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

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

In the Supreme Court of the United States

__________________

WEST VIRGINIA, ET AL.

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_____________

THE NORTH AMERICAN COAL CORPORATION

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_____________

WESTMORELAND MINING HOLDINGS LLC

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_____________

NORTH DAKOTA

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_____________

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

_____________

BRIEF OF AMICI CURIAE THE EDISON

ELECTRIC INSTITUTE AND THE NATIONAL

ASSOCIATION OF CLEAN WATER AGENCIES IN

SUPPORT OF RESPONDENTS

__________________

THOMAS A. LORENZEN

Counsel of Record

ELIZABETH B. DAWSON

LYNN PHAN

SIYI SHEN

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004

(202) 624-2500

tlorenzen@crowell.com

(Additional Counsel listed on signature pages)

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT.................................... 5

ARGUMENT .............................................................. 8

I.

II.

IN AMERICAN ELECTRIC POWER

THIS COURT CORRECTLY

ARTICULATED THE DISPLACING

EFFECT OF THE CLEAN AIR ACT

ON FEDERAL COMMON LAW

CLAIMS RELATING TO

GREENHOUSE GAS EMISSIONS. ............... 9

A.

AEP Demonstrates That the

Nation’s Climate Policy Should

Not Be Dictated by Tort-based

Injunction. ........................................... 10

B.

The Court in AEP Reaffirmed

EPA’s Authority to Regulate

GHGs under the Act and Found

That It Displaced Federal

Common Law Remedies. .................... 12

C.

This Court Concluded in

Massachusetts That a

Commonsense Reading of the Act

Authorizes EPA to Regulate

GHGs. .................................................. 16

THE COURT SHOULD RESOLVE

QUESTIONS REGARDING EPA’S

AUTHORITY UNDER §7411(D)

UTILIZING TRADITIONAL TOOLS

OF STATUTORY CONSTRUCTION. .......... 19

ii

A.

Because the Act Provides

Sufficient Direction for EPA to

Follow in Regulating GHGs, the

Nondelegation Doctrine Does Not

Apply. .................................................. 20

B.

The Major Questions Doctrine

May Constrain, but Does Not

Void, EPA’s Authority Under the

Ambiguous Language of Section

7411(d)................................................. 24

CONCLUSION ......................................................... 33

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ........................................... 22

American Elec. Power Co., Inc. v.

Connecticut,

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

Biden v. Missouri,

No. 21A240, 2022 WL 120950 (U.S. Jan.

13, 2022) (per curiam) .......................... 27, 28, 33

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) (Chevron)................... passim

City of Milwaukee v. Illinois and Michigan,

451 U.S. 304 (1981) ............................................. 4

Coalition for Responsible Regulation v.

EPA,

684 F.3d 102 (D.C. Cir. 2012) ........................... 23

Connecticut v. American Elec. Power Co.,

Inc.,

406 F. Supp. 2d 265 (S.D.N.Y. 2005) ......... 11, 12

Gundy v. United States,

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

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

276 U.S. 394 (1928) ........................................... 22

iv

King v. Burwell,

576 U.S. 473 (2015) ....................................... 6, 27

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ........................................... 21

Massachusetts v. EPA,

549 U.S. 497 (2007) .................................... passim

Mistretta v. United States,

488 U.S. 361 (1989) ..................................... 21, 22

Nat’l Broadcasting Co. v. United States,

319 U.S. 190 (1943) ........................................... 22

National Federation of Independent

Business v. Department of Labor (NFIB),

No. 21A244, 2022 WL 120952 (U.S. Jan.

13, 2022) (per curiam) ...................................... 27

New England Legal Found. v. Costle,

666 F.2d 30 (2d Cir. 1981) ................................ 12

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ........................................... 22

United States v. Five Gambling Devices,

346 U.S. 441 (1953) ........................................... 19

United States v. Rumely,

345 U.S. 41 (1953) ............................................. 19

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .................................... passim

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) ........................................... 23

v

Statutes

33 U.S.C. §§1251-1387 ............................................. 4

42 U.S.C. §§7401-7671q ........................................... 1

42 U.S.C. §7411 .......................................6, 27, 32, 33

42 U.S.C. §7411(a).................................................. 32

42 U.S.C. §7411(a)(1) ............................................. 24

42 U.S.C. §7411(b)(1)(A)) ....................................... 13

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

42 U.S.C. §7475(a)(1) ............................................. 29

42 U.S.C. §7475(a)(4) ....................................... 29, 31

42 U.S.C. §7479(1).................................................. 29

42 U.S.C. §7479(2)(C) ............................................. 29

42 U.S.C. §7602(g) .................................................. 17

42 U.S.C. §7602(h) ................................................. 17

42 U.S.C. §7602(j)................................................... 29

42 U.S.C. §7661(2)(B) ............................................. 29

42 U.S.C. §7661a(a) ................................................ 29

Other Authorities

74 Fed. Reg. 66,496 (Dec. 15, 2009) ....................... 18

75 Fed. Reg. 25,324 (May 7, 2010) ........................ 18

vi

75 Fed. Reg. 31,514 (June 3, 2010)........................ 18

80 Fed. Reg. 64,661 (October 23, 2015) ................... 2

Energy Information Admin. (EIA), Monthly

Energy Review (Mar. 2021) ................................ 3

EIA, Nearly Half of Utility-Scale Capacity

Installed in 2017 Came from Renewables

(Jan. 10, 2018)..................................................... 3

EIA, Electric Power Monthly (Feb. 2021) ................ 2

Stanley Reed and Claire Moses, “A Dutch

court rules that Shell must step up its

climate change efforts,” The New York

Times (May 26, 2021) ....................................... 16

1

INTERESTS OF AMICI CURIAE1

The Edison Electric Institute (EEI) and the

National Association of Clean Water Agencies

(NACWA) (collectively, Amici) submit this brief

because certain legal theories advanced in this case,

if adopted by the Court, could fatally undermine the

Clean Air Act’s2 displacement of federal common law

tort actions against electricity providers, clean water

utilities, and other greenhouse gas (GHG) emitters,3

with potentially dire consequences for the reliability

of the Nation’s electricity and water supplies. That

displacement rests on the authority of the

Environmental Protection Agency (EPA) to regulate

GHG emissions under the Clean Air Act.4 Absent

that authority, “regulation” of electricity generation

to control such emissions could occur via injunction

and at the whim of the plaintiffs’ bar, without regard

to costs, technological feasibility, or effects on the

Nation’s electricity and water supplies.

EEI is the national association of all U.S.

investor-owned electric companies—the largest

entities regulated by the EPA rules under review.

