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
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------WEST VIRGINIA, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
---------------------------------♦--------------------------------On Writs Of Certiorari To The
United States Court Of Appeals
For The District Of Columbia Circuit
---------------------------------♦--------------------------------BRIEF OF 192 MEMBERS OF CONGRESS
AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
---------------------------------♦--------------------------------AGATHA M. COLE
Counsel of Record
MAX E. RODRIGUEZ
ALISON BOROCHOFF-PORTE
RAPHAEL JANOVE
ADAM POLLOCK
POLLOCK COHEN LLP
60 Broad Street, 24th Floor
New York, NY 10004
(212) 337-5361
agatha@pollockcohen.com
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
6
I.
THE CLEAN AIR ACT CONFERS
BROAD AUTHORITY ON THE EPA TO
REGULATE GREENHOUSE GAS EMISSIONS ........................................................
6
A. The text of Section 111(d) plainly authorizes the EPA to set standards for
air pollution from existing stationary
sources, such as greenhouse gas emissions from fossil fuel-fired power
plants ...................................................
9
B. Congress recently reaffirmed its intent to confer such authority on the
EPA under Section 111(d) of the Clean
Air Act .................................................. 12
C. This Court’s precedents further confirm the EPA’s authority to regulate
greenhouse gases pursuant to the
Clean Air Act ....................................... 14
II.
SUBSEQUENT LEGISLATIVE ENACTMENTS HAVE ONLY REINFORCED
THE BROAD REGULATORY AUTHORITY ORIGINALLY CONFERRED ON
THE EPA THROUGH THE CLEAN AIR
ACT ............................................................ 18
ii
TABLE OF CONTENTS—Continued
Page
III.
SUBSEQUENT LEGISLATIVE EFFORTS
TO REPEAL OR RESTRICT THE EPA’S
AUTHORITY TO REGULATE GREENHOUSE GASES THROUGH THE POLITICAL PROCESS HAVE FAILED .................. 23
CONCLUSION..................................................... 26
APPENDIX
List of Amici ......................................................... App. 1
iii
TABLE OF AUTHORITIES
Page
CASES
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008)............................................... 10
Am. Elec. Power Co. v. Conn.,
564 U.S. 410 (2011)......................................... 15, 16
Am. Lung Ass’n v. EPA,
985 F.3d 914 (D.C. Cir. 2021) ....................................3
Bostock v. Clayton Cty., Ga.,
___ U.S. ___, 140 S. Ct. 1731 (2020) .................. 11, 12
Branch v. Smith, 538 U.S. 254 (2003) ........................21
Cent. Bank of Denver v.
First Interstate Bank of Denver,
511 U.S. 164 (1994) .................................................23
Chamber of Com. of U.S. v. Whiting,
563 U.S. 582 (2011) .................................................11
Epic Sys. Corp. v. Lewis,
___ U.S. ___, 138 S. Ct. 1612 (2018) ........................21
FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120 (2000) ........................................................12
J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred Int’l, Inc.,
534 U.S. 124 (2001) .................................................21
Mass. v. EPA, 549 U.S. 497 (2007) ............ 12, 15, 16, 22
Nat’l Ass’n of Home Builders v.
Defenders of Wildlife,
551 U.S. 644 (2007) .................................................22
iv
TABLE OF AUTHORITIES—Continued
Page
Olijato Chapter of Navajo Tribe v. Train,
515 F.2d 654 (D.C. Cir. 1975) ..................................17
Reg’l Rail Reorganization Act Cases,
419 U.S. 102 (1974) .................................................22
Sierra Club v. Costle,
657 F.2d 298 (D.C. Cir. 1981) ..................................17
Union Elec. Co. v. EPA, 427 U.S. 246 (1976).................7
United States v. Gonzales, 520 U.S. 1 (1997)..............11
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) ..................................... 15, 16, 17
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ............................................. 9, 12
STATUTES AND REGULATIONS
5 U.S.C. § 801 ..............................................................13
23 U.S.C. § 149 ............................................................20
42 U.S.C. § 16091 ........................................................20
42 U.S.C. §§ 7401–7671q .................................... passim
42 U.S.C. § 7401 ............................................................6
42 U.S.C. §§ 7408-7410 .................................................7
42 U.S.C. § 7411 .................................................. passim
42 U.S.C. § 7412 ............................................................7
42 U.S.C. § 7521 ..........................................................15
40 Fed. Reg. 53,340 (Nov. 17, 1975) ..............................7
80 Fed. Reg. 64,662 (Oct. 23, 2015) ..............................3
v
TABLE OF AUTHORITIES—Continued
Page
84 Fed. Reg. 32,520 (July 8, 2019) ................................3
85 Fed. Reg. 57,018 (Sept. 14, 2020)...........................13
OTHER AUTHORITIES
167 Cong. Rec. S2283 (daily ed. Apr. 28, 2021) ..........14
Ann E. Carlson & Megan M. Herzog,
Text in Context: The Fate of Emergent
Climate Regulation After UARG and
EME Homer, 39 Harv. Envtl. L. Rev. 23
(2015) .......................................................................17
Antonin Scalia & Bryan A. Garner, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS
(2012) ................................................................... 9, 21
Diane Pamela Wood,
Coordinating the EPA, NEPA,
and the Clean Air Act,
52 Tex. L. Rev. 527 (1974) .........................................7
H.R. 3409, 112th Cong. (2012)....................................24
H.R. 3826, 113th Cong. (2014)....................................24
H.R. 4286, S. 2170, 113th Cong. (2014) ......................24
H.R. Rep. No. 91-1146 (1970), as reprinted in
1970 U.S.C.C.A.N. 5356 .............................................7
H.R. Rep. No. 117-64 (2021) .......................................14
H.R. 2, 113th Cong. (2014) .........................................24
Pub. L. No. 95-95, 91 Stat. 685 (1977).......................17
Pub. L. No. 115-123, 132 Stat. 64 (2018) .............. 18, 19
vi
TABLE OF AUTHORITIES—Continued
Page
Pub. L. No. 116-260, 134 Stat. 2243 (2020) .......... 18, 20
Pub. L. No. 117-23, 135 Stat. 295 (2021) ....................13
Pub. L. No. 117-58, 135 Stat. 429 (2021) .............. 18, 19
S. 1905, 113th Cong. (2014) ........................................24
S. 2199, 112th Cong. (2012) ........................................24
S. Amdt. 183 to S. 439, 112th Cong. (2011) ................24
S. Consideration of H.R. Conf. Rep. No. 91-1783,
1970 CAA Legis. Hist. at 130 (Dec. 17, 1970)...........8
S.J. Res. 24, 114th Cong. (2015) .................................25
S. Rep. No. 91-1196 (1970) ............................................8
Sanne H. Knudsen, Regulating Cumulative
Risk, 101 Minn. L. Rev. 2313 (2017) .........................6
The Obama Administration’s Clean Power Plan,
Republican Members of the Committee on
Energy and Commerce, U.S. House of Representatives, republicans-energycommerce.house.gov/
power-plan/ (last visited Jan. 21, 2022) ..................25
1
INTEREST OF AMICI CURIAE1
Amici are 192 currently-elected members of the
United States Senate and United States House of Representatives,2 who support the proper interpretation of
the Clean Air Act, 42 U.S.C. §§ 7401–7671q [hereinafter, “the Act” or “CAA”], as conferring broad authority
upon the Environmental Protection Agency (“EPA”) to
regulate emissions of greenhouse gases. Many of the
signatories either actively serve on, or have previously
served on, committees with jurisdiction over the CAA
and/or the EPA.
