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

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

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE NORTH AMERICAN COAL CORPORATION

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

WESTMORELAND MINING HOLDINGS LLC

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

THE STATE OF NORTH DAKOTA

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

On Writs of Certiorari to the United States

Court of Appeals for the D.C. Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENTS

January 2022

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

The interpretive guidepost sometimes referred to

as the “major questions doctrine” has no

application to this case. ......................................... 4

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Ala. Ass’n of Realtors v. Dep’t of Health &

Human Servs.,

141 S. Ct. 2485 (2021) ..................................... 9, 10

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................. 19

Biden v. Missouri,

142 S. Ct. 647 (2022) ........................... 3, 15, 16, 18

Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) ............................................. 18

City of Arlington v. FCC,

569 U.S. 290 (2013) ............................................. 14

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) ......................................... 14

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ......................... 5, 6, 7, 8, 9, 17

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................. 7, 8, 9, 17

King v. Burwell,

576 U.S. 473 (2015) ............................................. 13

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ........................................... 1

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020) ................................... 15, 20

MCI Telecomms. Corp. v. AT&T Co.,

512 U.S. 218 (1994) ....................................... 12, 13

iii

Nat’l Fed’n of Indep. Business v. OSHA,

142 S. Ct. 661 (2022) ............................. 3, 4, 10, 11

Util. Air. Reg. Group v. EPA,

573 U.S. 302 (2014) ............... 5, 8, 9, 10, 16, 17, 20

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................. 7, 12, 13, 20

Statutes

5 U.S.C. § 706(2)(A) .................................................. 14

42 U.S.C. § 7411 .............................................. 4, 19, 20

42 U.S.C. § 7411(b)(1)(A) .......................................... 19

42 U.S.C. § 7411(d) ................................................... 19

42 U.S.C. § 7411(d)(1) ............................................... 19

42 U.S.C. § 7607(d)(9) ............................................... 14

INTEREST OF AMICUS CURIAE1

Public Citizen is a consumer advocacy organization

that appears on behalf of its members and supporters

nationwide before Congress, administrative agencies,

and the courts. Much of Public Citizen’s research and

policy work focuses on regulatory matters, and Public

Citizen is often involved in litigation either challenging or defending agency action. Significant questions

of administrative law are thus central concerns of

Public Citizen, and Public Citizen has often filed briefs

in cases raising such issues. See, e.g., Kisor v. Wilkie,

139 S. Ct. 2400 (2019).

In this case, petitioners raise novel arguments requesting a substantial expansion of the interpretive

guidepost sometimes referred to as the “major questions doctrine,” which the Court has previously applied in extraordinary cases where it concludes that

an agency has asserted broad authority over subjects

outside those that a fair reading of the agency’s governing statutes place within its purview. Although, as

respondents explain, the procedural posture of this

case does not properly place any merits issues before

the Court, Public Citizen submits this brief addressing the proper scope of the interpretive principles that

petitioners invoke to assist the Court in resolving

their claims should it conclude that they are properly

considered in this case.

––––––––––––––––––––––––

1 This brief was not authored in whole or part by counsel for

a party. No one other than amicus curiae made a monetary contribution to preparation or submission of the brief. Counsel for

all parties have consented in writing to its filing.

2

SUMMARY OF ARGUMENT

Petitioners in these cases assert that any view of

the authority of the Environmental Protection Agency

(EPA) under the Clean Air Act that is broader than

the view reflected in the rules vacated by the decision

below would violate the “major questions doctrine.” As

the respondents’ briefs explain, the current absence of

any operative rule reflecting the construction of EPA’s

authority that petitioners challenge makes this case

inappropriate for exploring that issue. Indeed, as respondents point out, there is no Article III case or controversy over the scope of EPA’s authority under the

Clean Air Act provision at issue both because petitioners do not articulate any injury from the current absence of a regulation reflecting the exercise of that authority and because the abstract legal issue they seek

to present is not ripe for review. Even aside from Article III concerns, petitioners’ arguments are premised

on the notion that the agency has taken some action

based on the wrongful assumption of authority to decide some issue of great social or economic import

without a sufficiently clear delegation of authority by

Congress. In the absence of an extant agency action

that actually reflects such an assumption of authority,

petitioners’ claims would necessarily fail on the merits

even if they presented a case or controversy, as respondents explain.