EEI members provide electricity and related services

1 No part of this brief was authored by counsel for any party,

and no person or entity has made any monetary contribution to

the preparation or submission of the brief other than amici

curiae and their counsel. All parties have consented to the

filing of this brief.

2 42 U.S.C. §§7401-7671q (CAA or Act). All statutory references

in this brief are to Title 42 of the U.S. Code, unless otherwise

specified.

3 See American Elec. Power Co., Inc. v. Connecticut, 564 U.S.

410 (2011) (AEP).

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

2

for about 220 million Americans and operate in all

50 States and the District of Columbia.

EEI members are leading a clean energy

transformation, united in their commitment to

provide reliable and affordable low- and zeroemission energy expeditiously. EEI members have

undertaken a wide range of initiatives over the last

30 years to avoid, reduce, or sequester GHG

emissions, with impressive results. More than four

dozen EEI members have announced carbon

reduction goals; over half of these intend to achieve

net-zero carbon dioxide (CO2) emissions by 2050.

Indeed, EEI members had already achieved more

GHG reductions than the Obama administration’s

Clean Power Plan5 would have required before it was

scheduled to take effect.

In addition, the mix of resources used to

generate electricity in the United States has shifted

dramatically over the last decade and is increasingly

low-carbon. In 2016, natural gas surpassed coal as

the main source of electricity generation in the

United States, and in 2020 natural gas-based

generation powered 40 percent of the country’s

electricity, compared to just 19 percent coal-based

generation.6 In 2017, more than half of the industry’s

5 Carbon Pollution Emission Guidelines for Existing Stationary

Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661

(October 23, 2015) (CPP).

6 See Energy Information Admin. (EIA), Electric Power Monthly

(Feb. 2021),

https://www.eia.gov/electricity/monthly/archive/february2021.p

df. According to data in the same EIA report, in 2020, U.S.

annual electricity generation from renewable sources exceeded

Continued on next page…

3

investments in new electricity generation were in

wind and solar,7 and the pace has continued such

that by 2020, 40 percent of America’s electricity was

generated from carbon-free resources, including

nuclear, hydropower, solar, and wind.8 As a result,

CO2 emissions in 2020 from the entire power sector

were down 40% from 2005 levels—a 40-year low.9

Emission reductions from current technologies are

expected to continue, even as new technologies

emerge. The potential for resurrection of tort-based

injunctive relief to limit GHG emissions could upset

these salutary trends.

NACWA is a nonprofit trade association

representing nearly 350 municipal clean water

agencies throughout the U.S. that own, operate, and

manage

publicly

owned

treatment

works,

wastewater and stormwater collection and treatment

systems, and water reclamation districts.

Clean water utilities emit GHGs as a result of

various

wastewater

treatment

processes.

Wastewater treatment facilities are also often the

largest users of electricity in their communities. A

decision from the Court opening power or clean

water utilities to federal tort litigation, whether

successful or not, would divert precious public funds

coal-based generation, the first time that has occurred on an

annual basis.

7 See EIA, Nearly Half of Utility-Scale Capacity Installed in

2017 Came from Renewables (Jan. 10, 2018),

https://www.eia.gov/todayinenergy/detail.php?id=34472.

8 See EIA, n.6, supra.

9 EIA, Monthly Energy Review (Mar. 2021),

https://www.eia.gov/totalenergy/data/monthly/archive/0035210

3.pdf.

4

from critical public-health infrastructure projects

and increase costs to the consumers that can least

afford to bear them.

Petitioners and some amici seek to curtail EPA’s

authority to regulate GHG emissions under CAA

§7411(d), whether through application of statutory

interpretation doctrines or constitutional principles.

Such a ruling could not only revive federal common

law suits currently displaced by the CAA, but also

those displaced by numerous other statutes,

including the federal Clean Water Act.10 The

outcome here is therefore of critical importance to

the Nation’s power system and municipal clean

water providers, and therefore to Amici’s members.

While it may seem counterintuitive that the Nation’s

investor-owned electric companies, in particular,

should favor EPA regulatory authority, the

alternative could be the chaotic world of regulation

by injunctive fiat. In short, Amici and their members

seek to ensure that the Nation’s emissions-reduction

policies minimize impacts on consumers and avoid

harm to U.S. industry and the economy. The surest

path there is affirming EPA’s authority to regulate

GHG emissions under the Act, consistent with the

Act’s text and congressional intent.

10 Federal Water Pollution Control Act, 33 U.S.C. §§1251-1387

(CWA); see City of Milwaukee v. Illinois and Michigan, 451 U.S.

304, 332 (1981).

5

SUMMARY OF ARGUMENT

For the fourth time since 2007, this Court is

asked to adjudicate one of the most important

environmental matters of our time: the scope of the

federal government’s authority to regulate GHG

emissions under the Clean Air Act. While this case

has potentially profound implications for the Nation

as it addresses climate change, of particular concern

to Amici are the implications this case could have for

the Court’s 2011 ruling in AEP that EPA’s authority

to regulate GHG emissions under the Act displaces

federal common law tort claims against GHG

emitters.

Fundamentally, AEP embodies this Court’s

conclusion that Congress preferred the Act’s

nationwide regulatory scheme—guided by EPA and

the States acting cooperatively—over a regime

controlling GHG emissions through myriad federal

tort claims for injunctive relief against individual

GHG emitters. Yet certain outcomes in this case—

such as one stripping EPA of authority to regulate

GHG emissions under the guise of the constitutional

nondelegation doctrine, or one that revisits and

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

as a way of avoiding that constitutional question—

could fatally undermine the Act’s displacement of

such lawsuits. This in turn could lead to a deluge of

tort litigation against GHG emitters, which if

successful could effectively shift GHG regulation

from a sensible and consistent nationwide regime

governed by EPA and the States pursuant to a

statutory scheme Congress designed, to a chaotic

system dictated by the interests of individual

plaintiffs, untethered from all consideration of

6

commonsense statutory factors like technological

feasibility, cost, and reliability of supply.

The Court can and should resolve this case

using traditional statutory construction tools—

including through a reasoned and careful application

of either the two-step statutory construction doctrine

established in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984)

(Chevron), or the major questions doctrine, see King

v. Burwell, 576 U.S. 473 (2015). The Court can

appropriately delineate EPA’s authority to regulate

GHGs under the Act with these tools, without

stripping EPA of its authority. Amici respectfully

urge the Court to reach first to these doctrines of

statutory construction to resolve this case, lest it

undermine the foundations of AEP displacement and

result in a raft of climate-related tort litigation

against the Nation’s providers of electricity and

clean water.

