Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJan 25, 2022
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Nos. 20-1530, 20-1531, 20-1778 and 20-1780
In the
Supreme Court of the United States
WEST VIRGINIA, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
THE NORTH AMERICAN COAL CORPORATION,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
(For Continuation of Caption See Inside Cover)
On Writs of Certiorari to the United States Court of
A ppeals for the District of Columbia Circuit
BRIEF OF AMICI CURIAE THE NATIONAL LEAGUE
OF CITIES AND THE U.S. CONFERENCE OF
MAYORS IN SUPPORT OF RESPONDENTS
Michael Burger
Counsel of Record
Sabin Center for Climate
Change Law
435 West 116th Street
New York, NY 10027
(212) 854-2372
michael.burger@law.columbia.edu
Counsel for Amici Curiae
310103
WESTMORELAND MINING HOLDINGS LLC,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
NORTH DAKOTA,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Cities Are Grappling with the Effects
of Climate Change . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.
Limiting EPA’s Regulatory Authority
Would Frustrate Cities’ Efforts to Address
and Adapt to Climate Change . . . . . . . . . . . . . . 13
A. Adaptation Efforts . . . . . . . . . . . . . . . . . . . . 14
B. Mitigation Efforts . . . . . . . . . . . . . . . . . . . . 20
3.
The D.C. Circuit Correctly Held That This
Case Does Not Implicate Either the Major
Questions Doctrine or the Federalism
Clear Statement Canon . . . . . . . . . . . . . . . . . . . . 26
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ii
TABLE OF CITED AUTHORITIES
Page
CASES
Alden v. Maine,
527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 27
Am. Lung Ass’n v. Env’t Prot. Agency,
985 F.3d 914 (D.C. Cir. 2021) . . . . . . . . . . 27, 29, 30, 31
AT&T Corp. v. Iowa Utilities Board,
525 U.S. 366 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Brown v. Williamson,
529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Massachusetts v. E.P.A.,
549 U.S. 497 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,
Occupational Safety & Health Admin.,
No. 21A244, 2022 WL 120952
(U.S. Jan. 13, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
Cited Authorities
Page
Vermont Agency of Nat. Res. v.
U.S. ex rel. Stevens,
529 U.S. 765 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
STATUTES AND OTHER AUTHORITIES
5 U.S.C. § 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 7411(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 7607(d)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 7607(d)(9)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 28
80 Fed. Reg. 64662 (Oct. 23, 2015) . . . . . . . . . . . . . . . . . 25
2018 Green Works Orlando Community Action
Plan (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2020 - Cities Adaptation Actions, CDP . . . . . . . . . . . . 14
2021 Pacific Northwest Heat Wave ‘Virtually
Impossibl e’ With o ut Gl obal War min g,
Scientists Find, Yale Climate Connections
(Nov. 2, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A lison Saldanha et al., Dangerous Air: As
California Burns, America Breathes Toxic
Smoke, KCRW (Sept. 28, 2021) . . . . . . . . . . . . . . . . . 10
iv
Cited Authorities
Page
A lliance for a Sustainable Future, Mayors
Leading the Way on Climate (2020) . . . . . . . . . . . . . 13
Anchorage, AK Climate Action Plan (2019) . . . . . . . . 18
Boston Climate Preparedness Task Force, Climate
Ready Boston: Municipal Vulnerability to
Climate Change (2013) . . . . . . . . . . . . . . . . . . . . . . . . 15
Brian K. Sullivan et al., Drought Is the U.S.
West’s Next Big Climate Disaster, Bloomberg
Green (March 20, 2021) . . . . . . . . . . . . . . . . . . . . . . . 11
Caleb Robinson et al., Modeling Migration
Patterns in the USA Under Sea Level Rise,
PLoS ONE, Jan. 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Carbon Pollution Emission Guidelines for
Ex ist i ng St at iona r y Sou rces: Elect r ic
Utility Generating Units, 80 Fed. Reg. 64662
(Oct. 23, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Casey Crownhart, Cities Are Scrambling to
Prevent Flooding, MIT Tech. R. (July 20,
2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Charleston, South Carolina, Sea Level Rise
Strategy (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Charlotte Strategic Energy Action Plan . . . . . . . . . . . 21
v
Cited Authorities
Page
City and County of Denver, Climate Adaptation
Plan (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
City of Asheville et al., Planning for Climate
Resilience: City of Asheville, North Carolina
(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
City of Atlanta, Climate Action Plan (2015) . . . . . . . . . 20
City of Atlanta, Ga. Ord. 17-O-1654 (2017) . . . . . . . . . . 29
City of Austin, Austin Climate Equity Plan
(2020-21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25
City of Baltimore, Disaster Preparedness
and Planning Project (2013) . . . . . . . . . . . . . . . . . . . 16
City of Bloomington Climate Action Plan
(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
City of Boise, Boise’s Climate Action Roadmap
(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Charlotte, Resolution File No. 15-9759
(June 25, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Chelan, Wash. Code § 17.63 (2018) . . . . . . . . . . . 24
City of Columbia, South Carolina Resolution No.
R-2017-058 (June, 20 2017) . . . . . . . . . . . . . . . . . . . . . 22
vi
Cited Authorities
Page
City of Columbus, the Columbus Green Community
Plan Green Memo III (2015) . . . . . . . . . . . . . . . . . . . 21
City of Fayetteville, A rkansas Resolution
No. 45-17 (Jan. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
City of Fort Collins, Colo. Code § 5-30-E3401.5
(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
City of Helena, A Resolution Establishing a Goal
of 100% Clean, Renewable Electricity for the
Helena Community by 2030 (Feb. 24, 2020) . . . . . . 22
City of Knoxville Resolution No. R-265-2019
(Aug. 13, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Madison, CRANES Amended Resolution,
Leg. File. No. 45569 (Mar. 2017) . . . . . . . . . . . . . . . . 22
C i t y o f Ne w O r l e a n s , C l i m a t e A c t i o n
for a Resilient New Orleans (2017) . . . . . . . . . . . . . . 19
City of New York, N.Y. Intro. No. 2317 (2021) . . . . . . . . 23
City of Norfolk Virginia, Coastal Resilience
Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16
City of Norman, Resolution No. R-1718-120
(May 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
vii
Cited Authorities
Page
C it y of Pho en i x , C lim a t e Ac ti o n Pl a n :
2021 Edition (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
City of Pittsburgh, Climate Action Plan Version 3.0
(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of P rov idence, R .I. Cl i mat e Justice
Plan (Fall 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Cit y of S a i nt Pau l , Saint Pau l Clim a t e
Action & Resilience Plan (2019) . . . . . . . . . . . . . . . . 19
Cit y of Sa lt La ke Cit y, Ut a h, Code Ch.