Public Citizen submits this brief not to repeat

those points, but to elaborate on the reasons why the

interpretive guidepost that members of the Court

have labeled the “major questions doctrine” provides

no support to petitioners’ position, even on the assumption that the merits of their arguments are, to

some degree, properly before the Court. As the court

recently summarized that guidepost, “[w]e expect

3

Congress to speak clearly when authorizing an agency

to exercise powers of vast economic and political significance.” Nat’l Fed’n of Indep. Business v. OSHA,

142 S. Ct. 661, 665 (2022) (NFIB). That summary does

not, and does not purport to, provide a complete definition of the circumstances to which the guidepost applies or how it operates when applicable. In particular,

it does not suggest that Congress is subject to a

heightened standard of clarity whenever an agency

undertakes an important task within its assigned

area of responsibility.

Rather, the Court has followed the guidepost in exceptional cases where it concluded that an agency had

sought to assert authority over a subject matter outside the scope of its delegated powers, and where the

consequences of that assertion were so great as to displace the normal presumption that Congress intended

to allow the agency to resolve ambiguities as to the

precise bounds of its authority. Outside of those unusual circumstances, however, the Court has recognized that no standard of heightened clarity applies to

legislation defining the way an agency acting within

its sphere of authority exercises its powers: Agency action that reasonably falls within the scope of broad

statutory language authorizing it is lawful even if the

action addresses a highly important matter and uses

means that are not explicitly identified in the statute.

See, e.g., Biden v. Missouri, 142 S. Ct. 647 (2022). Indeed, resolving important issues that fall within the

bounds of a regulatory agency’s authority “is what [a

federal agency] does.” Id. at 653.

4

ARGUMENT

The interpretive guidepost sometimes

referred to as the “major questions

doctrine” has no application to this case.

If any merits question involving application of the

“major questions doctrine” is presented by this case, it

is no more than this: Does the major questions doctrine bar any construction of EPA’s Clean Air Act authority that would allow the agency to consider pollution control measures other than inside-the-fenceline

controls in determining the “best system of emission

reduction” for purposes of regulation of pollutants

from existing stationary sources under 42 U.S.C.

§ 7411? Under the circumstances of this case, answering that question would effectively amount to issuance

of an advisory opinion. If, however, the Court chooses

to address it, the answer must be no. Whether EPA

possesses such authority is a question that might have

significant consequences, perhaps even consequences

that could be characterized as “major”—or not, depending on how EPA chose to exercise its authority.

See U.S. Br. 43, 46–48. But the possibility that an

agency may exercise its assigned powers in ways that

are highly consequential is not enough to require that

the statute granting such powers satisfy a clear-statement rule.

A. The principle that members of this Court have,

in recent years, “sometimes call[ed] … the major questions doctrine,” NFIB, 142 S. Ct. at 667 (Gorsuch, J.,

concurring), has never been articulated in a way that

conditions all important exercises of agency authority

on a clear statement by Congress. Rather, the guidepost that the Court’s majority has found instructive in

a small number of cases is that Congress is expected

5

to “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ”

Util. Air. Reg. Group v. EPA, 573 U.S. 302, 324 (2014)

(UARG) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). The principle,

then, might be more aptly labeled the “vast significance” doctrine.

Even that phrase, however, would fail to describe

the doctrine adequately. The decisions of this Court

that have stated this principle have done so in exceptional circumstances where the Court has concluded

that an agency has broadly asserted authority over a

subject-matter entirely beyond that defined by a fair

reading of its organic statutes. In addition, the Court

has generally pointed to textual and structural statutory features that strongly indicate that Congress did

not intend to confer such authority, and/or to the absence of limiting principles that would cabin the

agency’s power if its assertion of authority were accepted. The extraordinarily broad economic or social

consequences of the agency’s assertion of authority

have formed part of the reason for the Court’s invocation of the importance of congressional clarity in such

cases, but not its sole basis.

For example, in Brown & Williamson, this Court

rejected the FDA’s assertion of authority to regulate

tobacco products as “drugs” under decades-old provisions of the Food, Drug, and Cosmetic Act (FDCA) that

had never before been applied to tobacco products. The

Court concluded that it was “clear that Congress intended to exclude tobacco products from the FDA’s jurisdiction,” 529 U.S. at 142, because if the FDCA (as it

then existed) applied to tobacco products, it would necessarily have required that they be banned—a result

that would conflict with numerous statutes

6

specifically applicable to tobacco products that unambiguously reflected congressional directives that they

not be banned, id. at 143. The Court concluded that

Congress had repeatedly enacted legislation that ratified the FDA’s longstanding prior position that it

lacked authority over tobacco products, id. at 144, and

that would be contradicted by the assertion of such authority—for example, a statute precluding any agency

from issuing labeling requirements, id. at 149. The

Court rested its decision principally on the legislative

structure enacted by Congress, which it found incompatible with the FDA’s assertion of authority. See id.

at 155.