Based on their experience as members of Congress, amici understand the importance of relying on
the expert judgment of administrative agencies in
technical areas where scientific knowledge, regulatory
best practices, and market conditions continue to
evolve.
As explained herein, the 1970 Amendments conferred broad regulatory authority on the EPA to devise
and implement standards addressing both new and
existing sources of air pollution, and did so, in part,
through the addition of Section 111(d), 42 U.S.C.
§ 7411(d). As is relevant here, that provision broadly
authorizes the EPA to establish new regulatory
1
In accordance with Supreme Court Rule 37.6, amici curiae
state that neither the parties, nor their counsel, had any role in
authoring, nor made any monetary contribution to fund the preparation or submission of this brief. All parties, to the extent blanket consent was not already given, were timely notified and
consented to the filing of this brief.
2
A full listing of amici appears in the Appendix hereto.
2
“standards of performance” for “any existing sources of
air pollution” from stationary sources, for which “air
quality criteria have not been issued” pursuant to various other sections in the Act, 42 U.S.C. § 7411(d)(1).
Amici have a strong interest in the proper interpretation of this provision, insofar as it effectuates the
intent of Congress to ensure that the scope of EPA’s
authority under legislation as significant and consequential as the CAA would not be limited to addressing
only those pollutants that were known and specifically
identified in the enumerated provisions of the 1970
Amendments.
Accordingly, amici submit this brief to affirm that,
consistent with the plain text of Section 111(d)(1), 42
U.S.C. § 7411(d)(1), that provision was, indeed, intended to confer broad authority on the EPA to regulate and respond to both new and existing air
pollutants, as needed to carry out the stated purpose
of the CAA.
Finally, amici further submit this brief to address
various arguments raised by other members of Congress as amici in support of Petitioners. See Br. of
Amici Curiae 91 Members of Cong. (Dec. 20, 2021).
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
In 2015, to address the air pollution significantly
contributing to climate change, the EPA exercised its authority under Section 111(d)(1), 42 U.S.C. § 7411(d)(1), to
3
issue the Clean Power Plan, see Carbon Pollution
Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units, 80 Fed. Reg. 64,662
(Oct. 23, 2015). The Clean Power Plan was rescinded in
2019, through the implementation of the so-called
“ACE Rule,” see 84 Fed. Reg. 32,520 (July 8, 2019),
which was subsequently vacated by the U.S. Court of
Appeals for the D.C. Circuit. See Am. Lung Ass’n v.
EPA, 985 F.3d 914 (D.C. Cir. 2021).
Notwithstanding this complex procedural history,
the case that is presently before this Court concerns
neither the Clean Power Plan nor the subsequent ACE
Rule—but rather, the proper interpretation of a discrete provision in the CAA, and the scope of EPA’s authority to implement future regulations thereunder. To
that end, it is worth noting, at the outset, that this case
raises considerable justiciability issues arising from
what appears to be a request for a declaratory judgment on the precise intent of Congress with respect to
the scope of authority that it conferred upon the EPA
under Section 111(d)(1), 42 U.S.C. § 7411(d)(1). See
Non-Governmental Org. and Trade Ass’n Resp’ts Br.
23-31; Fed. Resp’ts Br. 23-31; Amicus Curiae Br. of
U.S. Sens. Sheldon Whitehouse, Richard Blumenthal,
Bernie Sanders, and Elizabeth Warren at 2-7 (Jan. 24,
2022). While the undersigned members of Congress
certainly share these concerns and hereby endorse the
view that this case should be dismissed as having been
improvidently granted—this brief only seeks to address the merits question before this Court.
4
The question presented before this Court essentially concerns the scope of EPA’s authority to regulate
existing sources of air pollution from stationary
sources like fossil fuel-fired power plants, as contemplated in Section 111(d)(1), 42 U.S.C. § 7411(d).
As explained herein, that provision plainly authorizes the EPA to regulate greenhouse gases through
what the agency determines to be the best system of
emissions limitation, subject to the statutory constraints imposed by Congress. Specifically, the text of
Section 111(d)(1), 42 U.S.C. § 7411(d)(1), authorizes the
EPA to regulate “any existing sources of air pollution”
for which “air quality criteria have not been issued”
pursuant to various other sections in the Act, 42 U.S.C.
§ 7411(d)(1), which plainly encompasses the implementation of regulatory standards for greenhouse gas
emissions from stationary sources, such as fossil fuelfired power plants, infra, at 9-12 (section I-A). And as
further set forth herein, the only other legislative enactment that has spoken directly to the purpose and
effect of this provision to date is a Congressional Disapproval Resolution that expressly refuted the Trump
Administration’s attempt to advance an artificially
narrow reading of Section 111(d)(1), 42 U.S.C.
§ 7411(d)(1), through a regulation about methane
emissions standards, infra 12-14 (section I-B). Moreover, this Court’s precedents further establish that
Section 111(d), 42 U.S.C. § 7411(d), must be read as
broadly authorizing the EPA to address new and evolving air pollution problems, including greenhouse gas
5
emissions from existing stationary sources, infra 14-18
(section I-C).
Contrary to the arguments advanced by the minority of those members of Congress who support the
repeal of Section 111(d), 42 U.S.C. § 7411(d), and who
filed a brief in support of the Petitioners for that reason—no other subsequent legislative enactments have
either expressly or by implication, curtailed the EPA’s
continuing authority to regulate air pollution from
stationary sources under that provision, infra 18-23
(section II).
Furthermore, to the extent that Petitioners and
their supporting amici seek to invoke the major questions doctrine as support for their artificially narrow
reading of Section 111(d), 42 U.S.C. § 7411(d), the legislative history of the CAA and the various unsuccessful efforts by certain members of Congress to repeal or
restrict the EPA’s broad authority thereunder, further
demonstrate the political process has functioned as it
should—and that the decisions of elected members of
Congress merely reflect the American public’s overwhelming support for sound public policy directed towards the regulation of greenhouse gases that
significantly contribute to climate change, infra 23-26
(section III). Having failed to achieve sufficient support
to ratify these changes through the legislative process,
Petitioners now turn to this Court, seeking what is
fundamentally a legislative and political end, through
judicial means. This Court should not reward this attempted end-run around the legislative process.
6
For these reasons, this Court should either dismiss
this case as having been improvidently granted, or
reaffirm, once again, that the text of the CAA plainly
authorizes the EPA to regulate greenhouse gas emissions—including those arising from existing stationary sources, such as fossil fuel-fired power plants—as
set forth in Section 111(d)(1), 42 U.S.C. § 7411(d)(1).
---------------------------------♦---------------------------------
ARGUMENT
I.