21A.44.040.B (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
City of Santa Fe, Resolution No. 2019 - 47
(Sept. 11, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Seattle, Wash. Code § C401 (2015) . . . . . . . . . . 23
City of Sedona, Ariz. Code § 15.45.020 (2018) . . . . . . . 24
City of Spokane, Wash. Ord. No. C3566 8
(Aug. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
City of St. Louis, Missouri Resolution No. 124
(Oct. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
City of Tallahassee, Fla. Resolution No. 19-R-04
(Feb. 20, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
viii
Cited Authorities
Page
Climate Mayors Submit Comments on Proposed
Repeal of Clean Power Plan, Climate Mayors
(March 27, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Climate Change Adaptation, Philadelphia
Water Department, https://bit.ly/3tlcM1n
(last visited Jan. 12, 2022) . . . . . . . . . . . . . . . . . . . . . 18
Daniel Pol iti, Denver Records Worst Air
Quality of Any Major City in World as
Wildfires Burn, Slate (Aug. 08, 2021) . . . . . . . . . . . . 10
David Reidmiller et al., Ch. 1: Overview, in
4th National Climate Assessment . . . . . . . . . . . . . . . 12
Env’t Prot. Agency, Multi-Model Framework
for Quantitative Sectoral Impacts Analysis:
A Technical Report for the Fourth National
Climate Assessment (2017) . . . . . . . . . . . . . . . . . 12, 13
Francisco J. Doblas-Reyes et al., IPCC, Ch. 10:
Linking Global to Regional Climate Change,
in Climate Change 2021: The Physical Science
Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Heat Wave Melts Records Across East Coast,
NBC News (June 8, 2011) . . . . . . . . . . . . . . . . . . . . . . . 8
Hurricane Costs, NOA A Office for Coastal
Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ix
Cited Authorities
Page
Jason Vogel et al., Boulder County Climate
Change Preparedness Plan (2012) . . . . . . . . . . . . . . 17
Jenessa Duncombe, How the Ski Industry
Stopped Worrying and Learned to Love
Climate Activism, Eos (Sept. 24, 2021) . . . . . . . . . . . 9
John Balbus et al., Ch. 14: Human Health, in
4th National Climate Assessment . . . . . . . . . . . . . . . . 7
John Balbus et al., Human Health , in 4th
National Climate Assessment . . . . . . . . . . . . . . . . . . . 7
Justin S. Mankin et al., NOAA Drought Task
Force Report on the 2020–2021 Southwestern
U.S. Drought (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Kai Zhang et al., Impact of the 2011 Heat Wave on
Mortality and Emergency Department Visits
in Houston, Texas, Env’t Health, Jan. 2015 . . . . . . . 8
Karin Rogers et al., Triangle Regional Resilience
Assessment: Technical Report for the Triangle
Regional Resilience Partnership (2018) . . . . . . . . . 18
Katie Choe et al., Climate Resilient Design
Standards & Guidelines (2018) . . . . . . . . . . . . . . . . 15
x
Cited Authorities
Page
Keely Maxwell et al., Ch. 11: Built Environment,
Urban Systems, and Cities, in Impacts, Risks,
and Adaptation in the United States: Fourth
National Climate Assessment, Volume II
(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7
Kelly A. Burks-Copes et al., Risk Quantification
for Sustaining Coastal Military Installation
Assets and Mission Capabilities (2014) . . . . . . . . . . . 5
Laurelyn Sandkamp et al, Places at Risk:
Minneapolis Climate Change Vulnerability
Assessment (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Leah Nichols et al., Ch. 17: Sector Interactions,
Multiple Stressors, and Complex Systems, in
4th National Climate Assessment . . . . . . . . . . . . . . . . 8
Manas Sharma et al., The Age of the “Megafire,”
Reuters Graphics (Feb. 1, 2021) . . . . . . . . . . . . . . 9, 10
Mark Muro et al., How the Geography of
Climate Damage Could Make the Politics
Less Polarizing, Brookings (Jan. 29, 2019) . . . . . . . 13
Marshall Burke et al., The Changing Risk and Burden
of Wildfire in the United States, Procs. of the
Nat’l Acad. of Scis. of the U.S., Jan. 12, 2021 9, 10, 11
xi
Cited Authorities
Page
Matt Gough, Califor nia’s Cities Lead the
Way to a Gas-Free Future, Sierra Club
(July 22, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Mayor’s Office of Climate Resiliency, NYC . . . . . . . . . 17
Miami Forever Climate Ready, Miami . . . . . . . . . . . . . 17
Michon Scott, Climate & Skiing, Climate.gov . . . . . . . . 9
Mona Abdo et al., Impact of Wildfire Smoke on
Adverse Pregnancy Outcomes in Colorado,
2007 –2015, Int’t J. of Env’t Rsch. and Pub.
Health, Oct. 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
National Academies of Sciences, Attribution
of Extreme Weather Events in the Context
of Climate Change (2016) . . . . . . . . . . . . . . . . . . . . . . . 6
Office of Atmospheric Programs, Env’t Prot.
Agency, EPA 430-R-15-001, Climate Change
in the United States: Benefits of Global Action
(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
‘One of the Densest Fogs.’ Pittsburgh, Trapped
by Inversion, Begins to Clear, Pittsburgh
Post-Gazette, Dec. 25, 2019 . . . . . . . . . . . . . . . . . . . . . 8
Our Cities, Global Covenant of Mayors for
Climate and Energy . . . . . . . . . . . . . . . . . . . . . . . . . . 19
xii
Cited Authorities
Page
Patrick M. O’Connell & Tony Briscoe, In 2019
— the 2nd Wettest Year Ever in the U.S. —
Flooding Cost Illinois and the Midwest $6.2
billion. Scientists Predict More Waterlogged
Days Ahead, Chicago Tribune, Jan. 16, 2020 . . . . . . 6
Philadelphia Mayor’s Office of Sustainability
& ICF International, Growing Stronger:
Toward a Climate-Ready Philadelphia (2015),
https:// bit.ly/3FmvM1K; Climate Change
Adaptation, Philadelphia Water Department . . . . . 18
Philadelphia’s Municipal Clean Fleet Plan
(Oct. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Press Release, Mayor Turner Launches the
Resi l ient Houst on St rat eg y and Sig ns
Historic Executive Order to Prepare the
City for Future Disasters (Feb. 12, 2020) . . . . . . . . 18
R J Delfino et al., The Relationship of Respiratory
and Cardiovascular Hospital Admissions
to the Southern California Wildfires of 2003,
66 Occupational & Env’t Med. 189 (2008) . . . . . . . . 11
Resilient Analytics, The Impact of Climate
Change: Projected Adaptation Costs for
Boulder County, Colorado (2018) . . . . . . . . . . . . . . . 17
R e s i l i e n t Pe o p l e, Ea s t e r n S ho r e L a n d
Conservancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
xiii
Cited Authorities
Page
Roshanka Ranasinghe et al., IPCC, Ch. 12: Climate
Change Information for Regional Impact
and for Risk Assessment, in Climate Change
2021: The Physical Science Basis (2021) . . . . . . . . . . 6
S. Rep. No. 88-638 (1963) . . . . . . . . . . . . . . . . . . . . . . . . .30
Salt Lake City, Climate Adaptation Plan for
Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Salt Lake City, Resolution No. 22 (July 12, 2016) . . . 8, 23
Samuel A. Markolf, Ines M..L. Azevedo, Mark
Muro, and David G. Victor, Pledges and
Progress, Brookings (Oct. 2020) . . . . . . . . . . . . . . . . 22
Santa Fe Watershed Association, Forest and
Water Climate Adaptation: A Plan for the
Santa Fe Watershed (2014) . . . . . . . . . . . . . . . . . . . . 18
Sierra Club Ready for 100 Campaign . . . . . . . . . . . . . . 23
Simon F. B. Tett et al., Anthropogenic Forcings and
Associated Changes in Fire Risk in Western North
America and Australia During 2015/16, 99 Bull.
of the Am. Meteorological Soc’y S60 (2018) . . . . . . . . 9
Sjouke Y. Philip et al., Rapid Attribution Analysis
of the Extraordinary Heatwave on the Pacific
Coast of the US and Canada June 2021
(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
xiv
Cited Authorities
Page
South Carolina Hazard Mitigation Plan (2018) . . . . . 15
Southeast Florida Regional Compact, Regional
Impacts of Climate Change and Issues for
Stormwater Management (2015) . . . . . . . . . . . . . . . 17
State Adaptation Progress Tracker, Georgetown
Climate Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Story to Remember, 2014: August Flooding
in Metro Detroit, Crain’s Detroit Business
(Dec. 22, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Overlooked Inland Flooding Consequences
o f C l i m a t e C h a n g e , Na t i o n a l F l o o d
Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Theresa Davis, Late-Summer Heat Wave Breaks
Records, Albuquerque J., Aug. 26, 2019 . . . . . . . . . . . 8
Town of Abita Springs, Louisiana Resolution
(Mar. 21, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Understanding Our Changing Climate, NOAA
Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V i v i a n Ho, We s t Co a s t Ci ti e s Fa c e t h e
World’s Worst Air Quality as Wildfires
Rage, Guardian, Sept. 14, 2020 . . . . . . . . . . . . . . . . . 10
xv
Cited Authorities
Page
Weather It Together: A Cultural Resource
Hazard Mitigation Plan for the City of
Annapolis (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1
INTEREST OF AMICI CURIAE1
The National League of Cities (NLC), founded in
1924, is the oldest and largest organization representing
U.S. municipal governments. Its mission is to strengthen
and promote cities as centers of opportunity, leadership,
and governance. In partnership with 49 state municipal
leagues, NLC advocates for over 19,000 cities, towns, and
villages, where more than 218 million Americans live. Its
Sustainable Cities Institute provides NLC members with
resources on climate mitigation and adaptation.
The U.S. Conference of Mayors, founded in 1932,
is the official nonpartisan organization of the more
than 1,400 U.S. cities that are home to 30,000 people or
more. The Conference of Mayors established its Climate
Protection Center to assist with implementation of the
2005 Mayors Climate Protection Agreement, which over
1,000 mayors have joined, each pledging to reduce their
city’s greenhouse gas emissions levels to below 1990 levels.