I.

The displacement of federal common law

provided by EPA’s regulatory authority is important

to the reliability of our Nation’s electricity and clean

water supply. In AEP, private and state litigants

sued individual private electric companies in tort,

seeking to compel emission reductions through

injunctive relief, regardless of cost, feasibility, or

effects on the affordability or reliability of the

Nation’s electricity supply. But this Court, relying

upon prior precedent and specifically noting thenpending EPA rulemaking action under §7411,

concluded that the Act displaces federal common law

tort suits against GHG emitters in favor of a unified

federal regulatory scheme. Central to this ruling was

the Court’s decision just four years earlier in

Massachusetts that EPA has the authority and, if it

7

finds endangerment to public health or welfare from

GHG emissions, a duty under the CAA to regulate

GHGs as pollutants.

Regulated entities have come to rely on EPA’s

authority to establish a predictable, level playing

field in which control of GHG emissions is based on

consideration of statutory factors such as

technological feasibility, cost, and reliability. Any

undermining of AEP could subject the power

industry, and public utilities more generally, to a

multiplicity of tort suits, allowing myriad litigants,

instead of Congress, EPA, and the States, to attempt

to dictate through all manner of injunctive relief the

level of GHG-emission reductions that each

stationary source must achieve. This would be chaos.

Amici urge the Court to avoid any ruling that could

lead to such an outcome.

II.

Certain petitioners raise concerns regarding

the constitutional implications of an expansive view

of EPA’s authority under §7411(d) and accordingly

urge the Court to constrain EPA’s authority in some

manner. Numerous amici go farther, urging the

Court to rule, either by invocation of the

nondelegation doctrine or by taking up issues not

presented by the petitioners at all, that EPA lacks

any authority whatsoever under the CAA to regulate

the emission of GHGs from fossil fuel-fired electric

generating units, or from stationary or mobile

sources generally.

Amici urge the Court to give due consideration

to the adverse consequences of adopting these legal

theories. Invocation of the nondelegation doctrine to

strip EPA of regulatory authority that this Court

previously recognized could resurrect the tort

8

lawsuits rejected in AEP, which could create a

patchwork of inconsistent GHG emission decisions

across the Nation. Revisiting Massachusetts under

principles of constitutional avoidance could yield a

similar result, as could certain (but not all)

applications of the major questions doctrine.

But the Court need not go there. It should

instead resolve this case—preserving, even if

potentially limiting, EPA’s regulatory authority

under §7411(d)—through the application of

traditional statutory construction tools. In this way,

the Court can both clearly delineate EPA’s authority

under the Act and protect the Nation’s supply of

reliable electricity from the countless climate-related

tort lawsuits that could, through inconsistent or illconsidered injunctive relief, otherwise disrupt it.

ARGUMENT

Below, we recount the threat to this Nation’s

electricity supply that was posed by federal common

law tort suits against GHG emitters, and how this

Court concluded in AEP that Congress displaced

such relief by authorizing EPA to regulate air

pollutants, including GHGs. Then, we briefly discuss

the traditional statutory construction tools available

to the Court to ensure EPA acts within the bounds

Congress intended, without invoking constitutional

doctrines that could spell the end of such

displacement.

9

I. IN AMERICAN ELECTRIC POWER THIS

COURT CORRECTLY ARTICULATED THE

DISPLACING EFFECT OF THE CLEAN AIR

ACT ON FEDERAL COMMON LAW CLAIMS

RELATING

TO

GREENHOUSE

GAS

EMISSIONS.

In the lawsuits leading up to AEP, private

litigants and States sought to enjoin certain power

providers to reduce their CO2 emissions, generally

through curtailment or shuttering of operations,

without regard for the broader consequences on

industry or the American populace. This Court

correctly recognized that through the Clean Air Act

Congress displaced such claims, providing a

structure for EPA to regulate power plant emissions

after considering such factors as cost, achievability,

energy requirements, and other environmental

impacts.

While no party or amicus has expressly

advocated that this Court overturn AEP or

Massachusetts, the invitation to do so is apparent.

This Court has expressly taken up the question of

the constitutional nondelegation doctrine, the

application of which could nominally leave

Massachusetts in place, but nonetheless strip EPA of

all meaningful regulatory authority over GHG

emissions under the theory that only Congress can

issue such regulatory commands. One amicus takes

Massachusetts on more directly, arguing that when

Congress passed the Act, it was not concerned with

the potential impact of air pollutants on climate.11 It

11 Brief of Amicus Curiae Competitive Enterprise Institute in

Support of Petitioners 3-4.

10

is hard to read this as anything other than an

assault on Massachusetts, in which this Court

stated:

While the Congresses that drafted

§202(a)(1) 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 soon render

the Clean Air Act obsolete. The broad

language of § 202(a)(1) reflects an

intentional effort to confer the flexibility

necessary to forestall such obsolescence.

549 U.S. at 532. The Court may be tempted to accept

some or all of these invitations in an effort to restore

what it views as the intended balance of powers

between the federal Executive and Legislative

Branches. But the Court should understand the

potential costs of treading this path: stripping EPA

of its regulatory authority over GHGs would also

undermine the foundation of AEP and potentially

resuscitate the threat of federal common law causes

of action, including injunctive relief, against Amici’s

members, who are responsible for providing the

Nation a reliable supply of electricity and access to

clean water.

A. AEP Demonstrates That the Nation’s

Climate Policy Should Not Be Dictated

by Tort-based Injunction.

1. In 2004, eight States, New York City, and

three land trusts separately sued five electric power

companies that owned and operated fossil fuel-fired

power plants in twenty states, alleging that their

11

“carbon-dioxide emissions created a substantial and

unreasonable interference with public rights, in

violation of the federal common law of interstate

nuisance, or, in the alternative, of state tort law.”

AEP, 564 U.S. at 418 (internal quotation marks

omitted).

The plaintiffs sought injunctive relief, including

an order … enjoining each of the

Defendants to abate its contribution to the

nuisance by capping its emissions of

carbon dioxide and then reducing those

emissions by a specified percentage each

year for a least a decade.

Connecticut v. American Elec. Power Co., Inc., 406 F.

Supp. 2d 265, 270 (S.D.N.Y. 2005) (cleaned up,

emphasis added). The district court noted this would

require it to:

(1) determine the appropriate level at

which to cap the carbon dioxide emissions

of these Defendants; (2) determine the

appropriate percentage reduction to

impose upon Defendants; (3) create a

schedule to implement those reductions; (4)

determine and balance the implications of

such relief on the United States’ ongoing

negotiations with other nations concerning

global climate change; (5) assess and

measure available alternative energy

resources; and (6) determine and balance

the implications of such relief on the

United States’ energy sufficiency and thus

its national security….