Although the Court in Brown & Williamson observed that in “extraordinary cases … there may be

reason to hesitate before concluding that Congress has

intended such an implicit delegation,” id. at 159, it did

so only after exhaustively explaining how the statutory framework applicable to tobacco at that time precluded FDA regulation. The FDA’s new assertion of

“jurisdiction to regulate an industry constituting a significant portion of the American economy” and holding

“a unique place in American history and society,” id.,

placed the case in that “extraordinary” category, id. at

160. It was in this context that the Court observed

that “we are confident that Congress could not have

intended to delegate a decision of such economic and

political significance to an agency in so cryptic a fashion.” Id. But neither the Court’s assessment of the political and economic significance of the agency’s action

nor the application of a clear-statement requirement

was the principal driver of the Court’s decision. Rather, its decision rested on the Court’s conclusion that

it was “clear” that “Congress ha[d] directly spoken to

the question at issue,” id. at 160–61 (emphasis added),

7

and had foreclosed the agency’s “expansive construction of the statute,” id. at 160.

Similarly, Gonzales v. Oregon, 546 U.S. 243 (2006),

invoked by petitioners as an example of the “major

questions doctrine,” also involved an expansive assertion of agency authority over a field not previously

within its scope: specifically, the Attorney General’s

attempt to leverage his authority over illicit traffic in

controlled substances to issue a rule regulating the

practice of medicine. The Court declined to afford deference to that assertion of regulatory authority because it determined that the language and structure

of the governing legislation did not confer such authority. See id. at 258. The Court relied principally on the

“plain language,” “design,” and “structure” of the statute. Id. at 264–65. The Court pointed out that it would

be “anomalous” to construe the provisions relied on by

the Attorney General as implicitly conferring the

claimed authority because such a construction would

effectively confer “unrestrained” authority incompatible with the limits Congress had “painstakingly” imposed on his authority in other provisions. Id. at 262.

As in Brown & Williamson, the Court in Gonzales

supported its conclusion that the agency’s claim of

broad new authority was at odds with the statutory

design by observing that Congress would not have altered “fundamental details of a regulatory scheme in

vague terms,” id. at 267 (quoting Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001)), and by citing Brown & Williamson’s rejection of “cryptic” delegations of power to make decisions with “such economic and political significance,” id. (quoting 529 U.S.

at 160). Ultimately, however, the Court emphasized

that its decision rested on the “text and structure” of

the Controlled Substances Act, id. at 275, and that it

8

was “unnecessary even to consider the application of

clear statement requirements” to reject the claim of

agency regulatory authority, id. at 274.2

UARG, the decision that is the source of the sentence now used to encapsulate the “major question

doctrine,” see 573 U.S. at 324, similarly turned on the

Court’s reading of statutory language and structure,

see id. at 321. There, the Court rejected EPA’s reading

that the language of the Clean Air Act compelled or

permitted it to regulate certain greenhouse gas emissions from small stationary sources—a reading that

would have expanded the sources potentially subject

to regulation under the relevant provisions of the Act

by many orders of magnitude. Analyzing the statutory

text in its full context, the Court explained that the

agency’s construction of the statute did not, as the

agency thought, follow from the use of the term “air

pollutant” in the provisions at issue. See id. at 315–20.

The Court went on to hold that the agency’s construction was unreasonable, and hence impermissible, because the agency itself had acknowledged that its interpretation “would be inconsistent with—in fact,

would overthrow—the Act’s structure and design.” Id.

at 321. Indeed, EPA had concluded that its construction of the statute would be unworkable and would

“severely undermine what Congress sought to accomplish,” id. at 322, unless the agency established new

permitting thresholds excluding many small sources

from regulation in disregard of “unambiguous

––––––––––––––––––––––––

2 Justice Scalia’s dissent, joined by Chief Justice Roberts and

Justice Thomas, stated unequivocally that no clear-statement

principle was applicable to the Attorney General’s assertion of

broad and highly consequential authority to prohibit otherwise

permissible conduct. 546 U.S. at 291–92.