Amici regularly submit amicus briefs to the Court
in support of the broad principles of federalism and
the vitality of state and local authority in our federalist
system. In this case, amici have a strong interest in the
proper interpretation and implementation of the Clean
Air Act’s cooperative federalism structure and ensuring
appropriate regulation of greenhouse gas emissions from
1. Pursuant to Supreme Court Rule 37.6, counsel for amici
curiae states that no counsel for a party authored this brief in
whole or in part, and no person or entity other than amici curiae
or their counsel made a monetary contribution to this brief’s
preparation or submission. All parties have consented to the filing
of this brief.
2
existing power plants. Local governments are climate
change’s first responders and have invested significant
public funds to mitigate and adapt to the impacts of a
changing climate. While the rules described in the briefing
in this case are not in effect, the Environmental Protection
Agency (EPA) is engaged in a new rulemaking. Given the
urgency and costs of the climate crisis for our nation’s
cities, towns, suburbs, and rural regions, the Court should
dismiss the petitions and allow EPA to fulfil its obligations
under the Clean Air Act and Administrative Procedure
Act by creating a new rule fit to meet this critical moment.
SUMMARY OF ARGUMENT
Cities across the country have responded to climate
change’s catastrophic impacts on their residents and their
budgets through a host of actions that seek to reduce
greenhouse gas emissions, protect against the shock of
future impacts and increase resilience in their wake, or
both. But greenhouse gas emissions do not respect state
or municipal borders, and local governments must rely
on federal regulation to supplement and support their
own initiatives. Petitioners’ proffered interpretations of
Section 111(d) of the Clean Air Act would needlessly and
wrongfully limit the tools that EPA, along with state and
local governments, have available to address power plants’
greenhouse gas emissions in an efficient, cost-effective
manner.
Petitioners’ challenge to EPA’s regulatory authority
cannot survive its numerous defects. For one, Petitioners
have no Article III standing to bring their challenge, as
the D.C. Circuit’s decision will not bring any agency rule
into effect and will not cause Petitioners any concrete
injury. Petitioners’ challenge is directed only at what EPA
3
might have done in the past or might theoretically do in the
future, neither of which provides a basis for a justiciable
case or controversy.
If this Court does nonetheless reach the substance
of Petitioners’ arguments concerning Section 111(d),
the Court should find that those arguments lack merit.
Petitioners base their interpretation of Section 111(d),
among other things, on both the major questions doctrine
and the federalism clear statement rule. Neither of those
interpretive tools supports Petitioners’ arguments.
The major questions doctrine does not apply because
this Court has already determined EPA’s authority and
mandate to regulate major power plants’ greenhouse gas
emissions under the Clean Air Act; there is thus no major
question left for EPA to decide. See Am. Elec. Power Co.
v. Connecticut, 564 U.S. 410, 426 (2011). Furthermore, the
major questions doctrine does not affect EPA’s definition of
the best system of emission reduction because EPA based
that definition on a technical, fact-specific analysis of
congressionally-mandated factors, not on some unbounded
policy preference.
The federalism clear statement rule likewise does not
support Petitioners’ interpretation. Section 111(d) invites
state participation in the regulation of a fundamentally
federal issue: interstate air pollution. This system of
cooperative federalism runs directly contrary to the
concerns about federal-state balance that Petitioners
put forward. What’s more, Petitioners’ interpretation of
Section 111(d) would in fact limit the tools that state and
local governments have available in regulating power
plants’ greenhouse gas emissions, and would thus itself
negatively impact state and local governance.
4
ARGUMENT
1. Cities Are Grappling with the Effects of Climate
Change
Over 80 percent of Americans live in urban areas—
and even more work in cities—meaning that amici’s
members are responsible for understanding the risks
to, and planning for the wellbeing of, the great majority
of Americans. The concentration of people, activity, and
infrastructure in cities makes them uniquely valuable
economically, but cities are also affected by a concentration
of adverse climate impacts, such as increased heat-related
deaths, dirtier air, damaged and disappearing coastlines,
longer droughts and other strains on water quantity and
quality, increased wildfire risk, and increasingly frequent
and severe storms. Climate change can also exacerbate
cities’ existing challenges, including social inequality,
aging and deteriorating infrastructure, and stressed
ecosystems. 2
Coastal communities from Florida and Louisiana to
Maine and New Hampshire to California and Oregon are
responding to the devastating effects of sea level rise,
and the associated high costs of infrastructure corrosion
and general disruption to daily life resulting from
shrinking coastlines. In cities like Baltimore, Maryland
and Miami, Florida, nuisance flooding is already routine
and is only expected to increase in frequency and depth
as seas rise and land subsides. On top of the grinding,
2. See Keely Maxwell et al., Ch. 11: Built Environment,
Urban Systems, and Cities, in Impacts, Risks, and Adaptation
in the United States: Fourth National Climate Assessment,
Volume II 438, 439 (2018), https://bit.ly/3mdsnvB [hereinafter
“4th National Climate Assessment”].
5
expensive nuisance of flooding looms the enormous threat
of destructive storm surges like those that accompanied
Hurricanes Ida, Maria, Isabel, Katrina, Rita, Harvey,
Florence, Michael, and Sandy. These and similar events
caused billions of dollars of damage to municipalities
in the Gulf Coast region and up and down the eastern
seaboard. 3 In Norfolk, Virginia, for example, sea level rise
and storm surge threaten low-lying neighborhoods and
the communities that reside there;4 these climate impacts
also threaten the Naval Station Norfolk—the largest
naval station in the U.S.—which could be “completely
submerge[]d” by “sea level rise coupled with significant
storm surge.”5 Moreover, non-coastal cities that are not
at direct risk from sea level rise will still feel its effects;
experts project roughly thirteen million coastal residents
in the U.S. may be displaced to non-coastal areas by 2100,
placing increased demand on municipal infrastructure.6
Storms impacting inland and riverine areas are also
increasingly fueled by climate change.7 In 2019, flooding
3. Hurricane Costs, NOAA Office for Coastal Management,
https://bit.ly/32hGLfw (last visited Jan. 20, 2022).
4. City of Norfolk Virginia, Coastal Resilience Strategy 3,
https://bit.ly/3F58vSH (last visited Dec. 10, 2021).
5. Kelly A. Burks-Copes et al., Risk Quantification for
Sustaining Coastal Military Installation Assets and Mission
Capabilities 9 (2014), https://bit.ly/30t4ics.
6. See Caleb Robinson et al., Modeling Migration Patterns
in the USA Under Sea Level Rise, PLoS ONE, Jan. 2020, https://
bit.ly/3zO659n.
7. The Overlooked Inland Flooding Consequences of Climate
Change, National Flood Services, https://bit.ly/3yJuf4g (last
visited Dec. 20, 2021).
6
caused $6.2 billion in damage across the Midwest. 8 In
2014, flooding due to extreme rainfall in Detroit, Michigan
caused over $1 billion in damages, and almost 10 billion
gallons of sewage overflows.9 Despite the city’s spending
hundreds of millions of dollars on stormwater system
improvements, a June 2021 storm likewise overwhelmed
Detroit’s stormwater systems, causing over 23,000
reports of damage.10 These are not isolated events: unless
significant precautions are taken, increasing precipitation
will overwhelm city transportation and storm water
drainage systems across the country.11
Heat waves made more frequent, hotter, and longer by
climate change similarly injure the associations’ members
and their residents.12 Heat waves are the deadliest type of
extreme weather, and because urban “heat islands” heat up
8. Patrick M. O’Connell & Tony Briscoe, In 2019 — the 2nd
Wettest Year Ever in the U.S. — Flooding Cost Illinois and the
Midwest $6.2 billion. Scientists Predict More Waterlogged Days
Ahead, Chicago Tribune, Jan. 16, 2020, https://bit.ly/3FgRuFp.
9. Story to Remember, 2014: August Flooding in Metro
Detroit, Crain’s Detroit Business (Dec. 22, 2014), https://bit.
ly/3DZjVWH.
10. See Casey Crownhart, Cities Are Scrambling to Prevent
Flooding, MIT Tech. R. (July 20, 2021), https://bit.ly/3ywGKAg.
11. Roshanka Ranasinghe et al., IPCC, Ch. 12: Climate
Change Infor mation for Regional Impact and for Risk
Assessment, in Climate Change 2021: The Physical Science Basis
12-20 (2021), https://bit.ly/3F6fk6F.
12. See National Academies of Sciences, Attribution of
Extreme Weather Events in the Context of Climate Change (2016),
bit.ly/1S2JHgf (concluding that attribution of particular heat
waves to climate change is scientifically well-supported).