Id. at 272. In ruling that this raised nonjusticiable

political questions, the court acknowledged that

12

“‘Congress has vested administrative authority’ over

the ‘technically complex area of environmental law’”

in EPA, which “ha[d] been grappling with the proper

approach to the issue of global climate change for

years.” Id. at 273 (quoting New England Legal

Found. v. Costle, 666 F.2d 30, 33 (2d Cir. 1981)).

2. Putting aside the district court’s reticence

to undertake this inherently political task, in 2005

injunctive relief of this sort would simply have been

unachievable for the defendants, except through

curtailment of operations or shuttering of plants.

The technology required to implement plaintiffs’

desired remedy was unavailable at the scale

required. Moreover, injunctive relief would have

taken no account of existing regulatory and other

requirements imposed by federal and state

governments and public utility commissions. Nor

would injunctive relief have accounted for the effects

of hasty, drastic carbon-emission reductions on the

reliability and affordability of electricity. In AEP,

this Court recognized the problematic nature of tort

remedies, particularly injunctive relief, in this

context.

B. The Court in AEP Reaffirmed EPA’s

Authority to Regulate GHGs under the

Act and Found That It Displaced Federal

Common Law Remedies.

1. After the federal district court dismissed

based on the political question doctrine and the

Second Circuit reversed, this Court took up, inter

alia, whether the Clean Air Act displaces federal

common law nuisance actions seeking to force GHG

13

emitters to abate their emissions.12 In a resounding

8–0 ruling, the Court answered “yes.”

To determine “whether congressional legislation

excludes the declaration of federal common law is

simply” to ask “whether the statute speaks directly

to the question at issue.” Id. at 423-24 (cleaned up).

The Court recalled it had previously answered that

very question: “Massachusetts made plain that

emissions of carbon dioxide qualify as air pollution

subject to regulation under the [Clean Air Act],” and

thus the Act “‘speaks directly’ to emissions of carbon

dioxide from the defendants’ plants.” Id. at 424. And

once EPA identifies “categories of stationary sources

that, ‘in [the Administrator’s] judgment,’ ‘caus[e], or

contribut[e] significantly to, air pollution which may

reasonably be anticipated to endanger public health

or welfare,’” ibid. (quoting §7411(b)(1)(A)), EPA must

regulate existing sources within that category, ibid.

(citing §7411(d)). Moreover, because the Act

“provides multiple avenues for enforcement” and

allows States and private parties to petition for

rulemaking if EPA does not act, the Act “provides a

means to seek limits on emissions of carbon dioxide

from domestic powerplants—the same relief the

plaintiffs seek by invoking federal common law.” Id.

at 425. The Court found “no room for a parallel

track” in federal common law. Ibid.

Critically for the present case, the Court also

credited

the

Act’s

“prescribed

order

of

12 Because the Second Circuit had reached only the question of

displacement of federal common law, this Court had no

occasion to pass upon the question of state law preemption. Id.

at 429.

14

decisionmaking”—first “the expert administrative

agency, [] second, federal judges”—as “yet another

reason to resist setting emissions standards by

judicial decree under federal tort law.” Id. at 427.

The Court concluded that “[t]he appropriate amount

of regulation in any particular greenhouse gasproducing sector” requires “informed assessment of

competing interests.” Ibid. Congress “entrust[ed]

such complex balancing to EPA in the first instance,

in combination with state regulators.” Ibid. EPA, as

the expert agency, is simply better equipped to do

that job than are federal judges who “lack the

scientific, economic, and technological resources an

agency can utilize in coping with issues of this

order.” Id. at 428. The alternative—federal judges

determining “what amount of carbon-dioxide

emissions is ‘unreasonable’” and “what level of

reduction is ‘practical, feasible and economically

viable,’” sometimes on a plant-by-plant basis—

simply

“cannot

be

reconciled

with

the

decisionmaking scheme Congress enacted.” Id. at

428-29.

Ultimately, the Court considered as the “critical

point” in its displacement conclusion the fact “that

Congress delegated to EPA the decision whether and

how to regulate carbon-dioxide emissions from

powerplants.” Id. at 426 (citation omitted, emphasis

added).

2. The tort-based remedy the AEP plaintiffs

sought to impose on a handful of defendants—

injunctions uninformed by considerations of

feasibility, costs, or energy impacts—stands in sharp

contrast to the thoughtful regulatory structure

§7411(d) applies to existing sources nationwide.

Section 7411(d) requires EPA to identify the “best

15

system of emission reduction” for sources in a

category, after “taking into account the cost of

achieving such reduction and any nonair quality

health and environmental impact and energy

requirements.” Using this “BSER,” States develop

standards of performance for each existing source

within their borders, after considering a source’s

“remaining useful life” and other relevant factors.

EPA and the States must support their decisions

with facts and analysis, and the public—from

regulated entities to individual citizens—may

comment during the process. To be sure, emission

reductions achieved this way may take longer than

the AEP plaintiffs would have preferred. But that

reasoned process is far preferable to a system under

which individual plaintiffs attempt to commandeer

the country’s climate policy through ad hoc tort

litigation and inconsistent injunctive relief.

In addition to recognizing Congress’s intended

regulatory framework, AEP also serves as a crucial

bulwark against piecemeal, time- and resourceconsuming litigation, regardless of the outcome. See

AEP, 564 U.S. at 428-29 (recognizing the potential

for “similar suits” to be “mounted … against

thousands … of other defendants” (cleaned up)). As

the Court accurately observed, federal and state

regulatory bodies with relevant expertise are better

equipped to evaluate the propriety of emission

limitations and technological requirements, and to

balance the policy issues inherent in such regulation,

than are federal judges acting in response to

individual tort suits.

Yet “regulation” of GHG emissions could return

to this insensible tort-based regime if the Court

strips EPA of its authority to regulate GHGs under

16

§7411(d) under certain theories advanced in this

case. This fear is not theoretical. To the contrary, it

is playing out in real time elsewhere, where the

courts have found no barrier to suits against

individual GHG emitters.13

No one in this case has openly suggested that a

return to such a regime makes sense. Yet some of

the legal theories advanced by petitioners and amici

lead inescapably to that result. The Court thus

should take care, when evaluating the arguments

before it, not to issue a decision expressly or

implicitly undermining its wise ruling in AEP that

Congress displaced federal common law tort suits

against GHG emitters by vesting regulatory

authority over such pollutants with EPA.