9

statutory terms,” id. at 325, that required regulation

of such sources if they really were, as EPA posited,

properly subject to the provisions at issue. “[R]eaffirm[ing] the core administrative-law principle that

an agency may not rewrite clear statutory terms to

suit its own sense of how the statute should operate,”

the Court concluded that “the need to rewrite clear

provisions of the statute” to make EPA’s construction

workable signaled that the agency’s “interpretation

was impermissible.” Id. at 328.

Along the way, the Court stated that the agency’s

interpretation was “also unreasonable because it

would bring about an enormous and transformative

expansion in EPA’s regulatory authority without clear

congressional authorization.” Id. at 324. In this context, the Court said, “We expect Congress to speak

clearly if it wishes to assign to an agency decisions of

vast economic and political significance.” Id. at 324

(internal quotation marks omitted). But the Court’s

holding was not that EPA’s action failed for lack of

clear authorization: It was that EPA’s action was

clearly unauthorized because the Act’s structure and

language made it “patently unreasonable” for the

agency to exercise authority that “the statute is not

designed to grant.” Id.

The Court’s most recent applications of the interpretive approach taken in Brown & Williamson, Gonzales, and UARG similarly focus on circumstances in

which the Court has concluded that statutory language and design fail to support what it has seen as a

dramatic expansion in the subjects over which an

agency asserts authority. In Alabama Ass’n of Realtors v. Department of Health & Human Services, 141

S. Ct. 2485 (2021), the Court invoked UARG’s “vast …

significance” language in vacating a stay pending

10

appeal of a district court’s decision invalidating an

eviction moratorium imposed by the Centers for Disease Control (CDC) as a measure to control the spread

of COVID-19.

The Court started by holding that the district

court’s opinion was likely to be affirmed because the

statutory language relied on by the CDC to authorize

its action, read in context, did not support its assertion

of authority over matters “markedly different from the

direct targeting of disease that characterizes the

measures identified in the statute.” Id. at 2488. The

Court went on to state that, “[e]ven if the text were

ambiguous,” the scope of the CDC’s claim of authority

would “counsel against the Government’s interpretation.” Id. at 2489. Quoting UARG, the Court observed

that the CDC had claimed “vast” power, of a type

never before asserted, over landlord-tenant relations

and that the CDC’s view of the statute would give it “a

breathtaking amount of authority,” without obvious

limiting principles, over economic transactions that

might affect the spread of disease. Id. Such authority,

the Court stated, could not be supported by the “waferthin reed” of the statutory language invoked by the

agency. Id.3

Similarly, in NFIB, the Court addressed an assertion of authority by the Occupational Safety and

Health Administration (OSHA) over what the majority concluded was a matter of public health rather

than workplace safety. While framing the issue as

whether Congress had “plainly” conferred authority to

regulate public health, 142 S. Ct. at 665, the majority

––––––––––––––––––––––––

3 The Court also invoked federalism concerns, 141 S. Ct. at -

2489, which, as respondents’ briefs explain, are not similarly implicated here.

11

concluded that Congress plainly had not. See id. (stating that the “Act empowers the Secretary to set workplace safety standards, not broad public health

measures,” and that “no provision of the Act addresses

public health more generally”). Indeed, the majority

found that “the text of the agency’s Organic Act … repeatedly makes clear that OSHA is charged with regulating ‘occupational’ hazards and the safety and

health of ‘employees.’ ” Id. (emphasis added). As in

previous cases articulating the Court’s expectation

that Congress speak clearly when authorizing agencies to exercise “powers of vast political and economic

significance,” id., the Court emphasized what it saw

as the “breadth of” and “lack of historical precedent”

for the agency’s claim of authority as a further indication that the agency lacked authority. Id. at 666.

The common thread among these decisions is what

the Court finds to be an agency’s unprecedented and

expansive assertion of broad authority over matters

outside its normal ken, and beyond what the Court determines is a fair reading of the language and structure of the statutes conferring authority. In such extraordinary circumstances, the Court has seen the

“vast political and economic significance,” id. at 665,

of the agency’s action as a factor weighing against the

assertion that Congress implicitly authorized such action through arguably ambiguous provisions that,

read broadly, would run counter to the overall design

of the statutory scheme. None of the decisions, however, holds or suggests that Congress must meet a

heightened clear-statement requirement whenever it

delegates to an agency the power to take some important action within the sphere of authority it has

conferred on the agency.