7
faster and stay hotter than suburban and rural areas, city
dwellers are disproportionately affected by heat waves.13
News of heat wave-related deaths and hospitalizations has
become a tragic annual event;14 EPA estimates that failure
to mitigate climate change will result in an additional
12,000 deaths per year from extreme temperature by
2100 in 49 major U.S. cities.15 As an example: a 2021
heatwave caused temperatures in Portland, Oregon to
exceed 110 degrees Fahrenheit,16 and resulted in hundreds
of deaths across the Pacific Northwest and British
Columbia; researchers say that such an event “would
be virtually impossible without human-caused climate
change.”17 The impacts of heat waves have been acutely
felt in Pittsburgh, Pennsylvania; Phoenix, Arizona; and
Albuquerque, New Mexico, to name but a few affected
cities—and temperatures are on track to keep rising.18
13. John Balbus et al., Ch. 14: Human Health, in 4th National
Climate Assessment at 539, 544; Francisco J. Doblas-Reyes et al.,
IPCC, Ch. 10: Linking Global to Regional Climate Change, in
Climate Change 2021: The Physical Science Basis 10-122.
14. John Balbus et al., Human Health, in 4th National
Climate Assessment at 539, 544.
15. Office of Atmospheric Programs, Env’t Prot. Agency,
EPA 430-R-15-001, Climate Change in the United States: Benefits
of Global Action 8 (2015), https://bit.ly/2xc5uC0.
16. 2021 Pacific Northwest Heat Wave ‘Virtually Impossible’
Without Global Warming, Scientists Find, Yale Climate
Connections (Nov. 2, 2021), https://bit.ly/3IV0hz5.
17. Sjouke Y. Philip et al., Rapid Attribution Analysis of
the Extraordinary Heatwave on the Pacific Coast of the US and
Canada June 2021 (2021), https://bit.ly/30zLp7W.
18. Maxwell, K., supra note 2 at 441 (projecting increases
in the number of very hot days in Phoenix, Pittsburgh, and other
8
In Salt Lake City, Utah, higher temperatures exacerbate
air pollution that already threatens public health,19 and
Pittsburgh has seen an uptick in weather inversions like
the one that grounded flights and spiked pollution levels
for six days in December 2019.20 Heat waves often do costly
damage to infrastructure as well as to human health. The
2011 heat wave in Houston, Texas burst pipes and water
mains, 21 and in Minneapolis, Minnesota extreme heat has
caused roads to buckle. 22 Additionally, “[m]ore frequent
and severe heat waves in many parts of the United States
would increase stresses on electric power, increasing
the risk of cascading failures within the electric power
network that could propagate into other sectors.” 23
Even when temperatures do not reach such extreme
levels, rising temperatures can impact local economies in
numerous, often unexpected ways. As the snow-to-rain
cities); Theresa Davis, Late-Summer Heat Wave Breaks Records,
Albuquerque J., Aug. 26, 2019, https://bit.ly/32brXhZ.
19. Salt Lake City, Climate Adaptation Plan for Public
Health 6, 32 (2017), https://bit.ly/3sa9bTe.
20. ‘One of the Densest Fogs.’ Pittsburgh, Trapped by
Inversion, Begins to Clear, Pittsburgh Post-Gazette, Dec. 25,
2019, https://bit.ly/30yiHUX.
21. Kai Zhang et al., Impact of the 2011 Heat Wave on
Mortality and Emergency Department Visits in Houston, Texas,
Env’t Health, Jan. 2015, bit.ly/1M8xozN.
22. Heat Wave Melts Records Across East Coast, NBC News
(June 8, 2011), https://bit.ly/33tQDTz.
23. Leah Nichols et al., Ch. 17: Sector Interactions, Multiple
Stressors, and Complex Systems, in 4th National Climate
Assessment at 638, 652.
9
ratio of precipitation shifts toward rain and away from
snow, ski towns across the west, including Park City, Utah,
face snowpack shortages that threaten the local industry.24
“Half of all Northeast ski resorts may go out of business
by 2050, and climate modeling predicts that 90% of ski
resorts in the West won’t be financially viable by 2085 if
greenhouse gas emissions aren’t curtailed.” 25 Elsewhere
in the United States, particularly in New England and the
Mid-Atlantic, rising ocean temperatures are disrupting
fish habitats, creating profound economic risks for coastal
communities and seafood businesses. 26
Anthropogenic climate change is also increasing
the frequency and severity of wildfires in the United
States. 27 Over the past four decades, the burned area from
wildfires in the United States has roughly quadrupled,
with climate change responsible for roughly half of this
increase. 28 The Western U.S. has been particularly
24. Michon Scott, Climate & Skiing, Climate.gov (Nov. 19,
2018, last updated Sept. 10, 2021), https://bit.ly/3qlVQGd.
25. Jenessa Duncombe, How the Ski Industry Stopped
Worrying and Learned to Love Climate Activism, Eos (Sept. 24,
2021), https://bit.ly/3nlt1rE.
26. See Understanding Our Changing Climate, NOAA
Fisheries, https://bit.ly/329c6ks (last visited Jan. 18, 2022).
27. Simon F. B. Tett et al., Anthropogenic Forcings and
Associated Changes in Fire Risk in Western North America and
Australia During 2015/16, 99 Bull. of the Am. Meteorological Soc’y
S60, S60-S63 (2018); Marshall Burke et al., The Changing Risk
and Burden of Wildfire in the United States, Procs. of the Nat’l
Acad. of Scis. of the U.S., Jan. 12, 2021, https://bit.ly/3F4s1yD.
28. Marshall Burke et al., supra note 27. at 1, 5.
10
affected by recent, record-setting wildfires, with 10
million acres in the region consumed by wildfires in 2020
alone. 29 These fires have significant impacts on quality of
life in western cities: in recent years, Denver, Colorado;
Portland, Oregon; Seattle, Washington; and San Francisco
and Los Angeles, California have all plummeted to the
bottom of air quality rankings as a result of wildfires,
with Portland and Denver having the worst air quality
among all major global cities at specific points in time. 30
Increased wildfires also drive local costs associated with
wildfire suppression, loss of life and property, and adaptive
measures such as power shutoffs, which have substantial
economic consequences for American cities. 31 And while
the fires themselves are concentrated in the Western U.S.,
municipalities nationwide are feeling their effects. 32 Cities
including Washington, D.C.; Philadelphia, Pennsylvania;
Boston, Massachusetts; and Baltimore, Maryland have all
experienced significant increases in exposure to wildfire
smoke that prevailing winds carry across the country. 33
Wildfire smoke exposure can damage the heart, lungs,
29. Manas Sharma et al., The Age of the “Megafire,” Reuters
Graphics (Feb. 1, 2021), https://tmsnrt.rs/3yx2uvw.
30. Vivian Ho, West Coast Cities Face the World’s Worst
Air Quality as Wildfires Rage, Guardian, Sept. 14, 2020, https://
bit.ly/3raqIc0; Daniel Politi, Denver Records Worst Air Quality
of Any Major City in World as Wildfires Burn, Slate (Aug. 08,
2021), https://bit.ly/3reQEDi.
31. Marshall Burke et al., supra note 27 at 5.
32. Marshall Burke et al., supra note 27 at 3.
33. Alison Saldanha et al., Dangerous Air: As California
Burns, America Breathes Toxic Smoke, KCRW (Sept. 28, 2021),
https://kcrw.co/3ISH4Oh.
11
and brain, 34 and exposure during pregnancy correlates
with pre-term births, low birth weights, and negative
maternal health outcomes. 35 As climate change continues
to increase exposure to wildfire smoke in municipalities
across the country, exposure to such smoke may lead
to mortalities on the scale of the temperature-related
mortalities described above. 36
Along with more severe and frequent wildfires,
municipalities in the Western U.S. are suffering from
severe droughts that are made worse and more frequent
by climate change. Extreme drought conditions hinder
the livelihoods of ranchers in Staples, Texas and
farmers in Ventura, California, along with millions
of others living under the threat of tighter water-use
restrictions and more catastrophic wildfires caused by
dry conditions.37 As the National Oceanic and Atmospheric
Administration recently stated in its analysis of the
2020–2021 Southwestern U.S. drought:
[t]he warm temperatures that helped to make
this drought so intense and widespread will
continue (and increase) until stringent climate
34. Id.; see also R J Delfino et al., The Relationship of
Respiratory and Cardiovascular Hospital Admissions to the
Southern California Wildfires of 2003, 66 Occupational & Env’t
Med. 189 (2008).
