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
WEST VIRGINIA, et al.,
Petitioners,
v.
Environmental Protection Agency, et al.,
Respondents.
THE NORTH AMERICAN COAL CORPORATION,
Petitioner,
v.
Environmental Protection Agency, et al.,
Respondents.
(For Continuation of Caption See Inside Cover)
On Writs of Certiorari to the United States Court of
A ppeals for the District of Columbia Circuit
BRIEF OF AMICUS CURIAE RICHARD L. REVESZ
IN SUPPORT OF FEDERAL, NON-GOVERNMENTAL
ORGANIZATION AND TRADE ASSOCIATION, POWER
COMPANY, AND STATE AND MUNICIPAL RESPONDENTS
Jack Lienke
Rachel Rothschild
Max Sarinsky
Institute for Policy
Integrity
139 MacDougal Street,
3rd Floor
New York, New York 10012
(212) 992-8932
Richard L. Revesz
Counsel of Record
New York University
School of Law
40 Washington Square South
New York, New York 10012
(212) 998-6185
richard.revesz@nyu.edu
Counsel for Amicus Curiae
309515
WESTMORELAND MINING HOLDINGS LLC,
Petitioner,
v.
Environmental Protection Agency, et al.,
Respondents.
NORTH DAKOTA,
Petitioner,
v.
Environmental Protection Agency, et al.,
Respondents.
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITES . . . . . . . . . . . . . . . iii
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.
The Factors that Petitioners Deem Indicative
of a Major Question Are Unworkable and
Fail to Distinguish the Clean Power Plan
from Many Other Regulations . . . . . . . . . . . . . . 5
A. The Clean Power Plan’s Costs, Which
Petitioners Wildly Overstate, Are Not
a Workable Criterion for Application of
the Major Questions Doctrine . . . . . . . . . . . 5
B. Petitioners’ Focus on Legislative
Failures Under the Major Questions
Doctrine Disregards This Court’s Clear
Precedent and Does Not Meaningfully
Differentiate the Clean Power Plan . . . . . . 12
C. Public Salience Is a Problematic
Consideration Under the Major
Questions Doctrine, as Evidenced
by Petitioners’ Various Unworkable
Indicators . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
Table of Contents
Page
II. EPA’s Past Reliance on Flexible Compliance
Mecha n i sms, Includ i ng G enerat ion
Shifting, Under Administrations of Both
Parties, Belies Petitioners’ Claims That
the Clean Power Plan’s Novelty Triggers
the Major Questions Doctrine . . . . . . . . . . . . . . 21
A. EPA Has Previously Set the Stringency
of Section 111(d) Standards Based on
the Use of Generation Shifting and
Emissions Trading . . . . . . . . . . . . . . . . . . . . 22
B. EPA Has Previously Set the Stringency
of Standards Under Other Clean Air
Act Provisions Based on Generation
Shifting and Emissions Trading . . . . . . . . 24
III. Section 111(d) Is Not an Afterthought, as
Petitioners Claim in Their Major Questions
Analysis, But a Key Component of the
Clean Air Act’s Comprehensive Approach
to Regulating Pollution . . . . . . . . . . . . . . . . . . . . 29
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iii
TABLE OF CITED AUTHORITIES
Page
Cases
Ass’n of Pac. Fisheries v. EPA.,
615 F.2d 794 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . 10
Biden v. Texas,
210 L. Ed. 2d 1014 (Aug. 24, 2021) . . . . . . . . . . . . . . . 19
Bostock v. Clayton County, Georgia,
140 S. Ct. 1731 (2020) . . . . . . . . . . . . . . . . . . . . 3, 12, 13
Conroy v. Aniskoff,
507 U.S. 511 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599 (2020) . . . . . . . . . . . . . . . . . . . . . . . 17, 20
Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
EPA v. EME Homer City,
572 U.S. 489 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 18, 25
Food & Drug Admin. v.
Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . 5, 14, 15
King v. Burwell,
576 U.S. 473 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
Cited Authorities
Page
MCI Telecommunications Corp. v.
Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Nat. Res. Def. Council v. Thomas,
805 F.2d 410 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . 27
Nat’l Ass’n of Metal Finishers v. EPA,
719 F.2d 624 (3d Cir. 1983), rev’d on other grounds
sub nom. Chem. Mfrs. Ass’n v. Nat. Res. Def.
Council, Inc., 470 U.S. 116 (1985) . . . . . . . . . . . . . . . 10
New Jersey v. EPA,
517 F.3d 574 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . 23
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) . . . . . . . . . . . . . . . . . . . . . . . 5, 18
Sierra Club v. Costle,
657 F.2d 298 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . 9
Small Refiner Lead Phase-Down Task Force v.
EPA,
705 F.2d 506 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 27
Sullivan v. Finkelstein,
496 U.S. 617 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Train v. Nat. Res. Def. Council, Inc.,
421 U.S. 60 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
v
Cited Authorities
Page
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . 18, 22, 29
Wisconsin v. EPA,
938 F.3d 303 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . 25
Statutes and Other Authorities
42 U.S.C. § 7410(a)(2)(D)(i)(I) . . . . . . . . . . . . . . . . . . 24-25
42 U.S.C. § 7411(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 7411(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
42 U.S.C. § 7521(a)(3)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . 27
42 U.S.C. § 7545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
42 U.S.C. § 7602(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
40 C.F.R. § 60.24(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
40 Fed. Reg. 53,340 (Nov. 17, 1975) . . . . . . . . . . . . . 30, 31
42 Fed. Reg. 55,796 (Oct. 18, 1977) . . . . . . . . . . . . . . . . . 31
44 Fed. Reg. 29,828 (May 22, 1979) . . . . . . . . . . . . . . . . 31
45 Fed. Reg. 26,294 (Apr. 17, 1980) . . . . . . . . . . . . . . . . 31
vi
Cited Authorities
Page
46 Fed. Reg. 13,193 (Feb. 17, 1981) . . . . . . . . . . . . . . . . . 11
47 Fed. Reg. 49,322 (Oct. 29, 1982) . . . . . . . . . . . . . . . . . 27
48 Fed. Reg. 33,456 (July 21, 1983) . . . . . . . . . . . . . . . . . 26
58 Fed. Reg. 51,735 (Oct. 4, 1993) . . . . . . . . . . . . . . . . . . 11
61 Fed. Reg. 9905 (Mar. 12, 1996) . . . . . . . . . . . . . . . . . 31
63 Fed. Reg. 57,356 (Oct. 27, 1998) . . . . . . . . . . . . . . . . . 25
70 Fed. Reg. 25,162 (May 12, 2005) . . . . . . . . . . . . . . . . 25
70 Fed. Reg. 28,606 (May 18, 2005) . . . . . . . . . . 22, 23, 24
71 Fed. Reg. 39,154 (July 11, 2006) . . . . . . . . . . . . . . . . . 28
72 Fed. Reg. 8428 (Feb. 26, 2007) . . . . . . . . . . . . . . . . . 26
73 Fed. Reg. 3568 (Jan. 18, 2008) . . . . . . . . . . . . . . . . . . 28
73 Fed. Reg. 71,730 (Nov. 25, 2008) . . . . . . . . . . . . . . . . . 8
76 Fed. Reg. 48,208 (Aug. 8, 2011) . . . . . . . . . . . . . . 25, 26
76 Fed. Reg. 57,106 (Sept. 15, 2011) . . . . . . . . . . . . . . . . 27
77 Fed. Reg. 62,624 (Oct. 15, 2012) . . . . . . . . . . . . 9, 26, 27
vii
Cited Authorities
Page
81 Fed. Reg. 74,504 (Oct. 26, 2016) . . . . . . . . . . . . . . . . . 25