THE CLEAN AIR ACT CONFERS BROAD
AUTHORITY ON THE EPA TO REGULATE
GREENHOUSE GAS EMISSIONS.
The stated purpose of the Clean Air Act is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare
and the productive capacity of its population.” 42
U.S.C. § 7401(b)(1). This purpose was informed by the
Congressional finding in 1963, when the CAA was enacted, that the cumulative effects from “the growth in
the amount and complexity of air pollution brought
about by urbanization, industrial development, and
the increasing use of motor vehicles,” had already resulted in “mounting dangers to the public health and
welfare.” See Sanne H. Knudsen, Regulating Cumulative Risk, 101 Minn. L. Rev. 2313, 2326 (2017) (quoting
42 U.S.C. § 7401(a)(2)).
The statutory provision that is currently at issue
before this Court was added through the 1970 Amendments to the CAA, which sought to “speed up, expand,
7
and intensify the war against air pollution in the
United States.” H.R. Rep. No. 91-1146 (1970), as reprinted in 1970 U.S.C.C.A.N. 5356, 5356; see also Union Elec. Co. v. EPA, 427 U.S. 246, 256 (1976) (“the 1970
Amendments to the Clean Air Act were a drastic remedy to what was perceived as a serious and otherwise
uncheckable problem of air pollution”); Diane Pamela
Wood, Coordinating the EPA, NEPA, and the Clean Air
Act, 52 Tex. L. Rev. 527, 551 (1974) (explaining that
“Congress intended to expedite all procedures under
the Clean Air Act,” through the 1970 Amendments).
The 1970 Amendments to the CAA conferred broad
regulatory authority on the EPA to devise and implement standards addressing both new and existing
sources of air pollution, and did so, in part, through the
addition of Section 111, 42 U.S.C. § 7411.
As is relevant here, Section 111(d)(1) authorizes
the EPA to establish “standards of performance” for air
pollution that endangers public health or welfare from
existing stationary sources “for which air quality criteria have not been issued,” 42 U.S.C. § 7411(d)(1), under
the CAA provisions covering criteria pollutants (the
National Ambient Air Quality Standards Program), id.
§§ 7408-7410, and hazard pollutants (the National
Emission Standards for Hazardous Air Pollutants program), id. § 7412. See also State Plans for the Control
of Certain Pollutants from Existing Facilities, 40 Fed.
Reg. 53,340 (Nov. 17, 1975) (explaining that Section
111(d) covers air pollutants that “are (or may be)
harmful to public health or welfare but are not or cannot be controlled” under the other programs covering
8
standards of performance for existing stationary
sources).
As demonstrated by the legislative history of the
1970 Amendments, these changes were designed to ensure that there would be “no gaps in control activities
pertaining to stationary source emissions that pose
any significant danger to public health or welfare.” S.
Rep. No. 91-1196, at 20 (1970); see also id. at 4 (“this
bill would extend the Clean Air Act of 1963 as amended
in 1965, 1966, and 1967 to provide a much more intensive and comprehensive attack on air pollution”); S.
Consideration of H.R. Conf. Rep. No. 91-1783, 1970
CAA Legis. Hist. at 130 (Dec. 17, 1970) (statement of
Sen. Ed Muskie) (explaining, as the 1970 CAA Amendment’s lead Senate sponsor, that Section 111’s “system
of emission reduction” language authorizes the EPA to
develop standards “based on the latest available control technology, processes, operating methods, and
other alternatives”).
Simply put, Section 111(d), 42 U.S.C. § 7411(d), is
a critical provision that gives the EPA flexibility to set
standards addressing air pollution from existing stationary sources, including new and evolving air pollution threats like greenhouse gas emissions from power
plants.
9
A. The text of Section 111(d) plainly authorizes the EPA to set standards for
air pollution from existing stationary
sources, such as greenhouse gas emissions from fossil fuel-fired power plants.
Applying this Court’s precedents concerning basic
principles of statutory interpretation, the precise
meaning of Section 111(d), 42 U.S.C. § 7411(d), should
initially be guided by the plain text of that provision.
See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 471
(2001) (Scalia, J.) (“courts may choose only between
reasonably available interpretations of a text”); see
also Antonin Scalia & Bryan A. Garner, READING LAW:
THE INTERPRETATION OF LEGAL TEXTS 16 (2012) (“In
their full context, words mean what they conveyed to
reasonable people at the time they were written.”).
To that end, Section 111(d) provides that:
The Administrator shall prescribe regulations
which shall establish a procedure . . . under
which each State shall submit . . . a plan
which (A) establishes standards of performance for any existing source for any air
pollutant (i) for which air quality criteria have not been issued or which is not included [in criteria pollutant or hazardous
pollutant categories], . . . and (B) provides for
the implementation and enforcement of such
standards of performance.
42 U.S.C. § 7411(d)(1) (emphasis added).
10
The meaning of this provision is further elucidated by the following definitions:
The term “standard of performance”
means a standard for emissions of air pollutants which reflects the degree of emission
limitation achievable through the application
of the best system of emission reduction
which . . . the Administrator determines has
been adequately demonstrated.
The term “new source” means any stationary source, the construction or modification of
which is commenced after the publication of
regulations . . . prescribing a standard of performance under this section which will be applicable to such source.
The term “stationary source” means any
building, structure, facility, or installation
which emits or may emit any air pollutant . . .
...
The term “existing source” means any stationary source other than a new source.
Id. § 7411(a)(1)-(3), (6) (emphasis added).
This text does not demonstrate ambiguity or uncertainty. Rather, these definitions, read in combination with the text of Section 111(d) itself, explicitly
confer expansive authority on the Administrator of the
EPA to “establish[ ] . . . standards of performance for
any existing source for any air pollutant” from a stationary source, for which other applicable “air quality
criteria have not been issued.” Id. § 7411(d)(1); cf. Ali v.
Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008)
11
(Thomas, J.) (“We have previously noted that ‘[r]ead
naturally, the word “any” has an expansive meaning,
that is, “one or some indiscriminately of whatever
kind.” ’ ” (alteration in original) (quoting United States
v. Gonzales, 520 U.S. 1, 5 (1997))).
Petitioners and their amici may disagree with the
policy wisdom of Congress’s decision in 1970 to write
Section 111(d), 42 U.S.C. § 7411(d), broadly, or the
EPA’s decisions in 2015 about how to use it when
promulgating the Clean Power Plan, or even how they
speculate it may be used in the future. But those disagreements do not transform the clear into the ambiguous. “ ‘[T]he fact that [a statute] has been applied in
situations not expressly anticipated’ . . . does not
demonstrate ambiguity; instead, it simply ‘demonstrates [the] breadth’ of a legislative command.” Bostock v. Clayton Cty., Ga., ___ U.S. ___, 140 S. Ct. 1731,
1749 (2020) (Gorsuch, J.) (quoting Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 499 (1985)). Section 111(d), 42
U.S.C. § 7411(d), “means what it says” and “[t]here is
no basis in the text for limiting” it according to the policy preferences of Petitioners and their amici. Gonzales, 520 U.S. at 5; see also Chamber of Com. of U.S. v.