35. Mona Abdo et al., Impact of Wildfire Smoke on Adverse
Pregnancy Outcomes in Colorado, 2007 –2015, Int’t J. of Env’t
Rsch. and Pub. Health, Oct. 2019, https://bit.ly/3q2c1ab.
36. Marshall Burke et al., supra note 27 at 5.
37. See Brian K. Sullivan et al., Drought Is the U.S. West’s
Next Big Climate Disaster, Bloomberg Green (March 20, 2021),
https://bloom.bg/3fh40t3.
12
mitigation is pursued and regional warming
trends are reversed. . . . Human-caused
increases in drought risk will continue to
impose enormous costs upon the livelihoods and
well-being of the ~60+ million people living
in the six states of the U.S. Southwest, as well
as the broader communities dependent on the
goods and services they produce. 38
As an example of such costs, in 2015 alone, drought
conditions caused roughly $5 billion in damages across
the Western U.S. 39
Considering the array of above-described impacts,
cities’ cost to recover from damage caused by climate
change are already great and will become enormous.
Without protective measures, annual hurricane damage
to coastal development could rise from $28 billion to $39
billion by 2075; up to $66 billion worth of current coastal
property may be below sea level by 2050, with up to $507
billion below sea level by 2100.40 By 2100, every year,
unmitigated climate change could cause 57,000 pollutionrelated deaths, at a cost of $930 billion; lead to 1.2 billion
lost labor hours, valued at $110 billion; and result in
hundreds of billions of dollars in infrastructure, water
38. Justin S. Mankin et al., NOAA Drought Task Force
Report on the 2020–2021 Southwestern U.S. Drought 4 (2021),
https://bit.ly/3yz6Lyw.
39. David Reidmiller et al., Ch. 1: Overview, in 4th National
Climate Assessment at 33, 66.
40. Env’t Prot. Agency, Multi-Model Framework for
Quantitative Sectoral Impacts Analysis: A Technical Report for
the Fourth National Climate Assessment (2017).
13
supply and other costs.41 What’s more, climate researchers
predict that of the ten metropolitan areas that will suffer
the most climate-related costs as a share of their metro
income, nine are located in Petitioner States.42
The acute relevance of anthropogenic climate change
to cities’ responsibilities has focused amici’s and their
members’ attention on the dangers of failing to mitigate
climate change, as well as on the pressing need to adapt.
Educated by their experiences and anticipating the still
more dramatic climatic change impacts looming in the
foreseeable future, amici write in opposition to Petitioners’
efforts to artificially constrain EPA’s authority to regulate
greenhouse gases pursuant to Section 111(d) of the Clean
Air Act.
2. Limiting EPA’s Regulatory Authority Would
Frustrate Cities’ Efforts to Address and Adapt to
Climate Change
Cities are not only on the front lines of climate
impacts—they are also at the forefront of climate change
adaptation and mitigation efforts nationwide. In fact,
in 2019, 60% of U.S. cities launched or significantly
expanded an initiative to address climate change, such
as a green vehicle procurement program or renewable
energy policy.43 Yet, local governments have little ability to
41. EPA, supra note 15 at 78.
42. Mark Muro et al., How the Geography of Climate Damage
Could Make the Politics Less Polarizing, Brookings (Jan. 29,
2019), https://brook.gs/3scdzRx.
43. Alliance for a Sustainable Future, Mayors Leading the
Way on Climate 2 (2020), https://bit.ly/2T4tMpY.
14
regulate the circumstances imposed on them by the wider
world, and greenhouse gas emissions from sources beyond
municipal borders will still impact people, infrastructure,
and resources inside them. The need for broader efforts
to reduce greenhouse gas emissions led 244 U.S. mayors
representing over 52 million Americans to ask EPA not
to repeal the Clean Power Plan, explaining “our local
efforts to address climate change are highly sensitive to
national policies like the Clean Power Plan, which shape
markets, steer state action, and have large direct impacts
on nationwide emissions.”44 Section 111(d) of the Clean
Air Act is an essential tool in the federal government’s
toolbox for regulating greenhouse gases, supporting local
initiatives to deliver climate solutions, and reducing the
adaptation costs local governments will bear over the
coming decades and centuries. Indeed, without stringent
federal regulation local governments will bear ever higher
costs in the years ahead.
A.
Adaptation Efforts
Cities nationwide are taking action to protect their
residents from climate change’s worst impacts: in
2020 alone, U.S. cities reported 859 separate climate
adaptation actions.45 The adaptation plans devised by
local governments reflect earnest efforts to deal with the
new climate norm, despite uncertainty as to whether they
should prepare for the best-case emissions scenarios or the
44. Climate Mayors Submit Comments on Proposed Repeal
of Clean Power Plan, Climate Mayors (March 27, 2018), https://
bit.ly/3a7V6ta.
45. 2020 - Cities Adaptation Actions, CDP, https://bit.
ly/3IVeBrm (last visited Dec. 1, 2021) (data filtered for U.S. cities).
15
worst. Notably, in many states, municipalities have been
the only level of government to develop strategies to adapt
to climate change.46 For example, cities in Mississippi,
Ohio, Oklahoma, and Georgia have all engaged in climate
adaptation planning despite a lack of state-level planning.
In other states, such as South Carolina, city-level planning
preceded and set the groundwork for state-level planning:
in 2015, Charleston, South Carolina published a Sea Level
Rise Strategy to recommend actions the city could take
to improve its resilience to sea-level rise and recurrent
flooding.47 Three years later, the state followed suit in
publishing a Hazard Mitigation Plan that sought to
account for the risks sea-level rise posed to its coastal
areas.48
Such planning and implementation is happening
in municipalities nationwide – the costs to cities are
significant, but the costs of not adapting would be far
higher. Boston, acutely aware of rising sea levels, has
been investing in adaptation since forming a Climate
Preparedness Task Force in 2013. 49 A lso in 2013,
Baltimore developed comprehensive responses—touching
46. See State Adaptation Progress Tracker, Georgetown
Climate Center, https://bit.ly/3IYeQBG (last visited Dec. 1, 2021).
47. Charleston, South Carolina, Sea Level Rise Strategy
(2015), https://bit.ly/31XDgee.
48. South Carolina Hazard Mitigation Plan (2018), https://
bit.ly/3FeI8tu.
49. Boston Climate Preparedness Task Force, Climate
Ready Boston: Municipal Vulnerability to Climate Change (2013),
https://bit.ly/32bNeIk; Katie Choe et al., Climate Resilient Design
Standards & Guidelines (2018), https://bit.ly/3a69cLS.
16
infrastructure, building codes, natural coastal barriers,
and public services—to threats from rising seas, heat
waves, and storms. 50 Elsewhere in Maryland, Annapolis
developed a first-in-the-nation Cultural Resources
Hazard Mitigation Plan in 2018 to mitigate climate
impacts on important cultural and historic landmarks, 51
and the Eastern Shore Climate Adaptation Partnership
has brought together local governments from across
the Eastern Shore to prepare for climate impacts. 52 In
Indiana, Bloomington’s Climate Action Plan seeks to
assist the city’s heat-, flooding-, and storm-vulnerable
populations in preparing for and mitigating climate
change impacts. 53 Norfolk, Virginia has undertaken
climate resilience and adaptation planning to protect its
public buildings, shipyards, naval facilities, homes, and
other private developments. 54 Similarly, Miami, West
Palm Beach, Coral Gables, Cutler Bay, and others in
the Southeast Florida Regional Climate Compact have
worked to reshape facilities for managing stormwater,
wastewater, and drinking water in anticipation of
50. City of Baltimore, Disaster Preparedness and Planning
Project (2013), bit.ly/1T3S0e3.
51. See Weather It Together: A Cultural Resource Hazard
Mitigation Plan for the City of Annapolis (2018), https://bit.
ly/3re60rG; Resilient People, Eastern Shore Land Conservancy,
https://bit.ly/3fkQR2d (last visited Jan. 12, 2022).
52. Resilient People, Eastern Shore Land Conservancy, https://
bit.ly/3fkQR2d (last visited Jan. 21, 2021).
53. City of Bloomington Climate Action Plan (2021), https://
bit.ly/30CRpgc.
54. City of Norfolk Virginia, Coastal Resilience Strategy,
https://bit.ly/3F58vSH (last visited Dec. 10, 2021).