85 Fed. Reg. 61,505 (Sept. 29, 2020) . . . . . . . . . . . . . . . . . 8
85 Fed. Reg. 68,964 (Oct. 30, 2020) . . . . . . . . . . . . . . . . 26
85 Fed. Reg. 72,158 (Nov. 12, 2020) . . . . . . . . . . . . . . . . . 8
86 Fed. Reg. 23,054 (Apr. 30, 2021) . . . . . . . . . . . . . . . . 26
116 Cong. Rec. 32,901 (1970) . . . . . . . . . . . . . . . . . . . . . . 31
Bills by Final Status, GovTrack . . . . . . . . . . . . . . . . . . 14
Brian Leiter, 20 Most-Cited Administrative
and/or Environmental Law Faculty in
the U.S., 2016–2020, The Law Professor
Blogs Network (Nov. 8, 2021) . . . . . . . . . . . . . . . . . . . . 1
Brief of Leon G. Billings and Thomas C. Jorling
as Amici Curiae in Support of Respondents,
We s t V i r g i n i a v . EPA , No . 1 5 -1 3 6 3
(D.C. Cir. dismissed Sept. 17, 2019) . . . . . . . . . . . . . 30
Denise A. Grab & Jack Lienke, The Falling Cost
of Clean Power Plan Compliance (2017) . . . . . . . . 7, 8
EPA, Clean Power Plan Response to Comments,
EPA-HQ - OA R -2 013 - 0 6 0 2 - 3710 6 , Ch. 8
Economic & Employment Impacts Part 1:
Sections 8.0 Through 8.6 (2015) . . . . . . . . . . . . . . . . . . 7
viii
Cited Authorities
Page
E PA , R e g u l a t o r y I mp a c t A n a l y s i s fo r
the Clean Power Plan Final Rule (2015) . . . . . . . . . . 8
Exec. Order 12,291 § 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . 11
Exec. Order 12,866 § 1(a) . . . . . . . . . . . . . . . . . . . . . . . . . 11
H.R. 910, 112th Cong. (2011) . . . . . . . . . . . . . . . . . . . . . . 13
H.R. 2454, 111th Cong. § 703 (2009) . . . . . . . . . . . . . . . . 13
H.R. 3826, 113th Cong. (2014) . . . . . . . . . . . . . . . . . . . . . 13
H.R. 5300, 113th Cong. § 2(b)(2) (2014) . . . . . . . . . . . . . 13
H.R. Rep. No. 117-64 (2021) . . . . . . . . . . . . . . . . . . . . . . 32
Job Openings, Hires, and Total Separations by
Industry, Seasonally Adjusted, Bureau of
Labor Statistics (last updated Jan. 4, 2022) . . . . . . . 9
Natasha Br unstein & Richard L. Revesz,
Mangling the Major Questions Doctrine,
74 Admin. L. Rev. (forthcoming 2022) . . . 2, 16, 17, 21
Poll: Majority in All States, Congressional
Districts Support Clean Power Plan, Yale
School of the Environment (Feb. 28, 2017) . . . . . . . 20
Pub. L. No. 117-23, 135 Stat. 295 (2021) . . . . . . . . . . . . . 32
ix
Cited Authorities
Page
Publi c Ch ar ge Liti ga ti o n, Ct r. for P ub.
Representation (last updated Mar. 9, 2021) . . . . . . 17
Remarks on Border Wall Construction and
Immigration Reform Near Alamo, Texas,
2021 Daily Comp. Pres. Doc. 14 (Jan. 12, 2021) . . . . 19
Revenue from Sales of Electricity to Ultimate
Customers, U.S. Energy Info. Admin. . . . . . . . . 10–11
Richard L. Revesz, Bostock and the End of
the Climate Change Double Standard,
46 Colum. J. Env’t L. 1 (2020) . . . . . . . . . . . . . 1, 13, 22
Richard L. Revesz et al., Familiar Territory:
A Survey of Legal Precedents for the Clean
Power Plan, 46 Env’t L. Rep. 10,190 (2016) . . . . . . . . 1
Richard Schmalensee & Robert N. Stavins, Policy
Evolution Under the Clean Air Act, Resources
for the Future (Working Paper No. 18-27,
2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
S. Rep. No. 91-1196 (1970) . . . . . . . . . . . . . . . . . . . . . . . . 30
S.J. Res. 24, 114th Cong. (2015) . . . . . . . . . . . . . . . . 13–14
x
Cited Authorities
Page
Staff of Permanent Subcomm. on Investigations,
116th Cong., Abuses of the Federal Noticeand- Comment Rulemaking Process
(Comm. Print. 2019) . . . . . . . . . . . . . . . . . . . . . . . 15–16
Steve Balla et al., Mass, Computer-Generated,
and Fraudulent Comments (June 1, 2021) . . . . . . . 16
1
INTEREST OF AMICUS CURIAE
Amicus Richard L. Revesz,1 the AnBryce Professor of
Law and Dean Emeritus at New York University School
of Law, has published more than 100 books, articles, and
chapters on environmental and administrative law, and was
recently listed as the nation’s most cited environmental
and administrative law scholar. 2 In particular, Professor
Revesz has written extensively on the regulatory state,
the Clean Air Act, and the major questions doctrine.
Through his scholarship, Professor Revesz has described
the considerable regulatory precedent for the Clean
Power Plan and highlighted the extensive use of flexible
compliance mechanisms, including generation shifting,
in prior Clean Air Act regulation. 3 Professor Revesz has
also documented Congress’s concerns for climate change
in enacting the Clean Air Act in 1970.4
1. No party or counsel for a party authored this brief in whole
or in part. No party, counsel for a party, or person other than amicus
or counsel made any monetary contribution intended to fund the
preparation or submission of this brief. All parties have consented
to the filing of this brief.
2. Brian Leiter, 20 Most-Cited Administrative and/or
Environmental Law Faculty in the U.S., 2016–2020, The Law
Professor Blogs Network (Nov. 8, 2021), https://leiterlawschool.
typepad.com/leiter/2021/11/20-most-cited-administrative-andorenvironmental-law-faculty-in-the-us-2016-2020.html.
3. See, e.g., Richard L. Revesz et al., Familiar Territory: A
Survey of Legal Precedents for the Clean Power Plan, 46 Env’t
L. Rep. 10,190 (2016).
4. Richard L. Revesz, Bostock and the End of the Climate
Change Double Standard, 46 Colum. J. Env’t L. 1 (2020).
2
Additionally, Professor Revesz’s scholarship has
analyzed the major questions doctrine and explained
how the Trump administration’s attempts to expand
the doctrine would produce unworkable standards and
perverse incentives. 5 Petitioners 6 and their amici in
this litigation echo many of the Trump administration’s
arguments, asking this Court to consider factors such
as a rule’s public salience and the magnitude of its
costs in deciding whether the major questions doctrine
is applicable. This brief draws on Professor Revesz’s
scholarship to rebut those arguments.
SUMMARY OF ARGUMENT
The Clean Power Plan was repealed three years
ago—having never been implemented—and none of the
parties seek to revive it. Nonetheless, petitioners request
that this Court invoke the major questions doctrine to
declare the already-defunct rule unlawful. They contend
that if the Clean Power Plan had been implemented
according to its original schedule, it would have crippled
the coal industry and vastly expanded EPA’s authority. As
respondents explain, these claims are nonjusticiable, as
they require the Court to adjudicate the lawfulness of a
rule that no longer exists, will never be enforced, and has
been bypassed by market trends. Fed. Resp’t Br. 15–23;
NGO & Trade Ass’n Br. 23–32. In addition, petitioners’
claims rely on misrepresentation of the Clean Power Plan’s
5. Natasha Brunstein & Richard L. Revesz, Mangling the
Major Questions Doctrine, 74 Admin. L. Rev. (forthcoming 2022),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3927233.
