Reply 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.

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

___________

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

___________

REPLY OF PETITIONER WESTMORELAND

MINING HOLDINGS LLC, No. 20-1778

___________

MARK W. DELAQUIL

ANDREW M. GROSSMAN

MARTIN T. BOOHER

JOSHUA T. WILSON

Counsel of Record

BAKER & HOSTETLER LLP JENNA M. LORENCE

2000 Key Tower

BAKER & HOSTETLER LLP

127 Public Square

1050 Connecticut Ave., N.W.

Cleveland, Ohio 44114

Washington, D.C. 20036

(202) 861-1697

(216) 621-0200

agrossman@bakerlaw.com

i

TABLE OF CONTENTS

REPLY BRIEF ........................................................... 1

I.

Section 111 Does Not Authorize EPA

To Restructure the Nation’s

Electricity Sector ............................................ 2

A. Turning Off Sources Is Not a

“System of Emission Reduction” ............... 2

B. Whether and How To Restructure

an Entire Industrial Sector Is a

Paradigmatic Major Question ................... 7

C. No Respondent Identifies Clear

Congressional Authorization for

EPA To Restructure Industries ............... 13

II.

Respondents’ Interpretation of

Section 111 Brooks No Intelligible

Principle Cabining EPA Discretion .............. 16

III. Respondents’ Various Justiciability

Arguments Are Meritless .............................. 19

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

CASES

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

& Hum. Servs.

141 S. Ct. 2485 (2021) ............................... 10, 12, 13

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................... 15

City of Chicago v. Fulton,

141 S. Ct. 585 (2021) ............................................. 21

Diamond v. Charles,

476 U.S. 54 (1986) ................................................. 19

Essex Chem. Corp. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973) ....................... 3, 9, 17

FERC v. Elec. Power Supply Ass’n,

577 U.S. 260 (2016) ................................................. 4

Friends of the Earth v. Laidlaw Envt’l

Servs., Inc.,

528 U.S. 167 (2000) ............................................... 22

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................................... 19

Indus. Union Dep’t, AFL-CIO v. Am.

Petrol. Inst.,

448 U.S. 607 (1980) ............................................... 19

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

276 U.S. 394 (1928) ............................................... 17

iii

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................... 21

Morrison v. Olson,

487 U.S. 654 (1988) ................................................. 8

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) ................................. 7

NFIB v. OSHA,

142 S. Ct. 661 (2022) ................................. 11, 13, 14

Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373 (2015) ............................................... 13

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ............................................... 13

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) ..................................... 13, 16

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ............................... 14

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ......................................... 10, 19

Whitman v. Am. Trucking Assn’s, Inc.,

531 U.S. 457 (2001) ............................................... 18

iv

STATUTES

42 U.S.C. § 7409 ....................................................... 18

42 U.S.C. § 7411 ............................................... passim

42 U.S.C. § 7416 ......................................................... 6

REGULATIONS

40 C.F.R. § 60.5710 .................................................. 21

40 C.F.R. § 60.5740 .................................................. 20

40 C.F.R. § 60.6855 .................................................. 20

70 Fed. Reg. 28,606 (May 18, 2005) .......................... 7

80 Fed. Reg. 64,662 (Oct. 23, 2015) ................. passim

80 Fed. Reg. 64,966 (Oct. 23, 2015) ......................... 11

84 Fed. Reg. 32,520 (July 8, 2019)................... passim

85 Fed. Reg. 18,448 (April 2, 2020) ......................... 10

OTHER AUTHORITIES

Decl. of Jeremy Cottrell, Am. Lung Assoc. v.