17
hydrology reshaped by higher sea levels; Miami has also
developed the Miami Forever Climate Ready strategy
for reducing the increasing flood, heat, and storm risks
facing the city.55 New York, New York has developed a wide
array of adaptation resources and initiatives through the
Mayor’s Office of Climate Resiliency. 56
Boulder County, Colorado has been integrating
adaptation into its operations since adopting its 2012
Climate Change Preparedness Plan, and has conservatively
estimated the cost of adaptation measures through 2050
to be $96 million to $157 million. 57 Denver, Colorado has
likewise engaged in climate adaptation planning to protect
its residents and economy from climate impacts, including
potential damage to the region’s ski industry from
reduced snowpack and earlier snowmelt. 58 Anchorage,
Alaska recently published its Climate Action Plan, in
which it recognized that “[i]n the absence of adaptation
efforts, damage to public infrastructure caused by
climate change could cost Alaska $142 to $181 million
per year and a cumulative $4.2 to $5.5 billion by the end
55. See Southeast Florida Regional Compact, Regional
Impacts of Climate Change and Issues for Stor mwater
Management (2015), bit.ly/1RvtCfR; Miami Forever Climate
Ready, Miami, https://bit.ly/3HYP1Al (last visited Jan. 12, 2022).
56. Mayor’s Office of Climate Resiliency, NYC, https://
on.nyc.gov/3nHGxGf (last visited Jan. 12, 2022).
57. Jason Vogel et al., Boulder County Climate Change
Preparedness Plan (2012), https://bit.ly/3q1Vbbv; Resilient
Analytics, The Impact of Climate Change: Projected Adaptation
Costs for Boulder County, Colorado (2018), https://bit.ly/2SZ1Tjb.
58. City and County of Denver, Climate Adaptation Plan
32 (2014), https://bit.ly/3nmlclb.
18
of the century.”59 In 2014, Santa Fe, New Mexico created
a climate adaptation plan for the Santa Fe watershed.60
In April 2018, Asheville, North Carolina released a final
assessment report on planning for climate resilience.61
Chapel Hill and Durham likewise participate in the
Triangle Regional Resilience Partnership, which analyzes
and builds resilience to climate threats.62 2020 saw the
release of Resilient Houston, a framework to mitigate
flooding risks and improve climate readiness in Texas.63
Philadelphia, Pennsylvania published Growing Stronger:
Toward a Climate Ready Philadelphia in 2015 and is
currently building climate resiliency through its Green
City, Clean Waters plan.64 Minneapolis, Minnesota has
59. Anchorage, AK Climate Action Plan (2019), https://bit.
ly/3dUDCEQ.
60. Santa Fe Watershed Association, Forest and Water
Climate Adaptation: A Plan for the Santa Fe Watershed (2014),
https://bit.ly/2TgqHSN.
61. City of Asheville et al., Planning for Climate Resilience:
City of Asheville, North Carolina (2018), https://bit.ly/2VpRLS4.
62. Karin Rogers et al., Triangle Regional Resilience
Assessment: Technical Report for the Triangle Regional
Resilience Partnership 15 (2018), https://bit.ly/2UucItb.
63. Press Release, Mayor Turner Launches the Resilient
Houston Strategy and Signs Historic Executive Order to
Prepare the City for Future Disasters (Feb. 12, 2020), https://
bit.ly/3c3Wgrs.
64. Philadelphia Mayor’s Office of Sustainability & ICF
International, Growing Stronger: Toward a Climate-Ready
Philadelphia (2015), https://bit.ly/3FmvM1K; Climate Change
Adaptation, Philadelphia Water Department, https:// bit.
ly/3tlcM1n (last visited Jan. 12, 2022).
19
produced a Climate Change Vulnerability Assessment,65
and in 2019, Saint Paul adopted a Climate Action &
Resilience Action Plan.66 New Orleans, Louisiana has
also integrated adaptation efforts into its climate action
plan in order to prepare for sea level rise and more
intense storms.67 And in addition to recently updating its
Climate Action Plan, Phoenix, Arizona plans to develop
an Urban Heat Mitigation and Adaptation Plan along with
a corresponding Action Plan to mitigate its residents’
exposure to extreme heat.68 These are just a small sample
of the many American cities that have taken up to call to
protect their residents from climate change’s most severe
impacts.69
Cities are making significant strides in adapting to
climate change, but the burdens of adaptation are likely
to overwhelm cities without the federal government
exercising it statutory authority to significantly reduce
greenhouse gas emissions.
65. Laurelyn Sandkamp et al, Places at Risk: Minneapolis
Climate Change Vulnerability Assessment (2016), https://bit.
ly/3s7HOt3.
66. City of Saint Paul, Saint Paul Climate Action &
Resilience Plan 26–27 (2019), https://bit.ly/2TnhRUG.
67. City of New Orleans, Climate Action for a Resilient New
Orleans (2017), https://bit.ly/3tCkaFZ.
68. City of Phoenix, Climate Action Plan: 2021 Edition 162
(2021), https://bit.ly/3p5dcqf.
69. See Our Cities, Global Covenant of Mayors for Climate
and Energy, https://bit.ly/3GO5d6K (last visited Dec. 10, 2021).
20
B. Mitigation Efforts
Although federal regulation is both mandated by
statute and necessary to help ensure the health and
welfare of cities and their residents, local governments
around the U.S. are working to reduce their own
contributions to global greenhouse gas pollution. Their
mitigation strategies include committing to procurement
and deployment of renewable energy resources, investing
in energy efficiency, and electrifying buildings and modes
of transportation. In addition, local governments are
increasingly seeking to reduce greenhouse gas emissions
in a way that is equitable and that reduces local pollutants
in environmental justice areas.
Many local governments have made specific and
ambitious greenhouse gas reduction commitments.
For example, Iowa City, Iowa has resolved to reduce
greenhouse gas emissions 26 to 28 percent by 2025 as
compared to a 2005 baseline, and to reduce such emissions
by 80 percent by the year 2050. Atlanta, Georgia has set
a goal to reduce greenhouse gas emissions 40 percent by
2030 as compared to 2009 levels,70 and Orlando, Florida’s
goal targets a 90 percent reduction in greenhouse
gas emissions by 2040 as compared to 2007 levels.71
Pittsburgh, Pennsylvania’s Climate Action Plan commits
it to reduce greenhouse gas emissions by 20 percent as
70. City of Atlanta, Climate Action Plan (2015) at 5, https://
atlantaclimateactionplan.wordpress.com.
71. 2018 Green Works Orlando Community Action Plan
(2018) at 13, https://www.orlando.gov/files/sharedassets/public/
departments/sustainability/2018_orlando_communityactionplan.
pdf.
21
compared to a 2003 baseline by 2023, and 50 percent and
80 percent by 2030 and 2050, respectively.72 Austin, Texas
has committed to “net-zero community-wide greenhouse
gas emissions” by 2040,73 and Columbus, Ohio74 and
Boise, Idaho75 to carbon neutrality by 2050. Knoxville,
Tennessee has adopted a goal to reduce community-wide
greenhouse gas emissions 80 percent by 2050.76 Santa Fe
has resolved to make the city carbon neutral by 2040;77 and
Charlotte, North Carolina has set a goal of less than two
tons of carbon dioxide equivalent per resident per year by
2050.78 These commitments are just several of hundreds
72. City of Pittsburgh, Climate Action Plan Version 3.0
(2017) at 18, https://apps.pittsburghpa.gov/redtail/images/7101_
Pittsburgh_Climate_Action_Plan_3.0.pdf.
73. City of Austin, Austin Climate Equity Plan (2020-21)
at 102, https://w w w.austintexas.gov/sites/default/files/files/
Sustainability/Climate%20Equity%20Plan/Climate%20Plan%20
Full%20Document__FINAL.pdf.
74. City of Columbus, the Columbus Green Community Plan
Green Memo III (2015), https://www.columbus.gov/uploadedFiles/
Columbus/Programs/Get_Green/Survey/The%20Columbus%20
Green%20Community%20Plan%20FINAL.pdf.
75. City of Boise, Boise’s Climate Action Roadmap (2021)
at 1, https://www.cityofboise.org/media/12984/boise-climateroadmap.pdf.
76. City of Knoxville Resolution No. R-265-2019 (Aug. 13,
2019).
77. City of Santa Fe, Resolution No. 2019-47 (Sept. 11, 2019).
78. City of Charlotte, Resolution File No. 15-9759 (June
25, 2018) and Charlotte Strategic Energy Action Plan, https://
charlottenc.gov/CityCouncil/Committees/Documents/Archive%20
Doc/A rchive%20Doc%20EF/SEA P%20 -%20Executive%20
Summary%20Full%20Doc%20FINAL.pdf.