6. This brief uses the term “petitioners” to include
respondents in support of petitioners.
3
record and precedents, as well as illogical and unworkable
new standards for identifying a major question.
As evidence of a major question, petitioners focus
on three factors that supposedly make the Clean Power
Plan unique: the rule’s economic impacts, the degree
of legislative attention its subject matter has received,
and its public salience. None of these factors offers a
persuasive basis to invoke the doctrine. For instance, while
petitioners allege that the Clean Power Plan would have
decimated the coal industry, the Trump administration
concluded in the Affordable Clean Energy Rule (“ACE”),
which petitioners defend, that the Plan would have made
“no difference” in the energy sector and that repealing it
would thus have no economic impact, positive or negative.
J.A. 1672–73. Moreover, even if this Court somehow
considered EPA’s outdated (and, in retrospect, inflated)
cost projections from 2015, those estimates are in line
with the projected impacts of other regulations from
administrations of both parties.
Petitioners’ focus on legislative attention and public
salience is similarly misguided. While petitioners highlight
failed legislative attempts to limit greenhouse gas pollution
economy-wide, this Court has rejected “speculation about
why a later Congress declined to adopt new legislation” as
a tool of statutory interpretation, explaining that inaction
could indicate recognition of authority previously granted.
Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1747
(2020). Petitioners’ emphasis on “the controversial subject
of climate change,” W. Va. Br. 26 (internal quotation
marks omitted), also fails to provide a workable trigger
for the major questions doctrine, as many issues are
controversial in today’s political climate yet remain the
4
subject of frequent rulemaking that this Court has often
upheld. Petitioners’ argument would produce an absurd
result under which public controversy surrounding an
issue could deprive an agency of an authority it held when
the issue was less controversial.
As further evidence of a major question, petitioners
erroneously claim that EPA has always “require[d]
performance standards that are achievable by individual
sources,” and that the Clean Power Plan’s reliance on
generation shifting represented a transformative use
of the agency’s authority under Section 111(d). Nat’l
Mining Ass’n Br. 39–41. Yet in the George W. Bush
administration’s Clean Air Mercury Rule, a cap-and-trade
program for coal-fired power plants, EPA set emission
limits based in part on shifting generation away from
high-polluting facilities. That rule, which many of the
petitioners in this case supported, also had considerable
precedent.
Petitioners and amici further suggest that any
significant rulemaking under Section 111(d) raises a major
question, because the provision is “an all-but-forgotten
backwater” of the Clean Air Act, Westmoreland Br. 1, that
“was never used” prior to the Clean Power Plan, Mich.
Leg. Br. 2. But these claims also fall flat, as both legislative
history and regulatory precedent establish Section 111(d)
as a key provision for controlling air pollution from
stationary sources.
In sum, petitioners exaggerate the impacts of the
Clean Power Plan and misrepresent the Clean Air Act’s
structure and regulatory history. In doing so, they seek
to extend the major questions doctrine in unwarranted
and unworkable ways.
5
ARGUMENT
I.
The Factors that Petitioners Deem Indicative of
a Major Question Are Unworkable and Fail to
Distinguish the Clean Power Plan from Many
Other Regulations
Petitioners and their amici present various criteria that
purportedly justify applying the major questions doctrine
here. These include regulatory costs; congressional
attention; and public salience as represented by such
factors as the volume of public comments, related
litigation, and presidential statements. But such factors
hardly distinguish this case, and would stretch a doctrine
meant to apply only “[i]n extraordinary cases” beyond
both recognition and workability. Food & Drug Admin.
v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
159 (2000). In many circumstances, these factors would
also create perverse incentives for both regulators and
regulated entities. Because they fail to offer “limited
and precise standards that are clear, manageable, and
politically neutral,” Rucho v. Common Cause, 139 S. Ct.
2484, 2500 (2019), petitioners’ justifications for applying
the major questions doctrine are unpersuasive.
A.
The Clean Power Plan’s Costs , W hich
Petitioners Wildly Overstate, Are Not a
Workable Criterion for Application of the
Major Questions Doctrine
As a basis for invoking the major questions doctrine,
petitioners emphasize the projected regulatory costs of
the never-implemented Clean Power Plan. According
to petitioners, implementing the rule “would have cost
6
hundreds of billions of dollars,” W. Va. Br. 20, including
“a near-collapse in coal production, displacement of
thousands of jobs across multiple industries, and hundreds
of billions in forgone economic growth,” Westmoreland
Br. 30. But these cost-related claims fail for at least four
reasons: (1) the relevant cost estimate for purposes of
this case is zero—the economic impact that the Trump
administration attributed to the Clean Power Plan when
it repealed the rule; (2) the outdated industry estimates
petitioners cite were hugely inflated even when made; (3)
EPA’s own, far more credible, cost estimates from the
time of the Clean Power Plan’s issuance were in line with
those of other judicially upheld rules; and (4) reliance on
regulatory costs as a major questions trigger would create
perverse incentives for agencies and promote arbitrary
decisionmaking.
1.
The Relevant Cost Figure for This Case Is
the Estimate Prepared by EPA at the Time
of the Affordable Clean Energy Rule’s
Issuance, Which Found No Economic
Impact from the Clean Power Plan
Even if reg ulatory costs could reasonably be
considered when determining whether to apply the major
questions doctrine, the relevant cost figure here would be
one that reflects information available at the time EPA
replaced the Clean Power Plan with ACE, which is the
action now under review. And when it finalized the latter
rule, EPA found that the Clean Power Plan would have
had no costs at all, due to market shifts that had put the
nation on a path to meet the rule’s goals even without
any regulation. J.A. 1672–73 (“[T]here is likely to be
no difference between a world where the [Clean Power
7
Plan] is implemented and one where it is not.”). Though
petitioners did not challenge that EPA finding, they
conveniently ignore it now, along with this Court’s clear
command that the legality of a deregulatory action—here,
ACE—be evaluated based on its own contemporaneous
record. Dep’t of Homeland Sec. v. Regents of the Univ. of
Cal., 140 S. Ct. 1891, 1907 (2020). Instead, petitioners ask
the Court to attribute costs that are not supported in the
record to a rule that is not in place.
2.
T he Indust r y Cost Estimat es that
Petitioners Cite Are Neither Credible nor
Relevant, and EPA’s Own Cost Estimates
from the Time of the Clean Power Plan’s
Issuance Are in Line with Those of Other
Upheld Rules
In lieu of EPA’s 2019 estimate, petitioners rely on
select industry-funded estimates from around the time
of the Clean Power Plan’s issuance in 2015, which were
unreasonably high even when made and, as a result,
rejected by the agency.7 If cost projections based on preACE conditions were relevant here—and, again, they
are not—the appropriate projections to consider would
be those prepared by EPA itself in 2015, using a peerreviewed model of the electricity sector that the agency
has relied on for decades. Grab & Lienke, supra note
7. See EPA, Clean Power Plan Response to Comments,
EPA-HQ-OAR-2013-0602-37106, Ch. 8 Economic & Employment
Impacts Part 1: Sections 8.0 Through 8.6, 99–103 (2015); see also
Denise A. Grab & Jack Lienke, The Falling Cost of Clean Power
Plan Compliance 14–17 (2017), https://policyintegrity.org/files/
publications/Falling_Cost_of_CPP_Compliance.pdf (detailing
flaws in analysis that petitioners rely upon).
8
7, at 3–5. Those estimates—which, unlike the industry
estimates, used transparent assumptions and were subject
to public comment—found that the Clean Power Plan’s
compliance costs in 2030 would range from $5.1 to $8.4
billion, J.A. 1534, and EPA acknowledged those highend estimates did not account for “low cost abatement
opportunities” including interstate cooperation, EPA,
Regulatory Impact Analysis for the Clean Power Plan
Final Rule 3-10 to -11 (2015).
