government of Wyandotte/Kansas City, Kansas,
AED-CAA-113(a)-2016-0001 (EPA 2016).
The Commission’s experience with MATS
informed its collaboration with EPA to provide
technical feedback on the CPP. The Commission held
four technical conferences to study possible effects of
the CPP. See Carbon Pollution Emission Guidelines
for Existing Stationary Sources: Electric Utility
Generating Units, 80 Fed. Reg. 64,662, 64,673 (Oct.
23, 2015). EPA participated in all four conferences.
Id. at 64,707. Commission staff worked with EPA,
and senior EPA officials met with each member of the
Commission on more than one occasion. Id.; see also
Am. Lung Ass’n, 985 F.3d at 967 (noting that “EPA
developed the Clean Power Plan with input from
15
other agencies with relevant expertise,” including
FERC and DOE).
On May 15, 2015, the Commission sent a letter to
EPA signed by all five members. Letter from FERC
Chair Norman C. Bay and Commissioners Cheryl A.
LaFleur, Colette D. Honorable, Philip D. Moeller, and
Tony Clark, to EPA Acting Administrator Janet G.
McCabe, at 1 (May 15, 2015), https://www.ferc.gov/m
edia/ferc-letter-epapdf. The letter suggested “more
flexibility during the early years of compliance,” id.,
and offered to help EPA develop a reliability safety
valve and to work with EPA staff to provide reliability
monitoring and assistance, id. at 4. The Commission
recognized that “state authority to propose plans for
compliance with the federal Clean Air Act does not
depend on, or require, Commission approval.” Id. at
3. At no point did the Commission’s letter allege that
the CPP encroached upon its jurisdiction.
EPA reviewed the Commission’s comments and
responded by creating a reliability safety valve in the
final rule, delaying the start of the program from 2020
to 2022, enabling States to opt for “a more gradual
glide path” to compliance by 2030, and forming an
interagency group with the Commission and DOE to
coordinate reliability assurance efforts. 80 Fed. Reg.
at 64,671. In short, the record demonstrates the way
in which the Commission respected EPA’s authority
under the Clean Air Act, while leveraging the
Commission’s expertise to maintain grid reliability.
16
E. The Commission Has Ruled That It
Lacks
Jurisdiction
Over
the
Environmental
Attributes
of
Generation Not Directly Related to the
Wholesale Sale of Electricity in
Interstate Commerce
The Commission has avoided direct regulation of
the environmental aspects of electricity generation.
For instance, the Commission has disclaimed
authority over emissions allowances that are
unbundled from the wholesale sale of electricity in
interstate commerce. The Commission has reasoned
that “just as a sale or transfer of fuel supplies by a
public utility is not subject to direct Commission
review under section 205 when the sale or transfer
occurs independent of a sale of electric energy in
interstate commerce, . . . a sale or transfer of
emissions allowances does not constitute a sale of
electric energy for resale.” Edison Elec. Inst., 69
FERC ¶ 61,344, 1994 WL 701306, at *3 (1994).
Similarly, the Commission has disclaimed
authority over renewable energy credits because they
are state-created and state-issued instruments that
do “not constitute the transmission of electric energy
in interstate commerce or the sale of electric energy
at wholesale in interstate commerce.” WSPP Inc., 139
FERC ¶ 61,061, at P 21 (2012). The Commission
noted that an “unbundled REC transaction does not
affect wholesale electricity rates, and the charge for
the unbundled RECs is not a charge in connection
with a wholesale sale of electricity.” Id. at P 24.
Therefore, the Commission has not asserted
jurisdiction over the environmental attributes of
generation. This is precisely where EPA’s authority
lies.
17
II.The FPA Cannot Be Used to Shield States
from EPA’s Regulation of Pollution Under
the Clean Air Act
Just as EPA’s regulation of greenhouse gases or
any other air pollution under the Clean Air Act does
not intrude upon Commission authority, it does not
intrude upon that of the States. Under the FPA, the
Commission is charged with ensuring just and
reasonable rates. But in carrying out this obligation
“[t]he Commission . . . shall not have jurisdiction . . .
over facilities used for the generation of electric
energy.” 16 U.S.C. § 824(b)(1) (emphasis added). This
limit in the FPA on the Commission’s jurisdiction,
however, cannot be read to restrict other federal
agencies from acting under their own statutory
authorities. EPA’s mission under the Clean Air Act is
not the same as the Commission’s, and constraints on
the Commission’s authority over wholesale markets
are beside the point.