Whiting, 563 U.S. 582, 599 (2011) (Roberts, C.J.) (rejecting narrow textual interpretation where “no such limit
is remotely discernible in the statutory text”).
Petitioners and their amici’s attempt to breathe
ambiguity into the unambiguous is not persuasive.
Nor is their invocation of the major questions doctrine.
The major questions, or so-called “no-elephants-inmouseholes cannon,” Bostock, 140 S. Ct. at 1753,
12
“recognizes that Congress ‘does not alter the fundamental details of a regulatory scheme in vague terms
or ancillary provisions.’ ” Id. (quoting Whitman, 531
U.S. at 468). But Section 111(d), 42 U.S.C. § 7411(d), is
neither vague nor ancillary. It is a core part of the regulatory scheme concerning air pollution from stationary structures. In other words, the EPA’s authority
under Section 111(d) may well be “an elephant. But
where’s the mousehole?” Bostock, 140 S. Ct. at 1753.3
B. Congress recently reaffirmed its intent
to confer such authority on the EPA under Section 111(d) of the Clean Air Act.
The only other legislative enactment that speaks
directly to the scope of Section 111(d), 42 U.S.C.
§ 7411(d), is the Joint Resolution Providing for Congressional Disapproval under Chapter 8 of Title 5,
3
Amici respectfully submit that the major questions doctrine
is inapplicable in this case for several reasons. First, as explained
above, there is no need to consider the major questions doctrine
when the statutory text is unambiguous, as it is here. See Mass.
v. EPA, 549 U.S. 497, 529 (2007) (explaining the CAA is “unambiguous” and broadly defines “any air pollutant” to include greenhouse gas emissions). Second, no agency decision “of such
economic and political significance” would implicate the major
questions doctrine because the Clean Power Plan has been rescinded. FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000). Third, there is no “backdrop of the [agency’s] consistent and repeated statements that it lacked authority under
the [authorizing statute]” that might support a narrower textual
interpretation. Id. at 144; see also Mass., 549 U.S. at 530-32 (distinguishing application of major questions doctrine to Food, Drug
& Cosmetic Act in Brown & Williamson from application to CAA
in case at bar).
13
United States Code, of the Rule Submitted by the Environmental Protection Agency relating to “Oil and
Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review,” Pub. L. No.
117-23, 135 Stat. 295 (2021) [hereinafter, the “Congressional Disapproval Resolution”]. The Congressional
Disapproval Resolution further reinforces that Section
111(d), 42 U.S.C. § 7411(d), conferred broad statutory
authority on the EPA to regulate greenhouse gases
from existing stationary sources.
On June 30, 2021, the President signed into law
this joint resolution of Congress, adopted by a bipartisan vote pursuant to the Congressional Review Act,
disapproving a 2020 regulation promulgated by the
EPA. See Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources
Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) [hereinafter, the “Methane Rescission Rule”]. The Methane Rescission Rule, among other things, concluded that
“EPA is not authorized to promulgate CAA section
111(d) guidelines for existing sources” of methane.
Methane Rescission Rule, 85 Fed. Reg. at 57,033. A
regulation for which Congress adopts a resolution of
disapproval under the Congressional Review Act “shall
be treated as though such rule had never taken effect.”
5 U.S.C. § 801(f )(2).
Through the Congressional Disapproval Resolution, Congress expressly rebuked the artificially narrow and incorrect interpretation of the EPA’s authority
under Section 111(d), 42 U.S.C. § 7411(d), that Petitioners now seek to advance in this case. To the extent
14
there is any doubt about the intended purpose of the
Congressional Disapproval Resolution, the legislative
history confirms that it was enacted to, inter alia, clarify the “EPA’s statutory obligation to regulate existing
oil and gas sources under Section 111(d). . . . ” H.R.
Rep. No. 117–64, at 4 (2021); see also 167 Cong. Rec.
S2283 (daily ed. Apr. 28, 2021) (joint statement of Sens.
Charles Schumer, Tom Carper, Martin Heinrich, Angus
King, Edward Markey) (“In rejecting the methane rescission rule’s misguided legal interpretations, the
resolution clarifies our intent that EPA should regulate methane and other pollution emissions from all
oil and gas sources, including production, processing,
transmission, and storage segments under authority of
section 111 of the Clean Air Act.”); id. (“In addition, we
intend that section 111 of the Clean Air Act obligates
and provides EPA with the legal authority to regulate
existing sources of methane emissions in all of these
segments.”).
In sum, through the Congressional Disapproval
Resolution, Congress spoke again to affirm that Section
111’s scope includes authority for the EPA to regulate
greenhouse gas emissions from stationary sources.
C. This Court’s precedents further confirm
the EPA’s authority to regulate greenhouse gases pursuant to the Clean Air
Act.
This Court’s precedents further confirm that Section 111(d), 42 U.S.C. § 7411(d), must be read as
15
broadly authorizing the EPA to address new and evolving air pollution problems, including greenhouse gas
emissions from existing stationary sources. Indeed,
this Court has repeatedly affirmed the scope of the
EPA’s authority to regulate greenhouse gases pursuant to its authorities under the CAA. See, e.g., Util. Air
Regulatory Grp. v. EPA, 573 U.S. 302 (2014) [hereinafter, “UARG”]; Am. Elec. Power Co. v. Conn., 564 U.S. 410
(2011) [hereinafter, “AEP”]; Mass., 549 U.S. 497.
This Court first recognized that the CAA authorizes EPA to regulate greenhouse gases in Massachusetts v. EPA, which held that the use of the phrase “air
pollutant,” as used in 42 U.S.C. § 7521(a)(1), “unquestionably” and “unambiguous[ly]” encompasses greenhouse gases, which Congress specifically sought to
address through its passage of the 1970 Amendments.
Mass., 549 U.S. at 506, 529 n.26, 532. This Court further explained that the CAA uses broad language to
“confer the flexibility necessary to forestall . . . obsolescence.” Id. at 532 (observing that “without regulatory
flexibility, changing circumstances and scientific developments would soon render the [CAA] obsolete”).
In AEP, the scope of the EPA’s authority to regulate greenhouse gas emissions under the CAA was
again before this Court. 564 U.S. 410. This Court explained that “Congress [had] delegated to EPA the decision [of ] whether and how to regulate carbon-dioxide
emissions from powerplants” under the CAA, id. at
426, and acknowledged the common-sense rationale
for doing so. As this Court further explained: “[t]he
appropriate amount of regulation in any particular
16
greenhouse gas-producing sector cannot be prescribed
in a vacuum: As with other questions of national or international policy, informed assessment of competing
interests is required,” and “[t]he Clean Air Act entrusts
such complex balancing to EPA in the first instance, in
combination with state regulators.” Id. at 427; see also
id. at 428 (“It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to
serve as primary regulator of greenhouse gas emissions.”). Moreover, this Court’s decision in AEP pointed
specifically to Section 111, 42 U.S.C. § 7411, as a provision that “speaks directly to emissions of carbon dioxide from . . . [power] plants.” Id. at 424.