C. This Court Concluded in Massachusetts

That a Commonsense Reading of the Act

Authorizes EPA to Regulate GHGs.

Crucial to the Court’s ruling in AEP was its

decision four years earlier in Massachusetts that

GHGs are “air pollutants” within the Act’s broad,

general definition and that EPA must regulate their

emissions if it finds that those emissions are

reasonably likely to endanger public health or

welfare. 549 U.S. at 529. In reaching that result, the

Court simply looked to the statute’s plain text, which

remains unchanged.

13 See Stanley Reed and Claire Moses, “A Dutch court rules that

Shell must step up its climate change efforts,” The New York

Times (May 26, 2021),

https://www.nytimes.com/2021/05/26/business/royal-dutchshell-climate-change.html.

17

At issue in Massachusetts was EPA’s denial of a

petition for rulemaking asking the agency to

regulate GHG emissions from new motor vehicles

under §7521. Id. at 510. Section 7521 provides that

EPA “shall by regulation prescribe … standards

applicable to the emission of any air pollutant from

any … new motor vehicles … which in [the EPA

Administrator’s] judgment cause, or contribute to,

air pollution which may reasonably be anticipated to

endanger public health or welfare.” EPA based its

denial in part on the determination that it lacked

regulatory authority to regulate GHG emissions

from new motor vehicles because GHGs do not

qualify as “air pollutant[s]” under the Act. 549 U.S.

at 528.

The Court rejected this view, holding that GHGs

are unambiguously “air pollutant[s]” within the

meaning of the Act. Id. at 529. It reasoned that

GHGs are “without a doubt” physical and chemical

substances emitted into the ambient air and

therefore squarely within the Act’s “sweeping

definition of ‘air pollutant.’” Id. at 528 (quoting

§7602(g)). As to the clause of §7521(a)(1) concerning

the required endangerment finding, the Court noted

that the Act defines “welfare” to include pollutants’

“effects on … weather … and climate.” Id. at 506

(quoting §7602(h)). Accordingly, the Court held that

the Act requires EPA to regulate GHGs if the agency

finds they contribute to climate change or otherwise

endanger public health and welfare. Id. at 529.

Massachusetts answered only the narrow

questions of whether EPA has authority and a duty

to regulate GHGs under the CAA; it did not opine on

how EPA may regulate GHGs, or under which

18

specific provisions. The Court also declined to reach

the question of whether on remand EPA must make

an endangerment finding, leaving that question to

the agency’s exercise of its expertise. Id. at 534.

EPA ultimately did make such a finding,14 which

led, in turn, to the promulgation of regulations

addressing GHG emissions from mobile sources, e.g.,

75 Fed. Reg. 25,324 (May 7, 2010), and stationary

sources, e.g., 75 Fed. Reg. 31,514 (June 3, 2010).

EPA’s attempt to regulate stationary sources would

eventually become the subject of another case before

this Court. See infra §II.B.

Taken together, the Court’s reading of the plain

text of the Act as both encompassing EPA’s authority

to regulate GHGs and displacing other federal

remedies related to GHG emissions have provided a

sometimes contentious but nonetheless workable

scheme that protects industry from arbitrary, ad hoc

attempts at emission control through injunction

while ensuring some measure of predictability and

uniformity. A decision voiding that authority could

upend that predictability and uniformity and

potentially subject individual GHG emitters to the

idiosyncratic whims of individual district court

judges.

See Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air Act,

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

14

19

II. THE

COURT

SHOULD

RESOLVE

QUESTIONS

REGARDING

EPA’S

AUTHORITY UNDER §7411(D) UTILIZING

TRADITIONAL TOOLS OF STATUTORY

CONSTRUCTION.

Principles of constitutional avoidance command

that the Court exhaust its traditional tools of

statutory construction and interpretation before

reaching constitutional questions such as application

of the nondelegation doctrine.15 Here, the Court can

readily resolve the instant case utilizing those

traditional tools, both clarifying and, as appropriate,

constraining EPA’s authority within the bounds of

the statute, while preserving that authority in line

with Congress’s displacement of the federal common

law nuisance suits that otherwise would rush to fill

the regulatory void.

EEI, as the representative of the bulk of the

electric power sector—the source category governed

by the rules under review—along with NACWA,

urge the Court to proceed with caution in

entertaining application of the nondelegation or

major questions doctrines in ways that could strip

Indeed, as far back as seventy years ago this Court

characterized as “old and deeply imbedded in our

jurisprudence” the fundamental principle “that this Court will

construe a statute in a manner that requires decision of serious

constitutional questions only if the statutory language leaves no

reasonable alternative.” United States v. Five Gambling

Devices, 346 U.S. 441, 448-49 (1953) (emphasis added; citation

omitted); see also United States v. Rumely, 345 U.S. 41, 45

(1953) (same and citing cases).

15

20

EPA of all authority to regulate GHGs under

§7411(d) or otherwise call into question this Court’s

holdings in Massachusetts and AEP. Employing the

nondelegation doctrine to conclude that the Act

unconstitutionally delegates lawmaking authority to

EPA would effectively defenestrate EPA in the area

of

climate

change

regulation,

overturning

Massachusetts and AEP in effect, even if not in

name. Invoking the major questions doctrine, or at

least the broader formulations of it put forward here,

could have the same effect.

The better course is to apply traditional

statutory construction tools to conclude that EPA

has some authority to regulate sources of GHGs

under §7411(d), even if the contours of that authority

are subject to reasonable interpretation. To be sure,

EPA has no “roving license to ignore the statutory

text.” Massachusetts, 549 U.S. at 533. But Congress

did give the agency some room to maneuver to

address new pollutants, such as GHGs, as their

threats to public health and welfare became known,

and it did not violate the Constitution in doing so.

A. Because the Act Provides Sufficient

Direction for EPA to Follow in

Regulating GHGs, the Nondelegation

Doctrine Does Not Apply.

Since the mid-1930s, the Court has upheld

every federal statute that has been challenged on

nondelegation doctrine grounds, and it should do so

again in this case—presuming the Court even takes

up the issue, which as we explain it need not.

Applying the nondelegation doctrine here to strip

EPA of all authority to regulate GHGs could subject

the power industry and clean water utilities to

21

federal common law nuisance and other tort suits

based on their GHG emissions. Invalidating §7411(d)

on nondelegation doctrine grounds could have even

farther-reaching consequences, not only under the

Clean Air Act, but under numerous other statutes

instructing Executive Branch agencies to administer

and execute policies Congress enacts. Such a ruling

could lead to a deluge of federal common law tort

litigation on a wide range of environmental and

other issues previously displaced by the existence of

a federal regulatory scheme. Amici urge the Court to

avoid deciding this case on theories that could lead

to such a result.