Contrary to petitioners’ claims, those costs would not
have “tower[ed] over” those of other significant regulatory
actions, W. Va. Br. 20. In recent years, numerous agencies
under administrations of both political parties have issued
multi-billion-dollar regulations without raising major
questions concerns from courts. In 2020, for example,
the Department of Defense issued a rule to “enhance
the protection of unclassified information,” which it
estimated to cost $6.5 billion annually and over $92
billion overall. 85 Fed. Reg. 61,505, 61,505, 61,507 (Sept.
29, 2020). Also in 2020, the Internal Revenue Service,
Treasury Department, and Department of Health and
Human Services promulgated a joint regulation requiring
disclosure of health insurance information that, by the
agencies’ estimates, could cost over $10 billion in a single
year. 85 Fed. Reg. 72,158, 72,280 tbl.8 (Nov. 12, 2020). And
in 2008, the Department of Homeland Security issued
regulations to restrict the import of terrorist weapons,
which it projected to cost up to $56 billion over ten years
(i.e., $5.6 billion annually). 73 Fed. Reg. 71,730, 71,768
(Nov. 25, 2008).
The estimated costs of the Clean Power Plan were
also unexceptional for EPA pollution-control rules. The
9
agency’s 1979 new source performance standards for coalburning power plants, which the U.S. Court of Appeals
for the D.C. Circuit upheld, were projected to cost utilities
“tens of billions of dollars” by 1995, resulting in higher
energy costs and consumer prices. Sierra Club v. Costle,
657 F.2d 298, 314 (D.C. Cir. 1981). And the 2012 fuelefficiency and greenhouse gas emission standards for
motor vehicles, which were not challenged in court, were
projected to cost industry $150 billion, at an annualized
rate of at least $6.5 billion. 77 Fed. Reg. 62,624, 62,663
tbl.I-19 (Oct. 15, 2012).
Petitioners’ other attempts to differentiate the
Clean Power Plan’s economic impacts similarly fail. For
instance, while petitioners claim that the rule could have
“impacted almost everyone in the Nation,” Nat’l Mining
Ass’n Br. 35, this is common for regulations affecting
consumer staples like electricity, motor vehicles, or
home appliances, as well as those involving airline safety,
central banking, and other ubiquitous aspects of modern
American life. The petitioners also highlight the Clean
Power Plan’s supposedly “major impacts on employment,”
id. at 34, but even under EPA’s outdated 2015 estimates,
the rule’s employment impacts would have been in the five
digits, J.A. 1507–08—a drop in the bucket of the millions
of individuals who gain and lose or leave jobs every
month. See Job Openings, Hires, and Total Separations
by Industry, Seasonally Adjusted, Bureau of Labor
Statistics, https://www.bls.gov/news.release/jolts.a.htm
(last updated Jan. 4, 2022).
Finally, while petitioners emphasize EPA’s sincedisclaimed projection that the Clean Power Plan would
have resulted in the “closure of sources,” Westmoreland Br.
10
19, source retirements have been a common consequence
of environmental regulation for decades. See, e.g., Ass’n
of Pac. Fisheries v. EPA., 615 F.2d 794, 808 (9th Cir.
1980) (recognizing that EPA regulation “result[s] in
plant closures” and highlighting other judicially upheld
examples); Nat’l Ass’n of Metal Finishers v. EPA, 719
F.2d 624, 663 (3d Cir. 1983), rev’d on other grounds sub
nom. Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc.,
470 U.S. 116 (1985) (upholding EPA standard “resulting in
the closing of 737 electroplating operations and the loss of
12,584 jobs”). Closures are, furthermore, consistent with
the “technology-forcing character” of the Clean Air Act,
which this Court has long recognized. Train v. Nat. Res.
Def. Council, Inc., 421 U.S. 60, 91 (1975).
3.
Focusing on Regulatory Costs Would
Create Arbitrary Results and Perverse
Incentives
Even if petitioners’ claims regarding the Clean Power
Plan’s costs were accurate, using regulatory costs as a
criterion for application of the major questions doctrine
would lead to at least three undesirable and potentially
absurd results.
First, decontextualizing a rule’s costs would jeopardize
expensive but non-transformative rules in larger
industries while likely preserving relatively inexpensive
but transformative rules in smaller industries. In this
case, for instance, the Clean Power Plan’s outdated cost
projections (as made by EPA in 2015) constitute just 1–2%
of the electricity industry’s approximately $400 billion in
annual revenues. See Revenue from Sales of Electricity to
Ultimate Customers, U.S. Energy Info. Admin., https://
11
www.eia.gov/electricity/annual/html/epa_02_03.html (last
visited Jan. 5, 2022). Such a relatively minor impact is
highly unlikely to cause the massive dislocation that the
Court decried, but upheld on its own reading, in King v.
Burwell, where eliminating the tax credit at issue would
have decreased healthcare enrollment by 70% and caused
unsubsidized premiums to increase by 47%. 576 U.S. 473,
494 (2015). Focusing on decontextualized regulatory costs
would disregard such nuance and complicate regulation
of larger industries.
Second, focusing on regulatory costs would incentivize
agencies to issue less beneficial regulations—breaking
with decades of practice and violating common sense.
Since the Reagan administration, agencies have been
encouraged to pursue, when permissible, the regulatory
approach that “maximizes the net benefits”—that is, the
regulation’s benefits minus its costs. Exec. Order No.
12,291 § 2(c), 46 Fed. Reg. 13,193, 13,193 (Feb. 17, 1981);
accord Exec. Order 12,866 § 1(a), 58 Fed. Reg. 51,735,
51,735 (Oct. 4, 1993). The Clean Power Plan, for instance,
was projected to result in $32–54 billion in annual benefits
by 2030, easily surpassing its cost. J.A. 1509. But under
petitioners’ single-minded focus on industry compliance
costs, agencies would select less-costly regulatory
approaches even when those approaches sacrificed
substantial net benefits.
Third, focusing on regulatory costs would create a
perverse incentive for agencies to split up larger rules into
component parts. While this approach would minimize the
costs of any single rule, it could well lead to higher costs
in the aggregate. Congressional silence should not be
interpreted to delegate authority to an agency to advance
a regulatory program only if the agency does so in pieces.
12
In summary, the Trump administration’s conclusion
in the challenged rule that the Clean Power Plan would
have made “no difference” renders any focus on regulatory
cost inapposite. J.A. 1672–73. And even if that were not
the case, petitioners’ suggestion that costly rules trigger
the major questions doctrine is problematic.
B. Petitioners’ Focus on Legislative Failures
Under the Major Questions Doctrine Disregards
This Court’s Clear Precedent and Does Not
Meaningfully Differentiate the Clean Power
Plan
Petitioners also suggest that the Clean Power Plan
triggers the major questions doctrine because “[c]limate
change has been on Congress’s agenda for decades.”
Westmoreland Br. 31. Citing legislative failures to
enact economy-wide greenhouse-gas programs, they
characterize the rule as an impermissible effort by the
executive to act where “Congress had failed.” Nat. Mining
Ass’n Br. 36. This argument is similarly unpersuasive.
This Court most recently dismissed the relevance
of post-enactment legislative developments as a tool of
statutory interpretation in Bostock v. Clayton County,
Georgia. 140 S. Ct. 1731 (2020). There, this Court held
that failed congressional efforts to expressly protect
sexual orientation offered “no authoritative evidence” as
to whether that protection already existed. Id. at 1747. The
Court recognized attempts to discern statutory meaning
from subsequent proposed legislation as a “particularly
dangerous basis on which to rest an interpretation
of an existing law,” as such attempts could indicate
that legislators “didn’t think a revision [was] needed”
13
because they “understood the impact [of the law’s] broad
language.” Id. (internal quotation marks omitted). See also
Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J.,
concurring) (“Arguments based on subsequent legislative
history . . .should not be taken seriously.”).