Finally, in UARG, this Court again confirmed that
Massachusetts v. EPA is settled law. In validating the
EPA’s interpretation of the CAA to require that certain
standards apply to greenhouse gases emitted from socalled “anyway” sources—facilities otherwise subject
to a specific type of review and permitting—seven
members of this Court rejected petitioners’ “urge[s]”
that the Court disallow the EPA from ever requiring
certain pollution control methods for greenhouse
gases. See UARG, 573 U.S. at 329, 331-32. This Court
reaffirmed the EPA’s authority to interpret the CAA’s
provisions as applying to greenhouse gas emissions
from stationary sources. See id. at 334 (holding that
“EPA may . . . continue to treat greenhouse gases as a
‘pollutant subject to regulation under this chapter [of
the CAA]’ for” stationary sources of greenhouse gases
that were already subject to relevant CAA program
regulations).
17
Here, as in UARG, “[w]e are not talking about extending EPA jurisdiction over millions of previously
unregulated entities, but [rather,] about . . . the demands EPA (or a state permitting authority) can make
of entities already subject to its regulation.” UARG,
573 U.S. at 332;4 see also Ann E. Carlson & Megan M.
Herzog, Text in Context: The Fate of Emergent Climate
Regulation After UARG and EME Homer, 39 Harv.
Envtl. L. Rev. 23, 33 (2015) (“Section 111(d) contains
broad grants of authority. . . . Moreover, adding a layer
of regulation to the power sector is far from a significant expansion of regulatory authority into a previously unregulated sector of the economy, as was at
4
To the extent that UARG separately held that the EPA had
exceeded its statutory authority by interpreting the CAA as imposing “the PSD and Title V permitting requirements . . . to all
stationary sources with the potential to emit greenhouse gases in
excess of the statutory thresholds . . . ,” UARG, 573 U.S. at 310,
amici note that: (1) neither the PSD nor Title V programs are implicated by the ACE Rule (nor, to the extent it is even at issue,
the Clean Power Plan); and (2) in this case, Section 111 applies
only to categories of stationary sources the EPA determines
“cause[ ], or contribute[ ] significantly to, air pollution which may
reasonably be anticipated to endanger public health or welfare.”
42 U.S.C. § 7411(b). “Source categories,” including power plants,
have been subject to regulation (and related litigation) under the
CAA—and Section 111 in particular—for decades. See, e.g., Sierra
Club v. Costle, 657 F.2d 298, 318 (D.C. Cir. 1981); Olijato Chapter
of Navajo Tribe v. Train, 515 F.2d 654, 656-57 (D.C. Cir. 1975),
superseded by statute on other grounds, Pub. L. No. 95-95,
§ 305(c)(3), 91 Stat. 685 (1977); cf. UARG, 573 U.S. at 328 (noting
that the PSD and Title V programs, as the EPA read the CAA at
the time, would create “newfound authority to regulate millions
of small sources”).
18
issue in UARG. . . . Power plants have been subjects of
CAA regulation since the CAA’s inception.”).
Accordingly, Petitioners’ artificially narrow reading of Section 111(d), 42 U.S.C. § 7411(d), is not only
belied by the plain text of the statute but is also irreconcilable with this Court’s prior precedents.
II.
SUBSEQUENT LEGISLATIVE ENACTMENTS
HAVE ONLY REINFORCED THE BROAD
REGULATORY AUTHORITY ORIGINALLY
CONFERRED ON THE EPA THROUGH THE
CLEAN AIR ACT.
The 91 members of Congress that support Petitioners in this case seek to suggest that the passage of
subsequent legislation on greenhouse gas emissions
somehow evinces the intent of Congress to weaken or
implicitly repeal the EPA’s scope of authority under
Section 111(d), 42 U.S.C. § 7411(d). See 91 Members Br.
at 13-19.
Specifically, those members point to the FUTURE
Act of 2018, Pub. L. No. 115-123, 132 Stat. 64, 162–68
(2018), the Consolidated Appropriations Act of 2021,
Pub. L. No. 116-260, 134 Stat. 2243 (2021), and the
Infrastructure Investment and Jobs Act of 2021, Pub.
L. No. 117-58, 135 Stat. 429 (2021),5 as examples of
5
Among other provisions, the Infrastructure Investment
and Jobs Act made substantial investments that could have an
enormous influence on the mix and environmental impact of
power generation sources in the United States. See Pub. L. No.
117-58, § 40323 ($6 billion for nuclear power plant operations); (2)
19
legislation that have specifically targeted greenhouse
gases, and attempt to characterize these subsequent
enactments as evidence that Congress did not intend
for the EPA to continue exercising its authority to regulate greenhouse gases under the CAA. That is simply
not how legislation works.6
id. § 41004 ($3.5 billion for carbon capture demonstration projects); (3) id. § 40314 ($8 billion for clean hydrogen hubs); id.
§§ 40101-40127 (new program, including $5 billion in grants, to
modernize the electrical grid).
This Court should not circumvent the plain text to unnecessarily narrow the EPA’s statutory authority before the agency has
even had an opportunity to develop and promulgate any new regulations pursuant to Section 111(d) it might consider in light of
these additional tools and investments. Substantial new investments in, inter alia, nuclear power, carbon capture and sequestration, hydrogen power, and electrical grid modernization over
the next several years will likely have a material impact on the
EPA’s analysis of the economic impact and national energy necessity of fossil fuel-based power sources that can be regulated under
Section 111(d). If some justiciable dispute arises from future regulations, those issues can be litigated at the appropriate time
when there has been a complete rulemaking process.
6
While Congress has enacted additional laws designed to
specifically reduce the proliferation of greenhouse gas emissions
in the United States, none of those provisions have sought to
curtail, either expressly or by implication, the EPA’s continuing
authority to regulate greenhouse gases, pursuant to various provisions of the CAA.
For example, the FUTURE Act references the CAA only by
adopting its definition of “lifecycle greenhouse gas emissions,”
Pub. L. No. 115-123, § 45Q(f )(3)(B)(ii), and does not create any
competing duties concerning the creation of air pollution standards for existing stationary sources not otherwise regulated by
the CAA.
Similarly, the Infrastructure Investment and Jobs Act only
refers to the CAA to incorporate relevant statutory definitions
20
As an initial matter, this argument misapplies the
“implied repeal” doctrine. It also fundamentally misconstrues the duty of Congress to consider and adopt
multi-faceted approaches to complex policy problems.
Congress has done exactly that to address a complex
challenge like climate change, giving federal agencies,
states, municipalities, and the private sector a combination of authorities, appropriations, incentives, and
duties that help to solve the problem.
To the extent the Congressional amici supporting
Petitioners seek to invoke the doctrine of implied repeal, they have plainly failed to meet their “heavy burden of showing ‘a clearly expressed congressional
and standards therefrom. See Pub. L. No. 116-260,
§ 11115(1)(C)(II) (amending 23 U.S.C. § 149 to include the definition of motor vehicles from “section 216 of the Clean Air Act”); id.
§ 11516(b)(4) (incorporating “national ambient air quality standards under section 109 of the Clean Air Act” into reports Congress will require of the Comptroller General of the United
States); id. § 71101 (amending 42 U.S.C. § 16091 to incorporate
“[a]ny air pollutant . . . listed pursuant to section 108(a) of the
Clean Air Act” into the Energy Policy Act of 2005).