EPA, (No. 19-1140)

(D.C. Cir. Aug. 13, 2020)....................................... 20

EPA, Clean Air Markets, Facility Level

Comparisons, “Coal-fired Characteristics

and Controls: 2020” (Feb. 3, 2021) ....................... 20

EPA, Emissions & Generation Resource

Integrated Database ............................................. 20

v

Oliver Wendell Holmes, Jr., The Common

Law (1881) ............................................................... 4

National Climate Task Force, President

Biden’s Whole-of-Government Effort to

Tackle the Climate Crisis (2021) ............................ 8

U.S. Energy Info. Admin., State Electricity

Profiles (Nov. 4, 2021) ........................................... 21

REPLY BRIEF

The fundamental issue in this case is the Environmental Protection Agency’s asserted power to restructure entire industries by setting emission limitations

based on turning off regulated sources—what the

Clean Power Plan called “reduced utilization” or,

when accompanied with increased production by

other sources, “shifting.” 80 Fed. Reg. 64,662, 64,780,

64,728 (Oct. 23, 2015). In the ACE Rule, EPA concluded that those contrivances are “precluded by the

statute” under “the major questions doctrine,” justifying repeal of the CPP. 84 Fed. Reg. 32,520, 32,529

(July 8, 2019). The court below disagreed and therefore vacated the repeal.

Although Respondents defend that decision, they

refuse to grapple with statutory language and context

that preclude reduced utilization of sources from being a component of a “system of emission reduction.”

And they do not seriously engage the implications of

empowering EPA to target any category of sources in

the Nation—from refineries to factories to homekitchen ranges—for reduced utilization in service of

the agency’s decarbonization objectives. Whether and

how to restructure entire sectors of the economy to

drive down emissions is a question of overriding economic and political significance. Respondents do not

even contend that Congress conferred on EPA the

awesome power to answer that question. As EPA was

constrained to conclude in the ACE Rule, Congress

did not.

2

I.

Section 111 Does Not Authorize EPA To

Restructure the Nation’s Electricity Sector

A.

Turning Off Sources Is Not a “System of

Emission Reduction”

1. No Respondent explains how, as a textual matter, reduced utilization of a source qualifies as a “system of emission reduction.” The Government, like

other Respondents, emphasizes (at 31) capacious definitions of “system” that it says do not distinguish between “inside- and outside-the-fenceline measures.”

But then it simply asserts, without elaboration, that

“system” therefore encompasses measures like shifting and trading that employ reduced utilization of

sources to achieve emission reductions. See also

ConEd.Br.28–29; States.Br.21; NGO.Br.34. This obvious non sequitur reveals the emptiness of the claim

that turning off a source—the thing that brings about

the emission reduction—is a “system of emission reduction.”

Nor do Respondents attempt to reconcile that claim

with the broader context and specific terms of the

“standard of performance” definition. That definition

circumscribes EPA discretion through its requirements that emission guidelines be “achievable” by

sources and based on “system[s] of emission reduction” that are “adequately demonstrated.” 42 U.S.C.

§ 7411(a)(1). Those requirements limit how far down

EPA can drive emissions because the most stringent

candidate systems may not be “adequate demonstrated” as to a given source category or may not re-

3

sult in a broadly “achievable” level of emission reduction. In this way, the statute contemplates that EPA

will choose from among the class of “system[s] of emission reduction” susceptible to that kind of analysis.

See 84 Fed. Reg. at 32,524 (concluding that “Congress

expressly limited the universe of systems of emission

reduction from which the EPA may choose the

BSER….”). Traditional measures like control technologies and work practices fit the bill.

But reduced utilization does not. It is inherently

“demonstrated” for any source and inherently

“achievable” all the way down to zero, leaving EPA

free to set rates at any level—the very thing Congress

rejected by enacting specific statutory criteria to

cabin

the

agency’s

discretion.