And the argument for ignoring subsequent inaction
is even stronger in this case than it was in Bostock.
See Revesz, supra, at 61. Unlike in Bostock, in which
the failed legislation would have expressly codified the
interpretation being challenged, here petitioners rely
on legislation that substantially differs from the Clean
Power Plan. Petitioners point to the Waxman-Markey bill,
H.R. 2454, 111th Cong. § 703 (2009), and other unenacted
climate bills concerning economy-wide carbon emissions
trading, renewable energy tax credits, and other matters
that are far broader than and distinct from EPA’s authority
to reduce greenhouse gas emissions from existing coalfired power plants. See W. Va. Br. 24–25; Westmoreland
Br. 31–32; Nat’l Mining Ass’n Br. 35–36.
In fact, when Congress considered legislation related
to the authority exerted in the Clean Power Plan, those bills
aimed to curtail that authority and failed. For instance,
Congress considered but failed to enact legislation that
would have prohibited EPA from regulating greenhouse
gas emissions, H.R. 910, 112th Cong. (2011), S. Amdt. 183
to S. 493, 112th Cong. (2011); regulating greenhouse gas
emissions from power plants unless they meet specified
requirements, H.R. 3826, 113th Cong. (2014); and finalizing
the Clean Power Plan as proposed, H.R. 5300, 113th Cong.
§ 2(b)(2) (2014). Congress also failed to enact legislation
that would have nullified the Clean Power Plan, as it could
not overcome a presidential veto. S.J. Res. 24, 114th Cong.
14
(2015). Thus, if subsequent legislative failures are at all
relevant, they undermine petitioners’ arguments.
Because Congress considers varied legislation on
many important issues, petitioners’ focus on congressional
attention to a broad topic (here, climate and energy)
is unworkable, see, e.g., W. Va. Br. 24; Nat’l Mining
Ass’n Br. 35. Over the past twenty years, Congress has
enacted roughly 5% of the over 125,000 bills introduced.
Bills by Final Status, GovTrack, https://www.govtrack.
us/congress/bills/statistics (last visited Jan. 4, 2022).
Enabling all of these bills to serve as a basis to invoke
the major questions doctrine would extend the doctrine
into nearly every area of public policy and create perverse
incentives. First, it would make legislators who support
a regulatory program reluctant to introduce related
legislation for fear of jeopardizing the program’s legality.
Second, it would make legislators who oppose a regulatory
program inclined to introduce legislation, regardless of its
chances at passage, so as to increase the likelihood that
the program would be struck down in court.
Petitioners’ effort to analogize to the legislative
backdrop in Brown & Williamson also fails. See
Westmoreland Br. 31. In that case, the defendant agency
made “consistent and repeated statements that it lacked
authority . . . to regulate tobacco,” and, in light of these
representations, Congress passed “tobacco-specific
statutes [that] effectively ratified the FDA’s long-held
position.” 529 U.S. at 144. Here, in contrast, EPA had not
disclaimed its authority to use the regulatory mechanisms
deployed in the Clean Power Plan prior to ACE, 8 nor
8. As detailed later in this brief, EPA had in fact previously
relied on generation-shifting approaches. Infra Sec. II.
15
did Congress enact legislation to ratify any such a
claim. Petitioners instead point to a series of tangential
legislative failures, but such an over-inclusive invocation
of legislative history defies this Court’s precedent and
would create an unmanageable standard.
C.
Public Salience Is a Problematic Consideration
Under the Major Questions Doctrine, as
Evidenced by Petitioners’ Various Unworkable
Indicators
Some petitioners argue that the Clean Power
Plan must have been a major rule because of its public
salience, presenting evidence such as the number of public
comments, intensity of litigation, presidential statements,
and public discourse concerning the rule. But none of
these criteria present a workable indicator to identify a
major question.
1.
The Volume of Public Comments Cannot
Be Indicative of a Major Question
A lthough petitioners highlight the number of
comments received on the Clean Power Plan, W. Va. Br.
25, this Court has never relied on that factor before. It
even noted in Brown & Williamson that the FDA rule at
issue had broken the agency’s comment record, 529 U.S.
at 126–27, yet did not rely on this fact in its analysis.
Such disregard is well-founded. For one, large numbers
of comments are not atypical in complex rulemakings—a
finding confirmed by the Senate Committee on Homeland
Security and Government Affairs, under then-Chairman
Rob Portman (R-Ohio). Staff of Permanent Subcomm. on
16
Investigations, 116th Cong., Abuses of the Federal Noticeand-Comment Rulemaking Process 5 (Comm. Print.
2019) (“Senate Report”). In 2017, for example, the Federal
Communications Commission received nearly 24 million
comments on the proposed repeal of its net neutrality rule.
Id. Without acknowledging the discrepancy, the Trump
administration argued that the Clean Power Plan’s 4.3
million comments were evidence of “political significance”
yet defended its net-neutrality repeal despite its far higher
number of comments. See Brunstein & Revesz, supra, at
20.
Moreover, the number of regulatory comments
cannot be a good measure of agency authority due to
the prevalence of mass comments, fraudulent or malattributed comments, and computer-generated comments.
Senate Report, supra, at 5–6. The Senate Report found
that of the almost 24 million comments submitted on the
net-neutrality rule, “nearly eight million comments came
from email addresses associated with fakemailgenerator.
com and more than 500,000 came from Russian email
addresses.” Id. at 19. The Senate Report further
documented the high volume of comments submitted
under the names of famous individuals including Donald
Trump, Barack Obama, LeBron James, and Elvis Presley.
Id. at 20. Furthermore, “[o]n nine different occasions,
more than 75,000 comments were dumped into the [net
neutrality] docket at the very same second,” indicating
that the comments were likely computer-generated. Steve
Balla et al., Mass, Computer-Generated, and Fraudulent
Comments 3 (June 1, 2021) (report to the Admin. Conf.
of the U.S.).
Focusing on the number of public comments received
would also create perverse incentives for opponents of
17
a regulation to execute mass-comment campaigns in
hopes of influencing a judicial outcome. Under petitioners’
proposed trigger, organizations would be rewarded for
generating as many comments as possible—regardless
of their substance or even whether they came from real
people.
2.
The Scale of Litigation Is Similarly
Unworkable and Would Produce Perverse
Incentives
Some petitioners also cite the litigation associated
with the Clean Power Plan as evidence of a major question,
W. Va. Br. 25, with one party counting the number of
total words briefed, hours argued, and lines captioned,
Nat’l Mining Ass’n Br. 37–38. But this factor is equally
problematic and unprecedented.
For one, litigation over the Clean Power Plan is hardly
an outlier. Many important regulations are challenged
and defended by large groups of state attorneys general,
advocacy organizations, and industry groups. See, e.g.,
Brunstein & Revesz, supra, at 27–28. For example, the
Department of Homeland Security’s 2019 regulation
defining “public charge” was challenged in nine lawsuits
by 21 states and numerous groups representing the
regulated community. See Public Charge Litigation, Ctr.
for Pub. Representation, https://medicaid.publicrep.org/
feature/public-charge-litigation/ (last updated Mar. 9,
2021). Yet this Court allowed that rule to stand, with a
concurrence emphasizing its extensive litigation. Dep’t
of Homeland Sec. v. New York, 140 S. Ct. 599, 599 (2020)
(Gorsuch, J., concurring).