12

B. While the decisions discussed above principally

concern limits on broad assertions of agency authority, petitioners and their amici also invoke a line of

decisions holding more generally that minor ambiguities in statutory language generally do not serve as

authorization for agency actions that would work fundamental changes to a regulatory scheme—including

changes that would lessen the impact of regulation.

See, e.g, Whitman, 531 U.S. at 468; MCI Telecomms.

Corp. v. AT&T Co., 512 U.S. 218, 231 (1994).

In Whitman, for example, the Court held that plain

language of the Clean Air Act did not permit EPA to

consider cost in setting ambient air quality standards.

See 531 U.S. at 465. The Court declined to read such

authority into “modest words” in the statute that did

not appear to address the issue because “Congress …

does not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions.” Id. at

468.

Similarly, in MCI, the Court rejected an agency’s

attempt to deregulate long-distance rates, where the

“essential characteristic” of the statutory scheme was

the requirement that rates be filed. 512 U.S. at 231.

There, the agency had upended that scheme by eliminating rate-filing altogether, invoking a provision allowing it to “modify” statutory requirements. Holding

that this provision did not by its plain terms authorize

the agency’s action, the Court observed that it was

“highly unlikely that Congress would leave the determination of whether an industry will be entirely, or

even substantially, rate-regulated to agency discretion—and even more unlikely that it would achieve

that through such a subtle device as permission to

‘modify’ rate-filing requirements.” Id.

13

Notably, neither Whitman nor MCI suggests the

existence of a clear-statement rule applicable whenever an agency takes any action pursuant to its authority that would have a major impact on regulated

entities. Instead, they hold that agencies cannot alter

the fundamental nature of regulatory schemes to reduce their impact based on out-of-context readings of

words or phrases that are at odds with the language

and design of the statutory scheme viewed as a whole.4

C. None of the decisions invoked by petitioners as

the basis for the “major question doctrine” applies to

circumstances in which an agency is regulating the

subjects over which Congress has granted it authority

and has not sought to alter the fundamental nature of

––––––––––––––––––––––––

4 In another case included in the litany of “major questions

doctrine” decisions by petitioners, King v. Burwell, 576 U.S. 473

(2015), the Court declined to afford Chevron deference to an IRS

interpretation of the applicability of the tax-credit provision of

the Affordable Care Act, where deferring to that view would effectively determine the viability of the insurance exchanges established under the Act. The Court held that the significance of

the issue made it unlikely that Congress would have implicitly

delegated resolution of the legal question to an agency, and especially unlikely that it would delegate the question to the IRS,

which lacked any responsibility for or expertise in health care

policy. Id. at 486. Thus, the Court decided the issue for itself. Notably, however, in doing so, the Court ultimately agreed with the

agency’s decision, and its substantive statutory construction did

not rest on a presumption against statutory readings with significant political and economic impacts. Instead, the Court reasoned

that it was implausible that Congress intended a reading of one

provision that would effectively overturn the remainder of the

statutory scheme. See id. at 497. King has little bearing on this

case, where the issue is not whether to defer to EPA’s construction of the statute, and where the interpretive principle invoked

by petitioners to determine the substantive scope of the provision

at issue is different from the one applied to that question in King.

14

the statutory scheme designed by Congress. When an

agency remains within those bounds, this Court’s decisions have continued to recognize that its actions—

even if highly consequential for those subject to regulation and for the general public whom that regulation

is intended to protect—are subject to review under the

standards defined by the Administrative Procedure

Act, under which actions may be set aside if they are

arbitrary, capricious, an abuse of discretion, or contrary to law. See 5 U.S.C. § 706(2)(A).5 Under that

standard, ambiguities in statutes defining the details

of an agency’s regulatory authority are usually treated

as implicit authorization for the agency to adopt a

reading of the statute that a court should accept if reasonable and within the permissible scope of the statutory language. See City of Arlington v. FCC, 569 U.S.

290, 296 (2013); accord id. at 312 (Roberts, C.J., dissenting). Absent an agency construction entitled to

deference, moreover, courts reviewing the lawfulness

of an agency’s action should supply the “best reading”

of the statutory language. See Encino Motorcars, LLC

v. Navarro, 138 S. Ct. 1134, 1140 (2018). Whether applying Chevron or supplying its own reading, however,

a court is not required by this Court’s decisions to apply special tools of statutory construction, requiring a

clear congressional statement to authorize any agency

actions that have “major” political or economic significance.