And finally, the Consolidated Appropriations Act of 2021,
Pub. L. No. 116-260, directed the EPA to create an incentive program directed towards the development and implementation of
carbon sequestration technologies, id., Division S § 102, and expanded the EPA’s authority to regulate hydrofluorocarbons used
in manufacturing processes, id., Division S § 103, making clear it
was only amending “[s]ections 113, 114, 304, and 307 of the Clean
Air Act,” id., Division S § 103, but did not amend or otherwise
implicate any of the language contained in Section 111. Finally,
the Consolidated Appropriations Act of 2021 made several
amendments to the Energy Policy Act to improve research and
incentives related to emissions reduction, id., Division Z, Title IV,
VI.
21
intention’ that” the prior statute was impliedly repealed. Epic Sys. Corp. v. Lewis, ___ U.S. ___, 138 S. Ct.
1612, 1624 (2018) (quoting Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533
(1995)). Moreover, it is well-established that “[w]hen
confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at ‘liberty to
pick and choose among congressional enactments’ and
must instead strive ‘to give effect to both.’ ” Epic Sys.,
138 S. Ct. at 1624 (quoting Morton v. Mancari, 417 U.S.
535, 551 (1974)).
This Court has “repeatedly stated . . . that absent
‘a clearly expressed congressional intention,’ . . . [a]n
implied repeal will only be found where provisions in
two statutes are in ‘irreconcilable conflict,’ or where the
latter Act covers the whole subject of the earlier one
and ‘is clearly intended as a substitute.’ ” Branch v.
Smith, 538 U.S. 254, 273 (2003) (plurality op.) (quoting
Morton v. Mancari, 417 U.S. 535, 551 (1974)); see also
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534
U.S. 124, 142 (2001) (“The rarity with which [the Court
has] discovered implied repeals is due to the relatively
stringent standard for such findings, namely that
there be an irreconcilable conflict between the two federal statutes at issue.” (alteration in original) (quoting
Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S.
367, 381 (1996))); Scalia & Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS, at 327 (“Repeals by
implication are disfavored. . . . But a provision that
flatly contradicts an earlier-enacted provision repeals
it.”).
22
Implied amendments of prior statutes “are no
more favored than implied repeals.” Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644,
664 n.8 (2007); see also, e.g., Reg’l Rail Reorganization
Act Cases, 419 U.S. 102, 134 (1974) (“ ‘A new statute
will not be read as wholly or even partially amending
a prior one unless there exists a ‘positive repugnancy’
between the provisions of the new and those of the old
that cannot be reconciled.’ ” (quoting In re Penn Central
Transp. Co., 384 F. Supp. 895, 943 (Sp.Ct.R.R.R.A.
1974))).
In this case, there is no conflict between the text of
Section 111(d), 42 U.S.C. § 7411(d), and any subsequent legislative enactments—including those referenced by the 91 members of Congress that support
Petitioners in this case—that implement complementary strategies to tackle the policy challenge of climate
change. As this Court has previously observed, it would
indeed be impossible to tackle a challenge as vast and
multi-faceted as climate change without an equally
multi-faceted policy response. See Mass., 549 U.S. at
500 (“The Court has no difficulty reconciling Congress’
various efforts to promote interagency collaboration
and research to better understand climate change with
the Agency’s pre-existing mandate to regulate ‘any air
pollutant’ that may endanger the public welfare.”); id.
at 529-30 (“EPA never identifies any [post-CAA] action
remotely suggesting that Congress meant to curtail its
power to treat greenhouse gases as air pollutants. That
subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming
23
tells us nothing about what Congress meant when it
amended [the CAA.]”).
In short, no complementary subsequent legislation references or conflicts with Section 111, 42 U.S.C.
§ 7411, in any way. This legislation merely shows that
Congress takes climate change extremely seriously
and has enacted additional legislation to complement
the EPA’s authority to regulate greenhouse gases, including its broad delegated authority under Section
111(d), 42 U.S.C. § 7411(d).
III. SUBSEQUENT LEGISLATIVE EFFORTS
TO REPEAL OR RESTRICT THE EPA’S AUTHORITY TO REGULATE GREENHOUSE
GASES THROUGH THE POLITICAL PROCESS HAVE FAILED.
Despite various invocations of the “major questions doctrine” to advance the view that issues relating
to the regulation of greenhouse gases should be addressed by elected officials who are accountable to the
public—the reality is that this case represents an attempt by Petitioners and their supporting amici to
end-run and avoid the legislative process altogether,
because it has not favored their interests.
Although “failed legislative proposals” are not
strongly probative in interpreting other enacted statutes, Cent. Bank of Denver v. First Interstate Bank of
Denver, 511 U.S. 164, 187 (1994), it is worth noting that
several current and former members of Congress, including some of Petitioners’ supporting amici, have
24
sponsored, participated in, or otherwise supported numerous unsuccessful efforts to prevent the EPA from
regulating greenhouse gases in a variety of contexts.7
As an example of one such proposed bill, the Electricity Security and Affordability Act. H.R. 3826, 113th
Cong. (2014) [hereinafter, the ESAA],8 sought to preclude the EPA from issuing any standards of performance for greenhouse gas emissions from existing
stationary sources under Section 111(d) unless separate federal legislation “specif[ied] such rule’s or guidelines’ effective date.” ESAA § 3(b). But, like all other
attempts to repeal or amend the EPA’s authority to
regulate greenhouse gases, the ESAA never gained the
support necessary to be enacted into law.
7
See, e.g., American Energy Renaissance Act of 2014, H.R.
4286 § 7002, S. 2170 § 7002, 113th Cong. (2014) (copying language
from prior proposed “Energy Tax Prevention Act,” seeking to expressly forbid the EPA from taking any action “to address climate
change” and redefining “air pollution” in the CAA); Stop the War
on Coal Act of 2012, H.R. 3409 § 330(b), 112th Cong. (2012)
(same); Grow America Act of 2012, S. 2199 § 371, 112th Cong.
(2012) (same); S. Amdt. 183 to S. 439, 112th Cong. (2011) (rejected
amendment to Small Business Innovation Research (SBIR) and
Small Business Technology Transfer (STTR) Reauthorization Act
of 2011 proposing to “prohibit” the EPA “from promulgating any
regulation concerning, taking action relating to, or taking into
consideration the emission of greenhouse gas to address climate
change”).
8
The ESAA passed the House but was not enacted by the
Senate. S. 1905, 113th Cong. (2014). Later in the 113th Congress,
the ESAA was incorporated into an energy policy omnibus bill.
H.R. 2, §§ 212-14, 113th Cong. (2014). This legislation was not
enacted either.
25
Members of Congress, including some of Petitioners’ supporting amici, have also attempted to use the
Congressional Review Act—as amici here successfully
did through the Congressional Disapproval Resolution—to rescind what they consider to be overreaching
regulations by the EPA like the Clean Power Plan.
Though Congress passed this resolution, the President
vetoed it. See S.J. Res. 24, 114th Cong. (2015). There
was not sufficient support to override the President’s
veto and the resolution failed.