18
Similarly, in Utility Air Regulatory Group v. EPA,
even though thirteen states were petitioners, fifteen states
were respondents, and several environmental and industry
groups intervened, this Court did not consider these
facts in its legal analysis. See 573 U.S. 302, 304–06, 324
(2014) (“UARG”). This was also the case in EPA v. EME
Homer City, where 23 states and numerous environmental
organizations and industry groups were involved in the
dispute. 572 U.S. 489, 493–94 (2013). Extending the
major questions doctrine to include this criterion would
perversely incentivize widespread litigation.
3.
Presidential Statements Highlighting the
Importance of Regulations Are Common,
and Fail to Distinguish the Clean Power
Plan
Petitioners next suggest that the Clean Power Plan
presents a major question because President Obama
touted the rule’s importance. See, e.g., Westmoreland Br.
30–31. Yet again, the Court has never relied on this factor.
Furthermore, plenty of rules that presidents boast about
do not create regulatory transformations. Presidents
have political reasons for trumpeting particular executive
actions—such as to demonstrate the benefits achieved
through their leadership, ensure their legacy, and bolster
efforts for reelection—and when they do so, they typically
highlight the action’s importance. Using presidential
statements of this sort to determine an agency’s authority
would “inject [this Court] into . . . heated partisan issues”
and turn it into an arbiter on how everyday politics is
conducted. Rucho, 139 S. Ct. at 2499 (internal quotation
marks omitted).
19
Indeed, presidents on both sides of the aisle routinely
emphasize the importance of their administration’s
achievements. For instance, President Trump described
the Department of Homeland Security’s Migrant
Protection Protocols as “historic policy changes to shut
down asylum fraud . . .[,] end[] a humanitarian crisis
and save[] countless lives.” Remarks on Border Wall
Construction and Immigration Reform Near Alamo,
Texas, 2021 Daily Comp. Pres. Doc. 14 (Jan. 12, 2021).
Nonetheless, this Court recently reinstated that policy,
indicating that a subsequent rollback was likely arbitrary
and capricious. Biden v. Texas, 210 L. Ed. 2d 1014, 1014
(Aug. 24, 2021).
Whether the president declares a rule important
has little bearing on whether it has in fact prompted
a regulatory transformation. For instance, despite
President Obama’s claims about the Clean Power Plan,
as described above EPA modeling conducted in 2019—
for the ACE rule petitioners now defend—found that the
regulation would have made no impact.
4.
Public Opinion and Discourse Is Difficult
to Measure, and Also Fails to Distinguish
the Clean Power Plan
Some petitioners also claim that the Clean Power
Plan presented a major question because climate change
is “at the very center of this Nation’s public discourse.”
W. Va. Br. 25–26 (internal quotation marks and citation
omitted). But once again, the petitioners fail to present any
workable metric to identify a question subject to profound
debate, and basing a key doctrine on such an amorphous
factor is “more likely to confuse than to clarify,” Conroy v.
Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).
20
Debate around the Clean Power Plan is not as
extensive as petitioners suggest. According to a 2017
survey from Yale University, “majorities of Americans
in all 50 states and 435 congressional districts support
setting strict carbon dioxide emission limits on coal-fired
power plants.” Poll: Majority in All States, Congressional
Districts Support Clean Power Plan, Yale School of the
Environment (Feb. 28, 2017), https://environment.yale.
edu/news/article/poll-majority-support-for-clean-powerplan-in-all-states-congressional-districts. Many issues
today—such as immigration, abortion, internet privacy,
tax policy, and LGBTQ rights—are subject to similar or
more extensive public debate, yet administrations of both
parties regulate in these areas. In fact, this Court recently
allowed one of the most salient immigration rules—the
“public charge rule”—to take effect. New York, 140 S.
Ct. 599.
Under petitioners’ standard, however, agencies would
not only be restricted from regulating on many topics,
but agency authority would wax and wane over time
with public attention. For instance, while environmental
regulation is now highly partisan, that was not always the
case, as evidenced by the overwhelming congressional
support for the Clean Air Act and its amendments.
Richard Schmalensee & Robert N. Stavins, Policy
Evolution Under the Clean Air Act 2–3, Resources for the
Future (Working Paper No. 18-27, 2018), https://media.rff.
org/documents/RFF20WP-18-2720dc.pdf. The implication
of petitioners’ argument is therefore that EPA now lacks
authority that it once had. But this conclusion cannot
be squared with statutory language and congressional
intent, and would place the courts in the uncomfortable
(and untenable) position of determining what quantum
21
of public attention is sufficient to divest an agency of a
previously held power.
Such a standard would also incentivize efforts to
deepen political polarization and run opposition campaigns.
As evidenced by this very case, challengers could use
their public-relations campaigns as purported evidence
of broad opposition. See Brunstein & Revesz, supra, at
28–29 (describing public-facing campaign against the
Clean Power Plan aimed at influencing litigation).
***
The factors that petitioners propose do not ascertain
whether an agency has achieved “a fundamental revision
of the statute,” MCI Telecommunications Corp. v. Am.
Tel. & Tel. Co., 512 U.S. 218, 231 (1994), but instead would
confuse the major questions analysis and place this Court
in the uncomfortable role of arbitrating political disputes.
In fact, the very factors that petitioners emphasize fail to
distinguish the Clean Power Plan from many other rules
promulgated under both parties, including ones that this
Court upheld.
II. EPA’s Past Reliance on Flexible Compliance
Mechanisms, Including Generation Shifting,
Under Administrations of Both Parties, Belies
Petitioners’ Claims That the Clean Power Plan’s
Novelty Triggers the Major Questions Doctrine
Petitioners and their amici claim that “EPA did not
use Section 111(d) before the [Clean Power Plan] to require
measures other than on-the-scene technologies,” W. Va.
Br. 22, including “decreased utilization of individual
22
sources or ‘shifting’ production away from individual
sources,” Westmoreland Br. 9. These assertions rewrite
regulatory history.
For one, since the Trump administration concluded in
ACE that market forces alone would have shifted energy
production and the Clean Power Plan would have made
“no difference” itself, J.A. 1672–73, petitioners’ claims
about the Clean Power Plan’s effects are inconsistent
with the record. Moreover, even if the agency’s sincedisclaimed 2015 projections remained relevant, under
both Section 111(d) and related Clean Air Act provisions,
EPA has often—under administrations of both political
parties—set the stringency of standards on the basis of
generation shifting and other controls that extend beyond
the fenceline of an individual facility. Thus, contrary to
petitioners’ claims, the Clean Power Plan did not assert
a “transformative expansion” of the Clean Air Act,
Westmoreland Br. 26 (quoting UARG, 573 U.S. at 324).
A.
EPA Has Previously Set the Stringency of
Section 111(d) Standards Based on the Use of
Generation Shifting and Emissions Trading
Under the George W. Bush administration, EPA
promulgated the Clean Air Mercury Rule (“2005 Mercury
Rule”) under Section 111(d). 70 Fed. Reg. 28,606 (May
18, 2005). That rule, which set statewide targets for
mercury emissions from coal-fired generating units, not
only allowed for intersource and interstate trading of
emission allowances, but identified such trading as part
of the “best system of emissions reduction” for the source
category. Id. at 28,617. By its very nature, an emissions
trading system reaches beyond the fencelines of individual
23
plants, allowing a group of regulated sources to apportion
a collective reduction burden among themselves based on
their relative costs of abatement.
Petitioners attempt to distinguish the 2005 Mercury
Rule from the Clean Power Plan by arguing that the
former’s stringency was “derived from inside-thefenceline control technology available at the time” and
did not necessitate use of allowance trading or generation
shifting. W. Va. Br. 22 (internal citation omitted). But the
2005 Mercury Rule reveals otherwise. In promulgating
that rule, EPA never suggested that every affected source
would or could, at reasonable cost, comply with that rule
solely through technological controls. Instead, it explained
that units for which it was “not cost effective to install
controls” would “use other approaches for compliance
including buying allowances, switching fuels, or making
dispatch changes [i.e., generation shifting].” 70 Fed. Reg.
at 28,619 (emphasis added). In other words, EPA based
the stringency of its “best system of emission reduction”
under Section 111(d) on the premise that higher-polluting
facilities would reduce generation. And numerous
petitioners in this case, who now allege that the use of
generation shifting is unlawful, in fact defended the 2005
Mercury Rule in litigation, including its trading program.