1. The nondelegation doctrine is rooted in the

Constitution’s separation-of-powers principle and

prohibits Congress from delegating its lawmaking

authority to another branch of government—

typically the Executive. Gundy v. United States, 139

S. Ct. 2116, 2121 (2019). The doctrine originates

from Article I of the Constitution, which vests all

legislative powers in Congress. The Court first

articulated the doctrine as it is understood today in

Marshall Field & Co. v. Clark, in which it

announced in dictum that “Congress cannot delegate

legislative power to the president.” 143 U.S. 649, 692

(1892).

But

the

Court

distinguished

the

impermissible “delegation of power to make the law,

which necessarily involves a discretion as to what

[the law] shall be,” from “conferring authority or

discretion as to its execution, to be exercised under

and in pursuance of the law,” which is permissible.

Id. at 693-94 (internal punctuation and citation

omitted). In this way, the doctrine “do[es] not

prevent Congress from obtaining the assistance of its

22

coordinate Branches.” Mistretta v. United States, 488

U.S. 361, 372 (1989).

Accordingly, the Court has long held that

Congress may confer discretion on the Executive

Branch and its departments and agencies to

implement and enforce the laws so long as Congress

supplies an “intelligible principle” defining the limits

of that discretion. Ibid. (quoting J.W. Hampton, Jr.

& Co. v. United States, 276 U.S. 394, 409 (1928)).

Put another, more rigorous way:

Does the statute assign to the executive only

the responsibility to make factual findings?

Does it set forth the facts that the executive

must consider and the criteria against which

to measure them? And most importantly, did

Congress, and not the Executive Branch,

make the policy judgments?

Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting).

Under this rubric, the Court has only twice

found

congressional

delegation

to

be

unconstitutional, both instances in 1935, and in each

case because “Congress had failed to articulate any

policy or standard” to confine the Executive’s

discretion. Mistretta, 488 U.S. at 373, n.7 (emphasis

added); see A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935); Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935).

In the eighty-six years since Schechter Poultry,

the Court has never once applied the nondelegation

doctrine to invalidate any other statute. To the

contrary, the Court has continued to uphold broad

delegations of authority to the Executive under

23

various statutes. See, e.g., Nat’l Broadcasting Co. v.

United States, 319 U.S. 190, 216 (1943) (approving

delegation

of

authority

to

the

Federal

Communications Commission to regulate in the

“public interest”); Whitman v. American Trucking

Ass’ns, 531 U.S. 457, 472 (2001) (affirming

delegation of authority to EPA to issue air quality

standards necessary “to protect the public health”).

Accordingly, and as demonstrated by the Court’s

precedent, delegation from Congress to the

Executive is unconstitutional only in extreme

cases—those in which Congress entirely fails to

confine the Executive’s discretion. Whitman, 531

U.S. at 474.

2. This is simply not one of those rare cases.

Rather, in the CAA Congress directed EPA to engage

in factfinding and to regulate emissions of a

pollutant when articulable thresholds were met, “a

practice that is … long associated with the executive

function.” Gundy, 139 S. Ct. at 2140 (Gorsuch, J.,

dissenting). Congress set forth a definition of “air

pollutant” that this Court determined in

Massachusetts included GHGs, and recognized that

Congress included effects on “climate” and “weather”

as among the effects of air pollution that could lead

to an endangerment finding and a consequent

obligation to regulate. See 549 U.S. at 506; J.A. 230

(concurrence and dissent of Judge Walker,

recognizing continued validity of Massachusetts).

Armed with that ruling and subsequent factfinding,

EPA issued the Endangerment Finding—a challenge

to which the lower court rejected, Coalition for

Responsible Regulation v. EPA, 684 F.3d 102 (D.C.

Cir. 2012), and this Court declined to take up, id.,

cert. denied, No. 12-1253 (S. Ct. Oct. 15, 2013); see

24

also Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,

314 (2014) (UARG) (noting grant of only one

question, on stationary source permitting).

This Court may choose to determine that the

court below erred in its broad reading of §7411(d).

But if it does, it should do so using traditional tools

of statutory construction; without doing violence to

its prior rulings; and without entirely voiding EPA’s

authority to engage in factfinding regarding the

effects of pollutants and to regulate emissions of

those pollutants according to the policies Congress

set forth. Cf. Gundy, 139 S. Ct. at 2140-42 (Gorsuch,

J. dissenting). Because §7411(a)(1) imposes

constraints on EPA’s authority to regulate—

specifically, that emission standards must be based

on the “best system of emission reduction which

(taking into account the cost of achieving such

reduction and any nonair quality health and

environmental impact and energy requirements) the

Administrator determines has been adequately

demonstrated”16—the Court should decline to resolve

this case based on application of the nondelegation

doctrine.

B. The Major Questions Doctrine May

Constrain, but Does Not Void, EPA’s

Authority

Under

the

Ambiguous

Language of Section 7411(d).

The Court should also decline to find that the

major questions doctrine precludes EPA from

regulating GHGs under §7411(d), instead resolving

16 42 U.S.C. §7411(a)(1).

25

this case using its traditional tools, such as the twostep Chevron analysis. Even under Step Two of that

analysis, which governs where the statute is

ambiguous, an agency’s interpretation prevails only

if it is “reasonable,” 467 U.S. at 842–43, and the

courts ultimately make that determination of

reasonableness. In such circumstances, the major

questions doctrine allows the courts to cabin agency

authority where ambiguous language might

otherwise result in transformational rulemakings

without sufficient direction from Congress.

The issue before the Court in this case can

readily be answered by applying Chevron—that is,

by reading §7411(d) in context to determine the

outer bounds of EPA’s authority. In identifying those

outer bounds, the Court can be aided by application

of the major questions doctrine, asking—based on

the specific rule the agency has promulgated—

whether the statute “sufficiently guides executive

discretion to accord with Article I” and thus allows

the challenged regulation to stand. Gundy, 139 S. Ct.

at 2123 (Kagan, J., plurality op.). In doing so here,

the Court likely will obviate the need for further

constitutional inquiry, id., because, properly

construed, §7411(d) sets forth a carefully crafted

framework within which EPA and the States are to

work together to feasibly and reasonably regulate

emissions of GHGs and other pollutants from

existing sources.