The CPP did not seek to regulate generation of
electricity or to direct policy choices about generation;
rather, it set emission limitations that took into
account the availability of cleaner generation
resources. See 80 Fed. Reg. at 64,707. In doing so,
the CPP tracked the cooperative federalism structure
of the Clean Air Act. EPA sets emission guidelines for
existing sources of pollution, based on its
determination of the best system of emission
reduction (BSER). 42 U.S.C. § 7411(d). States then
establish enforceable standards of performance on the
covered sources in their jurisdiction and determine
how sources will demonstrate compliance. Id. at
§ 7411(d)(1).
18
Whether the BSER can be based on generation
shifting is a question under the Clean Air Act, not the
FPA. However, the CPP afforded States broad
flexibility to implement programs that reflected local
needs and interests. States were not required to rely
solely on the generation shifting strategies
comprising the BSER “or even at all.” 80 Fed. Reg. at
64,723. If they wished, States could retain existing
coal units and invest in carbon capture and
sequestration—which Wyoming is doing even in the
absence of the CPP. See Steve Inskeep, Wyoming is
Among the States Spending Millions to Promote
Carbon
Capture,
NPR
(Sept.
7,
2021),
https://www.npr.org/2021/09/07/1034719342/wyomin
g-is-among-the-states-spending-millions-to-promotecarbon-capture. States could direct conversion of coal
units to fire natural gas. 80 Fed. Reg. at 64,756.
States could also craft trading approaches, through
which EGUs could purchase emission rate credits or
allowances and continue operating. See, e.g., id. at
64,836.
In any event, EPA was acting under its Clean Air
Act authority, not the Commission’s FPA authority.
The CPP’s aim and target was reducing carbon
emissions, not setting wholesale rates. And the plain
language of the FPA that limits the Commission’s
authority over States—i.e., the reservation for
generation—does not apply to EPA. Consistent with
previous Clean Air Act standards, the CPP would
certainly have influenced state regulators, utilities,
and merchant generators in their decisions to run,
retire, or change the operation of EGUs.
This is not prohibited under the FPA, and amici
who served as state utility regulators have ample
experience integrating federal and state air
19
regulations with the operation of generation in a
State. Moreover, “[i]nterstate air pollution is not an
area of traditional state regulation.” Am. Lung. Ass’n,
985 F.3d at 968. No State has the jurisdiction to
tackle a national or transnational problem. State
regulators are usually pragmatic about federal
pollution regulation. They recognize that “‘[a]ir
pollution is transient, heedless of state boundaries,’
particularly where the pollutants are greenhouse
bases, which have little if any localized effect but
great cumulative impact.” Id. at 969 (quoting EME
Homer City Generation, L.P., 572 U.S. at 496).
“[F]ederalism concerns do not bar the United
States government from addressing areas of federal
concern just because its actions have incidental
effects on areas of state power.” Id. (citing Elec. Power
Supply Ass’n, 577 U.S. at 279–86). When the Clean
Air Act prescribes a process for regulating emissions
from existing sources, state regulators engage in the
important work of making compliance plans to
establish, implement, and enforce standards of
performance. They appreciate that “States remain
equally free to choose the compliance measures that
best fit the needs of their State and industry.” Id. at
970. This is an example of cooperative federalism, not
the usurpation of state authority.
III.The Energy Transition is Profound and
Ongoing
This Court has noted that “[w]hile the Congresses
that drafted . . . [the Clean Air Act] might not have
appreciated the possibility that burning fossil fuels
could lead to global warming, they did understand
that without regulatory flexibility, changing
circumstances and scientific developments would
20
soon render the Clean Air Act obsolete.”
Massachusetts, 549 U.S. at 532 (discussing Clean Air
Act § 202(a)(1)).
Here, the circumstances are
changing in a profound way that underscores the need
for
“regulatory
flexibility”
consistent
with
congressional intent. Innovation, economic forces,
state and federal public policy, and consumer
preferences
are
already
driving
significant
decarbonization of the power sector.
The history of the CPP itself provides a dramatic
example of the change sweeping through the power
sector. In 2015, EPA proposed the CPP could achieve
a 32 percent reduction in national power sector
carbon emissions from 2005 levels by 2030. 80 Fed.