Members of Congress, including some of Petitioners’ supporting amici, have also acted in their capacities as members of relevant committees responsible
for oversight of the EPA to hold hearings, request information from the EPA related to its regulatory decisions, and otherwise seek to hold the agency
politically accountable for what was, in their view, a
supposed misuse of its statutory authority. See, e.g.,
The Obama Administration’s Clean Power Plan, Republican Members of the Committee on Energy and
Commerce, U.S. House of Representatives, republicansenergycommerce.house.gov/power-plan/ (last visited
Jan. 21, 2022) (describing oversight activities by members of Congress critical of the Clean Power Plan).
These oversight efforts have not advanced their goal of
repealing or curtailing the EPA’s clear statutory authority to regulate greenhouse gas emissions under the
CAA.
Having failed to achieve sufficient support to ratify these changes to the CAA through the legislative
process, Petitioners and their amici now turn to this
26
Court to achieve what is fundamentally a legislative
and political end through judicial means.
Where the text of a statute is clear, albeit broad,
members of Congress and their constituents who disagree with an agency’s use of that clearly delegated authority have numerous options before them to
challenge or change that authority. Members of Congress supporting Petitioners as amici, among others,
have used them all many times over. But where there
is insufficient support in Congress to successfully effect those changes, seeking re-interpretation of the
statute by this Court should not be the next step.
---------------------------------♦---------------------------------
CONCLUSION
For these reasons, the judgment of the Court of
Appeals of the District of Columbia Circuit should be
affirmed.
January 25, 2022
Respectfully submitted,
AGATHA M. COLE
Counsel of Record
MAX E. RODRIGUEZ
ALISON BOROCHOFF-PORTE
RAPHAEL JANOVE
ADAM POLLOCK
POLLOCK COHEN LLP
60 Broad Street, 24th Floor
New York, NY 10004
(212) 337-5361
agatha@pollockcohen.com
Counsel for Amici Curiae
App. 1
APPENDIX:
LIST OF AMICI
Representative Kathy Castor of Florida,
14th Congressional District
Representative Frank Pallone, Jr. of New Jersey,
6th Congressional District
Senator Thomas R. Carper of Delaware
Speaker Nancy Pelosi of California,
12th Congressional District
Majority Leader Steny Hoyer of Maryland,
5th Congressional District
Majority Whip James E. Clyburn of South Carolina,
6th Congressional District
Assistant Speaker Katherine Clark of Massachusetts,
5th Congressional District
Democratic Caucus Chairman Hakeem Jeffries of
New York,
8th Congressional District
Senate Majority Leader Charles E. Schumer of
New York
Senate Majority Whip Richard J. Durbin of Illinois
Representative Alma S. Adams, Ph.D. of North Carolina,
12th Congressional District
Representative Pete Aguilar of California,
31st Congressional District
Representative Colin Allred of Texas,
32nd Congressional District
App. 2
Representative Jake Auchincloss of Massachusetts,
4th Congressional District
Representative Nanette Diaz Barragán of California,
44th Congressional District
Representative Karen Bass of California,
37th Congressional District
Representative Joyce Beatty of Ohio,
3rd Congressional District
Representative Donald S. Beyer Jr. of Virginia,
8th Congressional District
Representative Earl Blumenauer of Oregon,
3rd Congressional District
Representative Lisa Blunt Rochester of Delaware,
At-Large Congressional District
Representative Suzanne Bonamici of Oregon,
1st Congressional District
Representative Carolyn Bourdeaux of Georgia,
7th Congressional District
Representative Jamaal Bowman, Ed.D. of New York,
16th Congressional District
Representative Anthony G. Brown of Maryland,
4th Congressional District
Representative Shontel M. Brown of Ohio,
11th Congressional District
Representative Julia Brownley of California,
26th Congressional District
Representative Cori Bush of Missouri,
1st Congressional District
App. 3
Representative G. K. Butterfield of North Carolina,
1st Congressional District
Representative Salud Carbajal of California,
24th Congressional District
Representative Tony Cárdenas of California,
29th Congressional District
Representative André Carson of Indiana,
7th Congressional District
Representative Troy A. Carter, Sr. of Louisiana,
2nd Congressional District
Representative Matt Cartwright of Pennsylvania,
8th Congressional District
Representative Sean Casten of Illinois,
6th Congressional District
Representative Joaquin Castro of Texas,
20th Congressional District
Representative David N. Cicilline of Rhode Island,
1st Congressional District
Representative Yvette D. Clarke of New York,
9th Congressional District
Representative Emanuel Cleaver, II of Missouri,
5th Congressional District
Representative Steve Cohen of Tennessee,
9th Congressional District
Representative Gerald E. Connolly of Virginia,
11th Congressional District
Representative Jim Costa of California,
16th Congressional District
App. 4
Representative Joe Courtney of Connecticut,
2nd Congressional District
Representative Charlie Crist of Florida,
13th Congressional District
Representative Jason Crow of Colorado,
6th Congressional District
Representative Danny K. Davis of Illinois,
7th Congressional District
Representative Madeline Dean of Pennsylvania,
4th Congressional District
Representative Peter A. DeFazio of Oregon,
4th Congressional District
Representative Diana DeGette of Colorado,
1st Congressional District
Representative Suzan K. DelBene of Washington,
1st Congressional District
Representative Mark DeSaulnier of California,
11th Congressional District
Representative Ted Deutch of Florida,
22nd Congressional District
Representative Debbie Dingell of Michigan,
12th Congressional District
Representative Lloyd Doggett of Texas,
35th Congressional District
Representative Michael F. Doyle of Pennsylvania,
18th Congressional District
Representative Veronica Escobar of Texas,
16th Congressional District
App. 5
Representative Anna G. Eshoo of California,
18th Congressional District
Representative Adriano Espaillat of New York,
13th Congressional District
Representative Dwight Evans of Pennsylvania,
3rd Congressional District
Representative Bill Foster of Illinois,
11th Congressional District
Representative Lois Frankel of Florida,
21st Congressional District
Representative Ruben Gallego of Arizona,
7th Congressional District
Representative John Garamendi of California,
3rd Congressional District
Representative Jesús G. “Chuy” García of Illinois,
4th Congressional District
Representative Jimmy Gomez of California,
34th Congressional District
Representative Raúl M. Grijalva of Arizona,
3rd Congressional District
Representative Jahana Hayes of Connecticut,
5th Congressional District
Representative Jared Huffman of California,
2nd Congressional District
Representative Sheila Jackson Lee of Texas,
18th Congressional District
Representative Sara Jacobs of California,
53rd Congressional District
App. 6
Representative Pramila Jayapal of Washington,
7th Congressional District
Representative Eddie Bernice Johnson of Texas,
30th Congressional District
Representative Henry C. “Hank” Johnson of Georgia,
4th Congressional District
Representative Mondaire Jones of New York,
17th Congressional District
Representative Kaiali'i Kahele of Hawaii,
2nd Congressional District
Representative Marcy Kaptur of Ohio,
9th Congressional District
Representative William R. Keating of Massachusetts,