22
of greenhouse gas emission reduction goals set by local
governments around the U.S.79
To meet these commitments and many others like
them, numerous cities have also committed to a 100 percent
“clean” or renewable energy supply. 80 For example, St.
Louis, Missouri committed to 100 percent clean energy
by 2035, 81 and Fayetteville, Arkansas has committed to
the same by 2050.82 Other local governments to have made
such a commitment include Abita Springs, Louisiana (by
2030);83 Columbia, South Carolina (by 2036);84 Helena,
Montana (100 percent renewable electricity by 2030);85
Madison, Wisconsin (by 2050);86 Norman, Oklahoma (for
79. Samuel A. Markolf, Ines M..L. Azevedo, Mark Muro,
and David G. Victor, Pledges and Progress, Brookings (Oct. 2020)
at 1, https://www.brookings.edu/wp-content/uploads/2020/10/
FP_20201022_ghg_pledges_v4.pdf.
80. In this context, “clean” energy refers to renewable
energy and energy efficiency measures.
81. City of St. Louis, Missouri Resolution No. 124 (Oct. 2017).
82. City of Fayetteville, Arkansas Resolution No. 45-17 (Jan.
2018).
83. Town of Abita Springs, Louisiana Resolution (Mar. 21,
2017).
84. City of Columbia, South Carolina Resolution No. R-2017058 (June, 20 2017).
85. City of Helena, A Resolution Establishing a Goal of 100%
Clean, Renewable Electricity for the Helena Community by 2030
(Feb. 24, 2020).
86. City of Madison, CRANES Amended Resolution, Leg.
File. No. 45569 (Mar. 2017).
23
electricity by 2035 and for all sectors by 2050);87 Salt Lake
City, Utah (by 2032);88 Spokane, Washington (by 2030);89
and Tallahassee, Florida (by 2050).90 In all, more than 180
local governments have committed to 100 percent clean
energy,91 a number that does not account for ambitious
renewable energy goals that fall short of a 100 percent
target.
In add ition t o procu r i ng and comm itti ng t o
deploy renewable energy, cities’ efforts to reduce
operational and community-w ide g reenhouse gas
emissions rely heavily on reducing emissions from most
communities’ two highest-emitting sectors: buildings
and transportation. Both of these sectors must undergo
near-total electrification in order to allow cities to achieve
their greenhouse gas emissions reduction targets. More
than 50 local governments in California have enacted
building electrification requirements or their functional
equivalents, 92 as have New York City 93 and Seattle. 94
87. City of Norman, Resolution No. R-1718-120 (May 2018).
88. Salt Lake City, Resolution No. 22 (July 12, 2016).
89. City of Spokane, Wash. Ord. No. C35668 (Aug. 2018).
90. City of Tallahassee, Fla. Resolution No. 19-R-04 (Feb.
20, 2019).
91. Sierra Club Ready for 100 Campaign, https://www.
sierraclub.org/ready-for-100.
92. For full list, see Matt Gough, California’s Cities Lead the
Way to a Gas-Free Future, Sierra Club (July 22, 2021, last updated
Dec. 13, 2021), https://w w w.sierraclub.org/articles/2021/07/
californias-cities-lead-way-gas-free-future.
93. City of New York, N.Y. Intro. No. 2317 (2021).
94. City of Seattle, Wash. Code § C401 (2015).
24
Local governments have also invested in electric vehicle
charging infrastructure, or enacted policies that require or
incentivize private property owners to do so. For example,
several local building codes now have EV charging or
EV-readiness requirements, including in Atlanta;95 Fort
Collins, Colorado;96 and Sedona, Arizona.97 Other cities
require or incentivize electric vehicle chargers through
their zoning codes; Salt Lake City mandates one electric
vehicle charging space for every 25 parking spaces in new
multi-family buildings.98 Others, like Chelan, Washington,
have updated their zoning codes to simplify permitting
and siting requirements for small charging stations. 99
Moreover, cities around the country have steadily been
electrifying their municipal vehicle fleets.100 While these
electrification efforts are essential to reducing emissions
from the buildings and transportation sectors, they rely
on the federal government doing its part to ensure that
sources of electricity also reduce their own greenhouse
gas pollution.
95. City of Atlanta, Ga. Ord. 17-O-1654 (2017)
96. City of Fort Collins, Colo. Code § 5-30-E3401.5 (2019).
97. City of Sedona, Ariz. Code § 15.45.020 (2018).
98. City of Salt Lake City, Utah, Code Ch. 21A.44.040.B
(2019).
99. City of Chelan, Wash. Code § 17.63 (2018).
100. See, e.g., Philadelphia’s Municipal Clean Fleet Plan
(Oct. 2021), https://w w w.phila.gov/media/20211006130414/
Philadelphia-Municipal-Clean-Fleet-Plan-202110.pdf; Climate
Mayors Electric Vehicle Purchasing Collaborative, https://
driveevfleets.org.
25
Local governments have emerged as leaders in
developing greenhouse gas emission reduction strategies
that aim to redress the disproportionate and harmful
health impacts of air pollution experienced by many
environmental justice communities. For example,
Providence, Rhode Island’s Climate Justice Plan identifies
“frontline communities” located near highways, ports, and
industrial areas with greater exposure to air pollution,
plotting a path to reducing greenhouse gas emissions
that would reduce health risks in these neighborhoods.101
Austin, Texas’s Climate Equity Plan identifies strategies
for local air pollution reductions in all areas of the city.102
In promulgating the Clean Power Plan, EPA found that
environmental justice communities are more vulnerable
to climate change impacts, and also disproportionately
located close to power plants that emit conventional
pollutants, which pose even more immediate threats to
local public health.103 The Clean Power Plan sought to
mitigate these impacts with the Clean Energy Incentive
Program, and by requiring states to engage with
vulnerable communities in developing their plans to limit
power plant pollution.104 In these ways, the Clean Power
Plan buttressed local governments’ efforts to address
101. City of Providence, R.I. Climate Justice Plan (Fall 2019)
at 16, https://www.providenceri.gov/wp-content/uploads/2019/10/
Climate-Justice-Plan-Report-FINAL-English.pdf.
102. City of Austin, Texas Climate Equity Plan (202021), https://w w w.austintexas.gov/sites/default /f iles/f iles/
Sustainability/Climate%20Equity%20Plan/Climate%20Plan%20
Full%20Document__FINAL.pdf.
103. 80 Fed. Reg. 64662, 64670 (Oct. 23, 2015).
104. Id.
26
climate change in an equitable way responsive to the needs
of environmental justice communities. It is critical that
EPA be able to create similarly flexible programs in the
new rule for existing power plants.
3. The D.C. Circuit Correctly Held That This Case
Does Not Implicate Either the Major Questions
Doctrine or the Federalism Clear Statement Canon
The D.C. Circuit has stayed vacatur of EPA’s repeal
of the Clean Power Plan, and EPA is now in the process
of developing and promulgating a new rule to regulate
greenhouse gas emissions from existing power plants. See
Fed. Gov’t Br. 16–17. There is no agency rule, no exercise of
agency authority, and no agency statutory interpretation
to which this Court can apply the major questions doctrine
or the federalism clear statement canon or any other tool
of statutory construction.105 As Respondents argue, this
absence nullifies Petitioners’ standing before this Court
and moots any prior case or controversy, as Petitioners
will suffer no cognizable injury from the D.C. Circuit’s
vacatur of the ACE Rule. See Fed. Gov’t Br. 15–23; NonGov’t Orgs. & Trade Ass’ns Br. 23–32. Without a presently
justiciable controversy, Petitioners request this Court to
issue an advisory opinion based on speculation regarding
EPA’s future rulemakings. See Fed. Gov’t Br. 18–21;
Power Cos. Br. 20–21; Non-Gov’t Orgs. & Trade Ass’ns
105. Petitioner States’ brief makes this point crystal clear.
In describing the effects of the Clean Power Plan, Petitioners
refer twenty-three times to what the rule “would have” done.
Petitioners never refer to what the rule “will” do. The Clean Power
Plan, of course, “will” do nothing. And, as noted further below,
the D.C. Circuit’s opinion does not commit or limit EPA’s exercise
of interpretive discretion in any meaningful way.
27
Br. 23–32. The Constitution does not grant the judiciary
power to issue advisory opinions; in any event, the ripeness
doctrine precludes these speculative complaints. See NonGov’t Orgs. & Trade Ass’ns Br. 23–32.