Quite the contrary. When an agency acts within its

statutorily conferred sphere of authority and exercises

that authority consistently with a statute assigning it

a particular function, this Court has held that a court

––––––––––––––––––––––––

5 The Clean Air Act sets forth an identical standard of review.

42 U.S.C. § 7607(d)(9).

15

must sustain its action and may not “impos[e] limits

on [the] agency’s discretion that are not supported by

the text.” Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020).

Thus, in Little Sisters, the Court sustained a regulation on a matter of great political, social, and economic

significance: the creation of a broad religious exception to the requirement that health plans provide contraceptive coverage—an exemption that would potentially impede many women’s access to contraception.

Far from requiring an explicit, clear statement that

the agency was authorized to create such an exemption, the Court held that it fell within the agency’s

general authority to require health plans to offer preventive care “as provided for” by the agency, absent

statutory language precluding the agency from creating a religious exemption. See id. at 2379–81.

Similarly, in Biden v. Missouri, this Court held

that the Secretary of Health and Human Services was

authorized to impose COVID vaccination requirements on health care providers by statutory provisions broadly providing for imposition of conditions on

providers accepting Medicare and Medicaid funding to

protect the health and safety of patients. 142 S. Ct. at

652. Despite the political and economic significance of

the requirement, and in the face of the dissent’s invocation of the “major questions doctrine,” see id. at 658

(Thomas, J., dissenting), the Court required no explicit congressional authorization of vaccination requirements. Rather, emphasizing that the Secretary

was acting squarely within his assigned area of regulatory responsibility and in accordance with broadly

worded provisions authorizing measures to protect

Medicaid and Medicare recipients, the Court held that

the Secretary had the power to use new means to carry

16

out his assigned duties in the face of “unprecedented

circumstances,” and found “no grounds for limiting the

exercise of authorities the agency has long been recognized to have.” Id. at 654.

UARG also explicitly recognizes that no heightened clarity requirement applies to statutes authorizing agencies to take important actions within the

scope of their authority. In addition to addressing

EPA’s novel and expansive assertion of authority over

greenhouse-gas emissions from small sources, UARG

considered whether EPA “reasonably interpreted” the

Clean Air Act when it required sources that were concededly within its established regulatory authority to

“comply with ‘best available control technology’

[BACT] emission standards for greenhouse gases.”

573 U.S. at 329. Although such regulation also had

significant economic consequences and the potential

for very far-reaching effects, the Court did not require

a clear statement from Congress explicitly authorizing

imposition of BACT emission standards for greenhouse gases: It was enough that such regulation fell

within a fair reading of Congress’s authorization of

such controls for “each pollutant subject to regulation

under this chapter,” id. at 331; that the agency’s authority was not “unbounded,” id.; that applying BACT

standards to greenhouse gases was not “disastrously

unworkable,” id. at 332; and, critically, that such regulation involves no “dramatic expansion of agency authority” to encompass “previously unregulated entities,” id. The mere “potential” that reading the statute

to allow such regulation could “lead to an unreasonable and unanticipated degree of regulation” did not

suffice for the Court to hold that the reading was beyond EPA’s authority. Id.

17

D. That the Court has not required a clear statement to authorize even highly consequential regulations within an agency’s established sphere of authority is understandable because such a requirement, in

practice, would be incoherent and yield indeterminate

consequences. When an agency has undertaken to regulate subjects wholly outside the recognized bounds of

its regulatory authority, the consequences of such an

assertion of authority can be avoided by setting aside

its action. In those cases, the expectation of clear authorization for broad new assertions of authority

works together with traditional tools of statutory construction to confine agencies to their proper roles—as

cases such as Brown & Williamson, Gonzales, and

UARG demonstrate.

Where, however, as in this case, the question concerns a matter within the scope of the agency’s authority, requiring a clear statement from Congress to support any agency decision that may have highly significant consequences would lead to administrative paralysis. Such a requirement would not tell the agency

which way it should decide a significant matter that is

properly before it when the statutory language does

not provide an unambiguous direction and a decision

either way will have consequences that could be characterized as “major.” And Congress cannot reasonably

be expected to anticipate and plainly prescribe the exact answers to all consequential issues that may arise

in the course of an agency’s exercise of its assigned

functions. Requiring it to do so would be both impossible and contrary to the basic reason for assigning

tasks to regulatory agencies: the need, long perceived

by Congress, to allow regulators to bring their expertise to bear on a range of problems and, upon considering all circumstances relevant to the range of

18

discretion conferred by the governing statute, arrive

at reasonable solutions—including, at times, new solutions to unprecedented problems. See Biden v. Missouri, 142 S. Ct. at 654. After all, a regulatory agency

is not a “mere bookkeeper,” and addressing important

issues within the established scope of its authority is

“what [the agency] does.” Id. at 653. Expanding the

“major questions doctrine” to preclude the exercise of

such authority would substantially alter the body of

administrative law developed over the past century

and impair the executive branch’s ability to carry out

the functions given it in legislation duly enacted by

Congress.