Reg. at 64,665. Two years later, in 2017, EPA’s
proposed repeal raised concerns that the CPP
“threaten[s] to impose massive costs on the power
sector and consumers” and harm the “national
interest in affordable, reliable electricity.” Repeal of
Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units,
82 Fed. Reg. 48,035, 48,038 (Oct 16, 2017). The CPP
was never implemented. Yet in the very year that
EPA proposed to repeal the CPP, carbon emissions
from the power sector fell 28 percent below 2005
levels, without any apparent harm to consumers,
reliability, or the public interest. See U.S. Energy
Info. Admin., Monthly Energy Review December
2021, at Table 11.6. What is more, by the end of 2019,
the United States had, at a national level, achieved
21
emissions reductions equal to those that the States
were projected to achieve under the CPP.2
Those reductions resulted from a rapidly changing
generation mix. When the CPP was issued in 2015,
U.S. electricity was approximately 33 percent natural
gas, 33 percent coal, 19 percent nuclear, 13 percent
renewable energy, and 1 percent petroleum. See
NREL, Electricity Generation Baseline Report, at ix
(2017). By 2020, the generation mix had shifted to 40
percent natural gas, 19 percent coal, 20 percent
nuclear, 20 percent renewable energy, and 1 percent
petroleum. See U.S. Energy Info. Admin., Electricity
Explained: Electricity Generation, Capacity, and
Sales in the United States (Mar. 18, 2021),
https://www.eia.gov/energyexplained/electricity/elec
tricity-in-the-us-generation-capacity-and-sales.php.
About 20 percent of U.S. coal capacity retired from
2015 to 2020. See Taylor Kuykendall et al., Slated
Retirements to Cut US Coal Fleet to Less Than Half
2015 Capacity by 2035, S&P Global (July 29, 2021),
https://www.spglobal.com/marketintelligence/en/new
s-insights/latest-news-headlines/slated-retirementsto-cut-us-coal-fleet-to-less-than-half-2015-capacityby-2035-65741012. By 2020, for the first time,
renewable capacity exceeded coal capacity on the grid.
FERC, Office of Energy Projects Infrastructure
Update for May 2019 (July 2019). The levelized cost
of on-shore wind and utility-scale solar resources has
2
Id. According to Table 11.6, the electric power sector
emitted 2416 million metric tons of carbon emissions in 2005,
1743 million metric tons in 2017, and 1620 million metric tons
in 2019. Thus, emissions fell 28 percent in 2017 and 33 percent
in 2019 from 2005 levels.
22
plummeted over the last decade, and they are cheaper
than coal and natural gas generation on an
unsubsidized basis. See Lazard, Lazard’s Levelized
Cost of Energy Analysis – Version 15.0, at 8 (Oct.
2021).
The Commission, the North American Electric
Reliability Corporation (NERC), regional grid
operators, and state public utility commissions have
managed this rapid energy transition while
maintaining reliable and affordable wholesale
electricity. In 2018, the Commission rejected a DOE
proposed rulemaking to subsidize coal and nuclear
plants, noting that “extensive comments submitted by
the
RTOs/ISOs
[Regional
Transmission
Organizations/Independent System Operators] do not
point to any past or planned generator retirements
that may be a threat to grid resilience.” See Order
Terminating Rulemaking Proceeding, Initiating New
Proceeding, and Establishing Additional Procedures,
162 FERC ¶ 61,102, at P 15 (2018). In its most recent
reliability assessment, NERC found that despite
challenges, including the pandemic, extreme weather,
cyber security, supply chain issues, and the grid’s
transformation, “the BPS [Bulk Power System]
continued to perform well since most metrics that are
within an operator’s control show a continual
improvement or remain stable.” See NERC, State of
Reliability 2021, at vii (Aug. 2021).
Regional Transmission Organizations and
Independent System Operators, which serve twothirds of U.S. load, see FERC, Energy Primer: A
Handbook of Energy Market Basics 39 (Apr. 2020),
have been able to reliably integrate ever higher
amounts of renewable energy. On April 24, 2021, the
California ISO set a record by serving 94.5 percent of
23
demand with renewable energy. See Sammy Roth,
California Just Hit 95% Renewable Energy. Will
Other States Come Along for the Ride?, LA Times
(Apr. 29, 2021), https://www.latimes.com/enviro
nment/newsletter/2021-04-29/solar-power-watercanals-california-climate-change-boiling-point. The
Southwest Power Pool set its own record, meeting
84.2 percent of demand with renewable energy on
March 29, 2021. See Tyler Stoff, How Southwest
Power Pool Sets Renewable Records Daily, ACORE
(Apr. 8, 2021), https://acore.org/how-southwestpower-pool-sets-renewable-records-daily/.