9th Congressional District
Representative Daniel T. Kildee of Michigan,
5th Congressional District
Representative Derek Kilmer of Washington,
6th Congressional District
Representative Andy Kim of New Jersey,
3rd Congressional District
Representative Raja Krishnamoorthi of Illinois,
8th Congressional District
Representative Ann McLane Kuster of
New Hampshire, 2nd Congressional District
Representative James R. Langevin of Rhode Island,
2nd Congressional District
Representative John B. Larson of Connecticut,
1st Congressional District
App. 7
Representative Brenda L. Lawrence of Michigan,
14th Congressional District
Representative Barbara Lee of California,
13th Congressional District
Representative Teresa Leger Fernández of New Mexico,
3rd Congressional District
Representative Andy Levin of Michigan,
9th Congressional District
Representative Mike Levin of California,
49th Congressional District
Representative Ted W. Lieu of California,
33rd Congressional District
Representative Alan Lowenthal of California,
47th Congressional District
Representative Stephen F. Lynch of Massachusetts,
8th Congressional District
Representative Tom Malinowski of New Jersey,
7th Congressional District
Representative Carolyn B. Maloney of New York,
12th Congressional District
Representative Sean Patrick Maloney of New York,
18th Congressional District
Representative Kathy Manning of North Carolina,
6th Congressional District
Representative Doris Matsui of California,
6th Congressional District
Representative Lucy McBath of Georgia,
6th Congressional District
App. 8
Representative Betty McCollum of Minnesota,
4th Congressional District
Representative Donald McEachin of Virginia,
4th Congressional District
Representative James P. McGovern of Massachusetts,
2nd Congressional District
Representative Jerry McNerney of California,
9th Congressional District
Representative Gregory Meeks of New York,
5th Congressional District
Representative Grace Meng of New York,
6th Congressional District
Representative Kweisi Mfume of Maryland,
7th Congressional District
Representative Gwen Moore of Wisconsin,
4th Congressional District
Representative Seth Moulton of Massachusetts,
6th Congressional District
Representative Jerrold Nadler of New York,
10th Congressional District
Representative Joe Neguse of Colorado,
2nd Congressional District
Representative Marie Newman of Illinois,
3rd Congressional District
Representative Eleanor Holmes Norton of the District
of Columbia, At-Large Congressional District
Representative Alexandria Ocasio-Cortez of New York,
14th Congressional District
App. 9
Representative Tom O’Halleran of Arizona,
1st Congressional District
Representative Jimmy Panetta of California,
20th Congressional District
Representative Bill Pascrell, Jr. of New Jersey,
9th Congressional District
Representative Donald M. Payne, Jr. of New Jersey,
10th Congressional District
Representative Ed Perlmutter of Colorado,
7th Congressional District
Representative Scott H. Peters of California,
52nd Congressional District
Representative Chellie Pingree of Maine,
1st Congressional District
Representative Mark Pocan of Wisconsin,
2nd Congressional District
Representative Katie Porter of California,
45th Congressional District
Representative Ayanna Pressley of Massachusetts,
7th Congressional District
Representative David E. Price of North Carolina,
4th Congressional District
Representative Mike Quigley of Illinois,
5th Congressional District
Representative Jamie Raskin of Maryland,
8th Congressional District
Representative Kathleen M. Rice of New York,
4th Congressional District
App. 10
Representative Deborah K. Ross of North Carolina,
2nd Congressional District
Representative Bobby L. Rush of Illinois,
1st Congressional District
Representative Linda T. Sánchez of California,
38th Congressional District
Representative Michael F.Q. San Nicolas of Guam,
At-Large Congressional District
Representative John Sarbanes of Maryland,
3rd Congressional District
Representative Mary Gay Scanlon of Pennsylvania,
5th Congressional District
Representative Jan Schakowsky of Illinois,
9th Congressional District
Representative Adam B. Schiff of California,
28th Congressional District
Representative Bradley S. Schneider of Illinois,
10th Congressional District
Representative Kurt Schrader of Oregon,
5th Congressional District
Representative Kim Schrier of Washington,
8th Congressional District
Representative David Scott of Georgia,
13th Congressional District
Representative Robert C. “Bobby” Scott of Virginia,
3rd Congressional District
Representative Terri A. Sewell of Alabama,
7th Congressional District
App. 11
Representative Mikie Sherrill of New Jersey,
11th Congressional District
Representative Albio Sires of New Jersey,
8th Congressional District
Representative Adam Smith of Washington,
9th Congressional District
Representative Darren Soto of Florida,
9th Congressional District
Representative Jackie Speier of California,
14th Congressional District
Representative Haley Stevens of Michigan,
11th Congressional District
Representative Marilyn Strickland of Washington,
10th Congressional District
Representative Thomas R. Suozzi of New York,
3rd Congressional District
Representative Mark Takano of California,
41st Congressional District
Representative Mike Thompson of California,
5th Congressional District
Representative Dina Titus of Nevada,
1st Congressional District
Representative Rashida Tlaib of Michigan,
13th Congressional District
Representative Paul D. Tonko of New York,
20th Congressional District
Representative Norma J. Torres of California,
35th Congressional District
App. 12
Representative Ritchie Torres of New York,
15th Congressional District
Representative Lori Trahan of Massachusetts,
3rd Congressional District
Representative David Trone of Maryland,
6th Congressional District
Representative Marc Veasey of Texas,
33rd Congressional District
Representative Nydia M. Velázquez of New York,
7th Congressional District
Representative Debbie Wasserman Schultz of Florida,
23rd Congressional District
Representative Maxine Waters of California,
43rd Congressional District
Representative Bonnie Watson Coleman of
New Jersey, 12th Congressional District
Representative Peter Welch of Vermont,
At-Large Congressional District
Representative Susan Wild of Pennsylvania,
7th Congressional District
Representative Nikema Williams of Georgia,
5th Congressional District
Representative Frederica S. Wilson of Florida,
24th Congressional District
Representative John Yarmuth of Kentucky,
3rd Congressional District
App. 13
Senator Tammy Baldwin of Wisconsin
Senator Michael F. Bennet of Colorado
Senator Cory A. Booker of New Jersey
Senator Sherrod Brown of Ohio
Senator Benjamin L. Cardin of Maryland
Senator Robert P. Casey, Jr. of Pennsylvania
Senator Christopher A. Coons of Delaware
Senator Tammy Duckworth of Illinois
Senator Dianne Feinstein of California
Senator Kirsten Gillibrand of New York
Senator Martin Heinrich of New Mexico
Senator Mazie K. Hirono of Hawaii
Senator Angus S. King, Jr. of Maine
Senator Amy Klobuchar of Minnesota
Senator Patrick J. Leahy of Vermont
Senator Ben Ray Luján of New Mexico
Senator Edward J. Markey of Massachusetts
Senator Robert Menendez of New Jersey
Senator Jeffrey Merkley of Oregon
Senator Alex Padilla of California
Senator Brian Schatz of Hawaii
Senator Jeanne Shaheen of New Hampshire
Senator Tina Smith of Minnesota
App. 14
Senator Debbie Stabenow of Michigan
Senator Chris Van Hollen of Maryland
Senator Ron Wyden of Oregon
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.