This Court’s seminal decision in Chevron, U.S.A.,

Inc. v. NRDC, 467 U.S. 837 (1984), is illustrative. The

statute at issue there required the agency to regulate

air emissions from “stationary sources,” but the statute did not express an unambiguous intent as to how

that term should be applied to a single facility with

multiple smokestacks: Was the facility a single stationary source or many? 467 U.S. at 845. A decision

either way about the scope of the stationary-source

definition in Chevron potentially had major economic

consequences. The Court chose to treat the unclarity

as a delegation of authority to the agency to decide.

See id. at 843–45, 865–66. The Court could instead

have chosen to determine the best answer for itself,

rather than determining that the ambiguity reflected

a delegation of decisional authority. The one thing it

could not have done was use a clear-statement rule to

make the decision, because such a rule would point in

neither direction. None of the possible answers to the

significant question facing the agency had been

plainly provided by Congress.

19

The statutory question that petitioners here ask

the Court to decide is similar. Petitioners’ challenge

seeks to raise concerns about how the agency should

exercise its core powers over matters clearly within its

authority. The Clean Air Act plainly provides EPA authority to designate categories of stationary sources

that, in its judgment, cause or contribute significantly

to air pollution that may reasonably be anticipated to

endanger public health or welfare. See 42 U.S.C.

§ 7411(b)(1)(A); Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 424 (2011) (AEP). No one questions that

EPA long ago properly designated power plants as

such a category of stationary sources. Nor is there any

question that the statute requires regulation of existing sources within that category. See 42 U.S.C.

§ 7411(d); AEP, 564 U.S. at 424. It is equally clear that

the pollutant at issue here—the greenhouse gas carbon dioxide—falls within the category of air pollutants

for which the statute requires the development of

standards of performance. See 42 U.S.C. § 7411(d)(1).

Thus, this case does not implicate the Court’s expectation of clear congressional authorization for an

agency’s assumption of broad powers over significant

matters formerly thought to be outside its regulatory

authority. It is not one of those “extraordinary” cases

where an agency has sought to expand its authority to

regulate subjects beyond its purview. Instead, petitioners ask the Court to impose an extra-textual, inside-the-fenceline limit on EPA’s authority to determine the “best system of emission reduction,” which

forms part of the basis for the performance standards

called for by section 7411 of the Clean Air Act.

Whether such a limitation applies is a question whose

resolution in either direction may be a matter of significance, but it is exactly the kind of question to

20

which, as explained above, the expectation of heightened congressional clarity does not apply. Indeed, this

Court’s decisions reject the imposition of such limits

on an agency’s regulatory authority in the absence of

some expression of congressional intent in the language or structure of a statute. See Little Sisters, 140

S. Ct. at 2381; cf. Whitman, 531 U.S. at 465–68. The

mere possibility that a determination of the best system of emission reduction based on outside-thefenceline methods of reducing emissions could be unreasonable—depending on how EPA applied the

standard—provides no basis for invoking the “major

questions” guidepost to impose a non-textual limit on

EPA’s authority. See UARG, 573 U.S. at 332.

In the odd circumstances of this case, in which the

status quo is that there is no operative agency determination of the best system of emission reduction that

either injures the petitioners or provides a basis for

judicial review, this Court need not even explore the

scope and limits of the expectation that Congress will

speak clearly when assigning an agency regulatory

authority of vast economic and political significance.

Should the Court conclude, however, that some issue

concerning the definition of “best system of emission

reduction” under section 7411 is properly before it, the

Court should address that issue with the recognition

that the “major questions doctrine” has no bearing on

its resolution.

CONCLUSION

The Court should dismiss the petitions for writs of

certiorari as improvidently granted or for lack of jurisdiction, or affirm the judgment of the court of appeals.

21

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

January 2022