1. The major questions doctrine, in tandem with

the closely related clear-statement canon, evolved as

a way to check Executive Branch overreach into

areas of significant political or economic import,

without eviscerating acts of Congress as

unconstitutional delegations of legislative authority

26

to the Executive. See, e.g., UARG, 573 U.S. at 324.

Thus,

[w]hen an agency claims to discover in a

long-extant statute an unheralded power to

regulate a significant portion of the American

economy,

we

typically

greet

its

announcement with a measure of skepticism.

We expect Congress to speak clearly if it

wishes to assign to an agency decisions of

vast economic and political significance.

Ibid.

Read in this light, the major questions doctrine

is simply a brake on an agency’s authority under

Step Two of the Chevron analysis: if a statute is

clear, then under Step One its language governs any

rule, even a transformational rule, issued under it,

so long as that rule comports with the statute’s

terms. If, however, the statute is ambiguous, the

reviewing court must examine whether the

challenged rule is transformational. If it is, then it is

for the reviewing court (and not for the agency) to

determine whether Congress’s direction in the

statute has been sufficient to accord with Article I

and allow the rule to stand. In short, the major

questions doctrine is a logical corollary of Chevron’s

instruction that, even under Step Two, an agency’s

interpretation of an ambiguous provision must be

“reasonable.” 467 U.S. at 842–43. And it acts as a

judicial intermediary between the chainsaw of the

nondelegation doctrine (which strips away all

authority when applied) and the scalpel of Chevron

(which in some instances may allow too much

legislating by the Executive Branch to pass

constitutional muster). It is thus unsurprising that

27

the Court has frequently avoided difficult

nondelegation doctrine questions by resorting to

major questions principles. E.g., Burwell, 576 U.S.

at 485-86.

Here, broad application of the major questions

doctrine to conclude that the Act does not authorize

EPA to regulate GHGs at all under §7411(d) (or

more broadly under the Act) would be tantamount to

applying the nondelegation doctrine, stripping EPA

of all authority to regulate GHGs under the section.

As discussed previously, this would effectively

repudiate AEP, which expressly relied upon EPA’s

authority under §7411 to regulate GHGs as a key

reason for concluding that the Act displaces federal

common law tort suits. 564 U.S. at 425. The Court

should take all reasonable steps to avoid this chaotic

outcome.

But the Court could, for example, apply the

major questions doctrine to a narrower question: Did

Congress intend in §7411(d) to authorize EPA to

mandate GHG emission reductions through a

restructuring of the electricity grid? That is a

question for the Court, to be resolved through a

reading of the statutory language in the context in

which it is used. Burwell, 576 U.S. at 485.17 Even if

As the Court recently demonstrated via the twin orders of

Biden v. Missouri, No. 21A240, 2022 WL 120950 (U.S. Jan. 13,

2022) (per curiam), and National Federation of Independent

Business v. Department of Labor (NFIB), No. 21A244, 2022 WL

120952 (U.S. Jan. 13, 2022) (per curiam), the major questions

doctrine, were it to be applied, should be used to evaluate only

the precise regulation under review, not the statutory scheme

more broadly. NFIB, 2022 WL 120952, at *3 (construing

statutory authorization to issue broad vaccine-or-test

Continued on next page…

17

28

the Court concludes that is not the case, there is still

authority for the agency to act. It may attempt

another rulemaking using the same statutory

authority, and the question then would be whether

that

rulemaking

too

is

impermissibly

transformational, or whether it instead falls within

the reasonable bounds of the ambiguities in the

statute.

In the end, regardless of the statutory

construction tools employed, a reading of §7411(d)

that possibly constrains but does not eviscerate

EPA’s authority under §7411(d) should control. And

in that case, the displacing effect of the Clean Air

Act on federal common law tort suits against GHG

emitters would remain intact.

2. Congress through the Act, and this Court

through its prior decisions, provided the Court with

all the tools it needs to discern the metes and bounds

of EPA’s authority under §7411(d). Applying those

traditional statutory construction tools demonstrates

that those metes and bounds include reasonable

regulation of GHGs in accordance with the Act’s

terms.

Take, for example, this Court’s evaluation of the

first suite of GHG regulations promulgated following

EPA’s Endangerment Finding. In UARG, this Court

reviewed EPA’s GHG emission standards for new

motor vehicles and the agency’s determination that

requirement); id. at *5-6 (Gorsuch, J., concurring) (applying

major questions doctrine to same); Biden, 2022 WL 120950, at

*3 (concluding that vaccine requirement specific to facilities

receiving Medicare and Medicaid funding “fits neatly within

the language of the statute”).

29

certain stationary sources of GHGs were subject to

the Act’s Prevention of Significant Deterioration

(PSD) and Title V permitting programs “on the basis

of their potential to emit greenhouse gases.”18 573

U.S. at 312. EPA proposed to regulate in phases:

First, it would require sources already regulated

under the PSD program based on their emissions of

other pollutants at above-threshold levels (“anyway”

sources) to comply with GHG-emission limitations

that reflect the “best available control technology”

(BACT) for “each pollutant subject to regulation

under” the Act. §7475(a)(4). Second, EPA would

“tailor” the programs to accommodate GHG

emissions (which are typically higher by orders of

magnitude than emissions of other pollutants) by

providing, among other things, that other sources

would not become newly subject to PSD or Title V

permitting on the basis of their potential to emit

GHGs in amounts less than 100,000 tons per year,

id. at 312-13, i.e., as much as 100 times the

threshold amount set by Congress.

The Court upheld EPA’s authority to require

BACT for anyway sources but rejected EPA’s

attempt to “tailor” the numeric statutory thresholds

18 The PSD provisions make it unlawful to construct or modify

a “major emitting facility” in certain areas without a permit.

§§7475(a)(1), 7479(2)(C). A “major emitting facility” is a

stationary source with the potential to emit 250 tons per year

of “any air pollutant” (or 100 tons per year for certain types of

sources). §7479(1). In addition, Title V of the Act makes it

unlawful to operate any “major source,” wherever located,

without a permit. §7661a(a). A “major source” is a stationary

source with the potential to emit 100 tons per year of “any air

pollutant.” §§7661(2)(B), 7602(j).

30

to “reasonably” address GHGs through the PSD

program.

a. First, as to the “tailoring” rule, the Court

concluded that the PSD and Title V programs

“cannot rationally be extended beyond[] a relative

handful of large sources capable of shouldering

heavy substantive and procedural burdens.” Id. at

322.