Joint Brief of State Respondent-Intervenors, Industry
Respondent-Intervenors, and State Amicus at 26, New
Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (No. 05-1097).
Though the 2005 Mercury Rule was ultimately
vacated by the D.C. Circuit, the reversal was on grounds
wholly unrelated to generation shifting or the stringency
of the rule’s emission budgets. New Jersey, 517 F.3d
574. Moreover, alongside the 2005 Mercury Rule, EPA
24
amended the Section 111 implementing regulations to
provide that a state’s “[e]mission standards [may] be
based on an allowance system.” 70 Fed. Reg. at 28,649.
That language remains in place. 40 C.F.R. § 60.24(b)(1).
Accordingly, petitioners’ argument that the Clean Power
Plan represented a novel interpretation of Section 111(d)
falls flat.
B. EPA Has Previously Set the Stringency
of Standards Under Other Clean Air Act
Provisions Based on Generation Shifting and
Emissions Trading
EPA has also relied on generation shifting and other
beyond-the-fenceline compliance measures when setting
emission limits under other Clean Air Act provisions,
resulting in stricter standards than would be achievable
through technological improvements alone. Some of
those provisions, like Section 111(d), do not expressly
address such measures, contradicting petitioners’
claim that Congress always “says so directly” when it
“wants an industry or source to hit an emission target”
through “outside-the-fenceline measures.” W. Va. Br. 42.
Furthermore, several of the provisions under which EPA
has previously regulated in this fashion are related to
Section 111(d) or employ similar language.
Specifically, EPA has set standards based on
generation shifting and other beyond-the-source
approaches under the following Clean Air Act provisions:
Good Neighbor Provision, Section 110(a): Under
the Good Neighbor Provision, which limits interstate
pollution from stationary sources, 42 U.S.C. § 7410(a)
25
(2)(D)(i)(I), EPA has consistently relied on generation
shifting and other beyond-the-fenceline measures in
setting pollution standards. In five rulemakings, EPA
established statewide emission budgets for the power
sector and crafted trading mechanisms for states to meet
their budgets: the Clinton administration’s 1998 NOx SIP
Call, 63 Fed. Reg. 57,356, 57,358–59 (Oct. 27, 1998); the
George W. Bush administration’s Clean Air Interstate
Rule, 70 Fed. Reg. 25,162, 25,162, 25,229 (May 12, 2005);
the Obama administration’s 2011 Cross-State Air Pollution
Rule (“Transport Rule”), 76 Fed. Reg. 48,208, 48,210–11
(Aug. 8, 2011) and 2016 Cross-State Air Pollution Rule
Update, 81 Fed. Reg. 74,504, 74,508–09 (Oct. 26, 2016);9
and the Biden administration’s 2021 Update, 86 Fed. Reg.
23,054 (Apr. 30, 2021). These precedents are particularly
relevant because Section 111(d) directs EPA to follow “a
procedure similar to that provided by section 110” when
working with states to set standards for existing sources.
42 U.S.C. § 7411(d)(1).
In establishing emission budgets under its Section
110(a) rules, EPA has explicitly accounted for generation
shifting. For example, in the Transport Rule, which this
Court upheld as a “workable[] and equitable interpretation
of the Good Neighbor Provision,” EME Homer City, 572
U.S. at 524, the agency concluded that requiring “direct
control[s]” at individual sources “would result in fewer
emission reductions and higher costs compared to [a
trading-based approach],” 76 Fed. Reg. at 48,272–73.
EPA accordingly set budgets with which it expected
regulated plants to comply by “increas[ing] dispatch
9. The D.C. Circuit remanded the 2016 Update on unrelated
grounds. Wisconsin v. EPA, 938 F.3d 303, 336 (D.C. Cir. 2019).
26
from lower-sulfur-emitting units as well as from natural
gas-fired generators.” Id. at 48,279; accord id. at 48,280
(anticipating “generation shifting from higher emitting
units to lower emitting units” as a compliance strategy).
In other words, EPA premised its standard on the
expectation of generation shifting from coal to natural gas.
EPA has followed a similar approach in more recent
Section 110(a) regulations. In its latest update, which was
proposed under the Trump administration, the agency
continued to rely on a trading program in setting emission
standards, expecting sources to comply in part by
“[s]hifting generation to lower [nitrous oxide]-emitting or
zero-emitting [electricity generating units].” 85 Fed. Reg.
68,964, 68,992 (Oct. 30, 2020). EPA finalized that standard
in early 2021. 86 Fed. Reg. 23,054 (Apr. 30, 2021).
Mobile Source Provisions, Sections 202 and 211: For
forty years, EPA has consistently set emission standards
under Section 202, which governs new motor vehicles and
motor-vehicle engines, based on averaging, banking, and
trading. See, e.g., 48 Fed. Reg. 33,456 (July 21, 1983). This
approach “is an integral part of the standard setting itself
. . . allowing EPA to set a standard that is numerically
more stringent” than it would through technological
controls on individual automobiles or fleets. 77 Fed. Reg.
62,624, 62,788 (Oct. 15, 2012); accord 72 Fed. Reg. 8428,
8431 (Feb. 26, 2007) (explaining that use of averaging,
banking, and trading “allows us to set a numerically
more stringent . . . standard than would otherwise be
achievable”). Additionally, EPA has acknowledged that
mobile-source standards are effectively predicated on
the notion that manufacturers will comply, at least in
part, by shifting sector-wide production to lower-emitting
27
automobiles such as through “increased electrification of
the fleet.” 77 Fed. Reg. 62,624, 62,631 (Oct. 15, 2012).
Section 202 is particularly instructive for EPA’s
regulation under Section 111(d) because it also calls
for certain standards to “reflect the greatest degree of
emission reduction achievable through the application
of technology.” 42 U.S.C. § 7521(a)(3)(A)(i). The fact that
“[a]veraging, [b]anking, and [t]rading . . . of emissions
credits”—and, consequently, production shifting—“have
been an important part of many EPA mobile source
programs” for decades, over numerous presidential
administrations of both parties, 76 Fed. Reg. 57,106, 57,238
(Sept. 15, 2011), undercuts the argument that the word
“application,” which also appears in Section 111, requires
emission reductions “performable by the existing source
on its own,” N. Am. Coal Br. 15. The D.C. Circuit upheld
the fleet-wide approach as a permissible interpretation of
Section 202, finding that the provision is “[l]acking any
. . . prohibition of averaging.” Nat. Res. Def. Council v.
Thomas, 805 F.2d 410, 425 (D.C. Cir. 1986).
EPA has also designed standards for motor-vehicle
fuels under Section 211, 42 U.S.C. § 7545, to be met
sector-wide. For example, in 1982, during the Reagan
administration, EPA promulgated a standard for the
lead content of gasoline that some refineries could satisfy
only by obtaining lead credits from others. 47 Fed. Reg.
49,322, 49,324 (Oct. 29, 1982). The D.C. Circuit upheld that
approach. Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 535–36 (D.C. Cir. 1983).