Should the Court nonetheless undertake its review of
the decision below, it should recognize that Petitioners’
proffered application of the major questions doctrine and
the federalism clear statement rule would fundamentally
undermine Section 111(d)’s cooperative federalism regime;
as Respondents point out, Petitioners’ interpretive
approach would limit EPA’s ability to work with states
and cities to cost-effectively limit the greenhouse gas
emissions from existing power plants that are causing
the climate change harms experienced by localities
nationwide. See, e.g., Fed. Gov’t Br. 24–30, 51; New York
Br. 28–33.
In contrast, Respondents correctly argue that the
D.C. Circuit panel majority properly concluded that this
case does not implicate the major questions doctrine. Am.
Lung Ass’n v. Env’t Prot. Agency, 985 F.3d 914, 958–968
(D.C. Cir. 2021); see, e.g., Fed. Gov’t Br. 44–50; New York
Br. 38–45. Unlike cases such as Brown v. Williamson, 529
U.S. 120, 159 (2000), and Utility Air Regulatory Group
v. EPA, 573 U.S. 302, 322 (2014), this Court has already
clarified EPA’s statutory authority—and its mandate—to
regulate both the subject matter and entities at issue:
greenhouse gas emissions and major fossil fuel power
plants. See Am. Elec. Power Co. v. Connecticut, 564 U.S.
410, 426 (2011) (“Congress delegated to EPA the decision
whether and how to regulate carbon-dioxide emissions
from powerplants”); see also Massachusetts v. E.P.A., 549
U.S. 497, 532–34 (2007) (“Because greenhouse gases fit
28
well within the Clean Air Act’s capacious definition of ‘air
pollutant,’ we hold that EPA has the statutory authority
to regulate the emission of such gases from new motor
vehicles”). The Clean Power Plan would not have regulated
any sources other than major stationary sources already
regulated under the Clean Air Act, and therefore would
not have represented an expansion of agency authority;
nor would it have constituted a detour outside of the
agency’s “sphere of expertise.” Nat’l Fed’n of Indep. Bus.
v. Dep’t of Lab., Occupational Safety & Health Admin.,
No. 21A244, 2022 WL 120952, at *3 (U.S. Jan. 13, 2022).
The question, then, is whether the major questions
doctrine precludes EPA from defining the best system
of emission reduction (BSER) in the way that it did,
namely, as including emission-control measures that go
beyond the individual physical plant, either because that
definition is impermissible, arbitrary and capricious, or
otherwise contrary to law. 5 U.S.C. § 706(2), 42 U.S.C.
§ 7607(d)(1)(C), (d)(9)(A). Pursuant to Section 111(a)(1),
Congress directed EPA to base its BSER determination
on a technical accounting of several congressionallyspecified factors: the cost of achieving emissions
reduction, nonair quality health and environmental
impacts, effects on energy requirements, whether the
system of emissions reduction has been adequately
demonstrated, and the extent of “emission reduction.” 42
U.S.C. § 7411(a)(1). Adhering to Congress’ directive, EPA
assessed a number of approaches the agency found to be
“adequately demonstrated,” including approaches that
relied exclusively on measures that could be implemented
solely at a stationary source, and determined they were
not the “best,” due to a range of considerations. See Carbon
Pollution Emission Guidelines for Existing Stationary
29
Sources: Electric Utility Generating Units, 80 Fed. Reg.
64662, 64727–28, 64769 (Oct. 23, 2015) (“The narrow
interpretation advocated by some commenters would
permit consideration only of potential CO2 reduction
measures that are either more expensive than building
blocks 2 and 3 . . . or measures capable of achieving far less
reduction in CO2 emissions”). This technical, fact-specific
analysis is exactly what Congress determined EPA—not
itself, nor the judiciary, nor the states, nor the regulated
industry—was best positioned to conduct. As the D.C.
Circuit explained, “The major questions doctrine is meant
to discern, not override, such statutory judgments.” Am.
Lung Ass’n, 985 F.3d at 964.
In addition, the D.C. Circuit panel majority properly
concluded that this case does not implicate the federalism
clear statement canon. Am. Lung Ass’n, 985 F.3d at 968–
71. See, e.g., Fed. Gov’t Br. 50–51; New York Br. 45–47.
Indeed, the decision below poses no risk to state or local
authority, autonomy, or sovereignty, or to the federal-state
balance of powers.
First, the D.C. Circuit opinion does not commit EPA
to any particular course of action, nor to any particular
statutory interpretation, in its forthcoming Section 111(d)
rule. See, e.g., Fed Gov’t Br. 47–48; New York Br. 31. It is
possible that EPA will determine that the “best system of
emission reduction” consists of measures that may only be
taken at an individual regulated source, just as Petitioners
argue they should. Accordingly, there is, at this point, not
even a theoretical risk to the purported federalism values
Petitioners claim are at stake.
30
Second, the D.C. Circuit opinion properly concluded
that the statutory design of Section 111(d) and the
approach taken by EPA in creating the Clean Power Plan
do not intrude upon federalism values. The federalism
clear statement rule protects areas of traditional state
responsibility from federal encroachment in the absence of
clear statutory language. See Vermont Agency of Nat. Res.
v. U.S. ex rel. Stevens, 529 U.S. 765, 787 (2000). But, as the
D.C. Circuit rightly acknowledged, interstate air pollution
is a matter of traditional federal concern. Am. Lung Ass’n,
985 F.3d at 968; see Int’l Paper Co. v. Ouellette, 479 U.S.
481, 492 (1987) (“the control of interstate pollution is
primarily a matter of federal law”). By its very nature,
the regulation of interstate air pollutants (like greenhouse
gases) benefits from a coordinated federal approach, and
the Clean Air Act was enacted with this fact in mind. S.
Rep. No. 88-638, at 3, 5 (1963) (“The nationwide character
of the air pollution problem requires an adequate Federal
program to lend assistance, support, and stimulus to State
and community programs.”). Federal regulation in this
area comes as no surprise to amici, representing municipal
governments nationwide; in fact, local governments expect
and rely upon it.
What’s more, Section 111(d) engages states in a
cooperative federalism regime, making the federalism
clear statement rule less applicable still. Section 111(d)
provides states with the authority and discretion to
establish standards of performance and develop state
plans for their implementation, tailored to the states’
particular circumstances. See Am. Lung Ass’n, 985 F.3d
at 962–963; Fed. Gov’t Br. 27–30; New York Br. 28–33.
Such a regime is emblematic of a federalism that “treats
the States in a manner consistent with their status as . . .
31
joint participants in the governance of the Nation.” Alden
v. Maine, 527 U.S. 706, 748 (1999). And as Justice Scalia
noted in AT&T Corp. v. Iowa Utilities Board, federalism
concerns should not guide judicial interpretation when
the statute at hand invites state participation in the
cooperative administration of a federal regulatory regime,
as is the case here. 525 U.S. 366, 378 n.6 (1999).
Moreover, the Clean Power Plan’s alternative
compliance measures—which themselves demonstrate
the authority and discretion left to the states—included
numerous measures that would have benefited local
governments, such as the Clean Energy Incentive
Program. See Am. Lung Ass’n, 985 F.3d at 968 at 963 n.10;
80 Fed. Reg. 64662 at 64829 (“State participation in the
[Clean Energy Incentive Program] program is optional;
the EPA is establishing this program as an additional
flexibility to facilitate achievement of the CO2 emission
reductions required by this final rule, regardless of the
type of state plan a state chooses to implement.”). As
Respondents note, the interpretation of Section 111(d)
that actually limits States’ governance options is the one
undergirding the Clean Power Plan Repeal and Affordable
Clean Energy Rules, not the one put forward by the D.C.
Circuit. See, e.g., Fed. Gov’t Br. 24–25; New York Br. 28–
33. States and local governments should not be prohibited
from adopting outside-the-fenceline mechanisms that
allow for efficient, cost-effective compliance with EPA’s
emissions guidelines.
32
CONCLUSION
Neither the major questions doctrine nor the
federalism clear statement rule weigh against the D.C.
Circuit’s interpretation of the Clean Air Act. Should the
Court proceed in reviewing the decision below despite
the absence of an extant agency rule or concrete injury to
Petitioners, amici urge the Court to uphold the decision.
Respectfully submitted,
Michael Burger
Counsel of Record
Sabin Center for Climate
Change Law
435 West 116th Street
New York, NY 10027
(212) 854-2372
michael.burger@law.columbia.edu
Counsel for Amici Curiae
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.