As the generation mix shifted from coal to natural
gas and renewables, wholesale electricity prices fell
“substantially” from 2008 to 2017. See Andrew D.
Mills et al., Lawrence Berkeley National Laboratory,
Impact of Wind, Solar, and other Factors on Wholesale
Power Prices 5 (2019). In 2020, average wholesale
electricity prices reached their lowest level since the
beginning of the twenty-first century. Joachim Seel
et al., Plentiful Electricity Turns Wholesale Prices
Negative, Advances in Applied Energy 4 (2021). The
shale gas boom, the addition of low-marginal-cost
renewables, average efficiency heat rate gains of
thermal plants, and modest demand growth have all
contributed to the low prices. Id.
State policies have played a strong role in the
ongoing decarbonization of the power industry, as
have the economics of low natural gas prices and
renewable energy. Federal air pollution regulation
dovetails with these policies and market trends.
Thirty-eight States and the District of Columbia have
Renewable Portfolio Standards or Renewable
Portfolio Goals. See U.S. Energy Info. Admin.,
Renewable Energy Explained: Portfolio Standards
24
(June 29, 2021), https://www.eia.gov/energyexplaine
d/renewable-sources/portfolio-standards.php. Twelve
States and the District of Columbia will require 100
percent clean energy by mid-century. Id. An
increasing number of electric utilities have also
announced plans to provide 100 percent clean energy
or zero carbon emissions by mid-century. See Jeff St.
John, The 5 Biggest US Utilities Committing to Zero
Carbon Emissions by 2050, Greentech Media (Sept.
16, 2020), https://www.greentechmedia.com/artic
les/read/the-5-biggest-u.s-utilities-committing-tozero-carbon-emissions-by-mid-century.
At the federal level, the production tax credit and
investment tax credit have incentivized the
development of renewable resources and promoted
generation shifting. Moreover, the Commission has
long supported the development of competition in
wholesale markets and efficient price formation. As
demand response, energy storage, and distributed
energy resources have developed, the Commission
has removed barriers to their participation in
wholesale markets.
See Demand Response
Compensation in Organized Wholesale Energy
Markets, Order No. 745, 134 FERC ¶ 61,187, order on
reh’g and clarification, Order No. 745-A, 137 FERC
¶61,215 (2011), reh’g denied, Order No. 745-B, 138
FERC ¶61,148 (2012), vacated sub nom. Elec. Power
Supply Ass’n v. FERC, 753 F.3d 216 (D.C. Cir. 2014),
rev’d & remanded sub nom. FERC v. Elec. Power
Supply Ass’n, 577 U.S. 260 (2016); Electric Storage
Participation in Markets Operated by Regional
Transmission Organizations and Independent System
Operators, Order No. 841, 162 FERC ¶ 61,127 (2018),
order on reh’g, Order No. 841-A, 167 FERC ¶61,154
(2019), aff'd sub nom. Nat’l Ass’n of Regulatory Util.
25
Comm’rs v. FERC, 964 F.3d 1177 (D.C. Cir. 2020);
Participation of Distributed Energy Resource
Aggregations in Markets Operated by Regional
Transmission Organizations and Independent System
Operators, Order No. 2222, 85 Fed. Reg. 67,094 (Oct.
21, 2020), 172 FERC ¶ 61,247 (2020), corrected, 85
Fed. Reg. 68,450 (Oct. 29, 2020), order on reh’g, Order
No. 2222-A, 174 FERC ¶61,197 (2021).
All of this highlights the fact that the power sector is
in the midst of a rapid and profound transformation.
The power of innovation, economic forces, public
policy, and consumer preference is driving the
transformation. Neither the CPP nor the ACE Rule
is in effect, and EPA has not issued a replacement
plan. The power sector today is far different than the
one EPA examined in 2015, which undermines the
necessity or relevance of reviewing a rule that has
been vacated and not yet been replaced. This Court
should preserve the “regulatory flexibility” that
Congress intended EPA to have to address “changing
circumstances
and
scientific
developments.”
Massachusetts, 549 U.S. at 532.
26
CONCLUSION
For the foregoing reasons, the decision below
should be affirmed.
Respectfully submitted,
STEPHEN E. ROADY
Counsel of Record
EMMA C. WELLBAUM
DUKE UNIVERSITY SCHOOL OF LAW
210 Science Drive
Box 90360
Durham NC 27708
(202) 257-9114
steve.roady@duke.edu
Counsel for Amici Curiae
January 25, 2022
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