New Source Performance Standards, Section
111(b): EPA has also based emission standards under
28
Section 111(b) on f lexible averaging, banking, and
trading mechanisms that shift production. Under new
source performance standards promulgated during the
George W. Bush administration for certain stationary
internal combustion engines, manufacturers can generate
“emission credits” tied to “production volumes,” 71
Fed. Reg. 39,154, 39,185 (July 11, 2006), meaning that
the standards can be achieved not just by decreasing
the emissions rate of any given engine type, but also
by adjusting the production balance between engines
that emit above and below the standards. EPA deemed
the averaging, banking, and trading mechanisms that
enable this production shifting “essential elements in
[its] determination that the final standards reflect best
[demonstrated technology]” because they “allow[] the
manufacturer to adjust its compliance for engine families
for which coming into compliance with the standards will
be particularly difficult or costly, without special delays
or exceptions having to be written into the final rule.” Id.
at 39,159. In other words, the availability of production
shifting as a compliance mechanism was essential to
EPA’s determination of the standards’ stringency. EPA
subsequently included similar averaging, banking, and
trading provisions in new source performance standards
for stationary spark ignition internal combustion engines.
73 Fed. Reg. 3568, 3595 (Jan. 18, 2008).
Thus, petitioners’ claims that EPA has never used
a “system-wide approach” for 111(b) standards are
unfounded. N. Am. Coal Br. 46. And because Sections
111(d) and 111(b) rely on the same definition of a “standard
of performance” achievable through the “best system
of emission reduction,” 42 U.S.C. § 7411(a)(1), EPA’s use
of such an approach under Section 111(b) for more than
29
fifteen years—over four presidential administrations—is
particularly telling.
***
As these precedents illustrate, the Clean Power Plan
applied established mechanisms that EPA has used for
decades under administrations of both parties. Moreover,
even where EPA has not expressly tied the stringency
of emission standards to generation shifting, shifts in
the generation mix are an inevitable consequence of any
regulations requiring significant emission reductions
from the power sector. See Power Companies Br. 37–38.
These longstanding practices contradict the claim that
EPA exerted an “unheralded power” in promulgating the
Clean Power Plan. Westmoreland Br. 2 (quoting UARG,
573 U.S. at 324).
III. Section 111(d) Is Not an Afterthought, as Petitioners
Claim in Their Major Questions Analysis, But a Key
Component of the Clean Air Act’s Comprehensive
Approach to Regulating Pollution
In arguing that the major questions doctrine should
apply, petitioners and their amici dismiss Section 111(d)
as a “marginal” and “ancillary” provision “[t]ucked away
in a dusty corner” of the statute. N. Am. Coal Br. 1. But
both the legislative and regulatory history of Section
111(d) rebut petitioners’ characterization of the provision
as an “all-but-forgotten backwater,” Westmoreland Br. 1.
In particular, petitioners and their amici point to
congressional statements that Section 111(d) should
serve as a “gap-filler” as an indicator of the provision’s
30
insignificance. E.g., Cato Inst. Br. 2–3. Congress did not
presume, however, that the gaps filled by Section 111(d)
would be unimportant. On the contrary, it designed the
provision to address “significant danger[s] to public health
and welfare” that were not covered by other statutory
programs. See S. Rep. No. 91-1196, at 20 (1970).10 The
lead drafters of the 1970 legislation affirmed the essential
nature of Section 111(d), emphasizing that its inclusion in
the statute reflected a desire to give EPA flexibility to
limit pollutants that do not neatly fit into other regulated
categories through a mechanism similar to that provided
by Section 110. Brief of Leon G. Billings and Thomas
C. Jorling as Amici Curiae in Support of Respondents
at 22–23, West Virginia v. EPA, No. 15-1363 (D.C. Cir.
dismissed Sept. 17, 2019).
EPA’s prior interpretations and use of Section
111(d) further demonstrate its important role. See NonGov’t Org. & Trade Assoc. Br. 9. In 1975, reasonably
contemporaneous with the passage of the statute, EPA
issued a regulation on appropriate procedures and
requirements for stationary sources regulated under
Section 111(d). 40 Fed. Reg. 53,340 (Nov. 17, 1975). The
agency explained that the Clean Air Act addressed “three
general categories of pollutants emitted from stationary
sources”: criteria, which are regulated under Sections
108–110; hazardous, which are regulated under Section
112; and “pollutants that are (or may be) harmful to public
health or welfare but are not or cannot be controlled
10. Before reconciliation with the House, the requirements
under Section 111(d) were in Section 114. The core substantive
requirements of Section 114 did not change after it was moved to
Section 111(d).
31
under sections 108–110 or 112.” Id. This third category
of pollutants was to be regulated through Section 111(d),
which required “control of existing sources of such
pollutants whenever standards of performance (for those
pollutants) are established under Section 111(b) for new
sources of the same type.” Id. EPA further described
Section 111(d) as part of a series of “drastic measures” that
would allow for “aggressive action” against air pollution.
Id. at 53,342–43.
Consistent with this vision, the Obama, George W.
Bush, Clinton, and Carter administrations relied on
Section 111(d) to control harmful air pollutants. See, e.g.,
61 Fed. Reg. 9905 (Mar. 12, 1996); 45 Fed. Reg. 26,294
(Apr. 17, 1980); 44 Fed. Reg. 29,828 (May 22, 1979); 42 Fed.
Reg. 55,796 (Oct. 18, 1977). Of particular note, EPA used
Section 111(d) to target methane, a potent greenhouse gas,
61 Fed. Reg. at 9912–14—belying petitioners’ claims that
Section 111(d) has been used only for “localized pollutants”
rather than “ubiquitous pollutants like carbon,” W. Va.
Br. 6.
And while petitioners’ amici claim that “global
warming was not even a concern discussed by Congress”
in 1970, CEI Br. 3, Congress in fact received extensive
testimony when crafting the Clean Air Act about emerging
research on the potential for air pollution to “threaten
irreversible atmospheric and climatic changes.” See 116
Cong. Rec. 32,901 (1970). Indeed, “awareness of and
concern about climate change appear extensively in the
legislative history accompanying the [Clean Air Act’s]
enactment, including in statements by congressional
leaders and other members [and] testimony by highranking administration officials and prominent scientific
32
experts.” Revesz, supra, at 34. Congress responded by
granting EPA authority to protect against harms to the
“climate.” See 42 U.S.C. § 7602(h). Thus, it is simply not
the case that lawmakers “could hardly have intended”
for EPA to regulate greenhouse gases under Section 111,
CEI Br. 3.
In fact, Congress recently and forcefully reiterated
its intent for Section 111(d) to cover greenhouse gases,
when lawmakers passed—and the President signed into
law—a Congressional Review Act resolution restoring
EPA’s 2015 regulation of methane emissions from the
oil and gas sector. See Pub. L. No. 117-23, 135 Stat. 295
(2021). Lawmakers expressed their concern that a repeal
of the Section 111(b) rule for new sources would have
the “enormously consequential” impact of “effectively
block[ing]” EPA from addressing more extensive methane
pollution from existing sources under Section 111(d).
H.R. Rep. No. 117-64, at 7–8 (2021). Congress has thus
recognized that Section 111(d) can serve as the basis for
“enormously consequential” regulation of greenhouse
gases.
In short, petitioners are incorrect in their major
questions analysis to describe Section 111(d) as an
unimportant section of the Clean Air Act. Congress
intended Section 111(d) to play an essential role in its
comprehensive framework of air-pollution control, and
EPA has, for decades, used the provision accordingly.
33
CONCLUSION
For the foregoing reasons, and those discussed in
respondents’ briefs, this Court should either dismiss
the petitions or affirm the judgment of the U.S. Court of
Appeals for the D.C. Circuit.
Respectfully submitted,
Richard L. Revesz
Counsel of Record
New York University
School of Law
40 Washington Square South
New York, New York 10012
(212) 998-6185
richard.revesz@nyu.edu
Jack Lienke
Rachel Rothschild
Max Sarinsky
Institute for Policy
Integrity
139 MacDougal Street,
3rd Floor
New York, New York 10012
(212) 992-8932
Counsel for Amicus Curiae
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