EPA’s

contrary

interpretation—which

effectively amended clear statutory language

regarding the permitting thresholds—would “bring

about an enormous and transformative expansion in

EPA’s

regulatory

authority

without

clear

congressional authorization.” Id. at 324. Requiring

permits “for the construction and modification of

tens of thousands, and the operation of millions, of

small sources nationwide falls comfortably within

the class of authorizations that we have been

reluctant to read into ambiguous statutory text.”

Ibid. (cleaned up). EPA thus exceeded its authority

when it adjusted the Act’s permitting thresholds to

accommodate GHGs. Id. at 327.

The Court squared its decision with its ruling in

Massachusetts by explaining that there the Court

had held that the Act-wide definition of “air

pollutant” includes GHGs. 549 U.S. at 529. By

contrast, “in the Act’s operative provisions, including

the PSD and Title V permitting provisions, EPA has

routinely given [‘air pollutant’] a narrower, contextappropriate meaning.” UARG, 573 U.S. at 316.

Massachusetts did not invalidate those “longstanding

constructions.” Id. at 318 (explaining that EPA is not

compelled to regulate in a manner that is “extreme,

counterintuitive, or contrary to common sense”

(cleaned up)). Thus, while GHGs are air pollutants

31

as a general matter for purposes of the Act, actual

regulation of them must fit within the context of

each individual Clean Air Act program, according to

those programs’ terms.

b. Although the Court could not find

authorization in the Act for EPA to amend the PSD

permitting triggers to accommodate GHG regulation

from a dramatically expanded universe of sources, it

had no trouble applying Chevron and concluding

that regulation of GHGs from “anyway” sources—

those already subject to the program by virtue of

their other emissions—fell squarely within EPA’s

authority. Id. at 331. The specific phrasing of the

BACT provision—which requires BACT “for each

pollutant subject to regulation under” the Act,

§7475(a)(4)—“does not suggest that the provision can

bear a narrowing construction.” Id. at 331-32. And

“even if the text were not clear, applying BACT to

greenhouse gases is not so disastrously unworkable,

and need not result in such a dramatic expansion of

agency authority, as to make EPA’s interpretation

unreasonable.” Id. at 332. In sum, in the context of

the Act’s distinct language in the BACT provision,

the Court concluded that the inclusion of GHGs as

an “air pollutant” accorded with the congressional

scheme.

3. Instead of resorting to doctrines that would

undercut decades of regulatory practice and upend

industry reliance on uniform nationwide regulation,

the Court can apply the principles set out in UARG,

AEP, and Massachusetts to evaluate the lower

court’s decision here and, by extension, the contours

of EPA’s authority to regulate GHG emissions from

existing sources under §7411(d).

32

A key lesson from UARG is that context-specific

statutory language must be interpreted in a way

that harmonizes with the remainder of the statute.

Here, as in UARG, the general definition of “air

pollutant” as including GHGs holds, because that

term unambiguously includes pollutants of all

stripes; but, also as in UARG, the language in

§7411(d) provides important context regarding how

and the extent to which EPA may regulate those

GHGs as air pollutants under the new and existing

source performance standards program. Precedent,

canons of statutory construction, and common sense

provide all the tools the Court requires to evaluate

the contours of EPA’s regulatory authority under

§7411(d) in the context of GHGs.

Just as the Court recognized in UARG that

applying the PSD and Title V requirements to an

untold number of small entities would be contrary to

congressional intent, but that the statute could be

interpreted in a way that did not raise constitutional

concerns, 573 U.S. at 324, so too here the Court may

determine that there are bounds within EPA must

stay if it chooses to regulate GHGs under §7411(d).

As explained above, §7411 provides guardrails

within which EPA and the States are to steer the

course of existing-source regulation, and those

include considerations such as cost, technological

feasibility, and remaining useful life of those

sources. §7411(a), (d). Congress also tasked EPA

with accounting for other health and environmental

impacts and energy requirements when discharging

its statutory obligation to regulate existing sources.

§7411(a). Indeed, this Court referred to precisely

these factors when concluding that EPA and the

States, not litigants and judges, are to address GHG

33

regulation in the first instance. AEP, 564 U.S. at

427-28 (quoting §7411). EPA’s regulatory decisions

can readily be evaluated within these statutory

parameters.

A reasoned application of the major questions

doctrine or Chevron to the narrow question

presented—whether Congress intended EPA to be

able to restructure the Nation’s electricity grid, or

instead may regulate but only to some lesser

extent—would allow the Court to constrain but still

retain EPA’s authority to reasonably regulate GHGs

under §7411(d). Indeed, as the Court recognized in

UARG, no party in AEP “argued [§7411] was ill

suited to accommodating greenhouse gases.” 573

U.S. at 319 n.5.

By contrast, a conclusion that the major

questions doctrine eliminates EPA’s authority to

regulate GHGs under §7411(d) could have serious

adverse consequences for the Nation’s energy supply.

The Court should thus similarly avoid a ruling that

exceeds what is necessary to guide the regulating

agency in this particular context.

CONCLUSION

Climate change is a challenge of nearunprecedented proportions, and one that no agency

can resolve “in one fell regulatory swoop.”

Massachusetts, 549 U.S. at 524. But, as this Court

recently explained, “unprecedented circumstances

provide no grounds for limiting the exercise of

authorities the agency has long been recognized to

have.” Biden v. Missouri, 2022 WL 120950 at *5.

The Court should decline invitations to use this

case to revive the nondelegation doctrine. Neither

34

should the Court void EPA’s authority to regulate

GHGs entirely by ruling that such regulation is too

major a question for Congress to have delegated to

EPA without more specificity. Instead, the Court

should employ time-tested statutory construction

tools to read §7411(d) as allowing reasonable

regulation of GHGs emitted by existing sources. In

so doing, the Court can also preserve the federal

common-law-displacing effect of the Act that is so

critical to the Nation’s reliable supply of electricity

and clean water.

Respectfully submitted,

THOMAS A. LORENZEN

Counsel of Record

ELIZABETH B. DAWSON

LYNN PHAN

SIYI SHEN

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004

(202) 624-2500

tlorenzen@crowell.com

EMILY S. FISHER

ALEXANDER BOND

EDISON ELECTRIC INSTITUTE

701 Pennsylvania Ave., NW

Washington, DC 20004

Counsel for Edison Electric

Institute

NATHAN GARDNER-ANDREWS

AMANDA ASPATORE

NATIONAL ASSOCIATION OF

35

CLEAN WATER AGENCIES

1130 Connecticut Ave., NW,

Suite 1050

Washington, DC 20036

Counsel for National

Association of Clean Water

Agencies