See

Westmoreland.Br.36–37, 42–43. Likewise, reduced utilization writes out of the statute the other factors—“cost,”

“energy requirements,” and “any nonair quality

health and environmental impact”—because they are

applicable only to the determination of whether an

emission-reduction system is “adequately demonstrated.” 42 U.S.C. § 7411(a)(1).1 As noted, reduced

1 Respondents’ arguments assume that these factors apply di-

rectly to EPA’s consideration of a candidate system, as opposed

to whether such system is adequately demonstrated. E.g.,

U.S.Br.36, 49; ConEd.Br.24; NGO.Br.48; States.Br.35–36. But

the statute directs that these factors be “tak[en] into account” in

“determin[ing] [whether a system] has been adequately demonstrated,” 42 U.S.C. § 7411(a)(1); see also ConEd.Br.48 (acknowledging as much); NGO.Br.34 (same). The statute has been so understood from the very beginning. See Essex Chem. Corp. v.

Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973).

4

utilization always is. Moreover, if Congress had intended EPA to base emission rates on reduced utilization, it would have set some standard defining how far

down EPA should go. The standard it did legislate,

“best,” provides no clue: is it best to run a coal-fired

power plant half the time, one-third, or not at all? All

of this demonstrates that reduced utilization—that is,

turning off the source—is not what Congress had in

mind when it directed EPA to identify the “best system of emission reduction.”

At base, Respondents’ interpretation allows EPA to

free itself from every statutory constraint on its discretion and set emission limits at any level merely by

choosing to go with reduced utilization. That is absurd. The only sound conclusion is that the statute

contemplates

traditional

emission-reduction

measures and rules out the measure of simply turning

off the source.

2. Rather than confront the statutory context, Respondents deny that there is any difference between

reduced utilization and traditional emission-control

measures that may increase costs and thereby incidentally reduce utilization. U.S.Br.40; ConEd.Br.41.

But “[e]ven a dog distinguishes between being stumbled over and being kicked.” Oliver Wendell Holmes,

Jr., The Common Law 3 (1881). This Court recognized

that distinction in FERC v. Electric Power Supply

Ass’n, holding that, while FERC may regulate wholesale electricity rates in ways that “have natural consequences at the retail level,” it may not regulate retail markets directly. 577 U.S. 260, 280–81 (2016).

5

The former is “of no legal consequence,” but the latter

“exceed[s] FERC’s authority.” Id.

So too here. EPA has the authority to identify (say)

scrubbers as the “best system of emission reduction”

for a source category, even though that may well competitively disadvantage regulated facilities. That is

qualitatively different from setting a BSER based on

turning them off. The former regulates emissions, but

the latter regulates industrial production, which has

never been EPA’s domain. To conflate the two is to

blink both reality and decades of case law observing

the difference between incidental consequences and

intended outcomes. See Westmoreland.Br.33–35.

3. Respondents’ statutory arguments focus on the

latitude historically afforded States in complying with

Section 111(d) rules, on the premise that EPA’s discretion in identifying a BSER is equivalent to State

discretion in compliance. U.S.Br.30; States.Br.28–33.

This line of argumentation is wrong because the

premise is wrong. Section 111 on its face decouples

the setting of BSER from compliance. States’ discretion in compliance—an issue not before the Court—

does not inform EPA’s discretion in setting the BSER.

Section 111(d) regulation involves two steps. First,

EPA identifies “the best system of emission reduction”

that has been adequately demonstrated. 42 U.S.C.

§ 7411(a)(1). Second, States submit plans “establish[ing] standards of performance” for existing

sources that “reflect[] the degree of emission limitation achievable through the application of the

[BSER].” Id. § 7411(d), (a)(1).

6

The statute makes clear that States, in undertaking

that second step, enjoy discretion that exceeds EPA’s

discretion in setting the BSER: their standards need

not impose the specific BSER (e.g., a control technology) on sources, need only “reflect” (rather than

“achieve”) the emission performance of the BSER, and

may “take into consideration” “the remaining useful

life” of a given source and any “other factors” relevant

to setting the standard. Id. None of these things figure into EPA’s identification of the BSER; the discretion they confer is for the States alone. In addition,

separate and apart from the federal Clean Air Act,

States have the inherent police power and discretion

to adopt practically any measure that reduces emissions from sources within their borders, up to and including targeting facilities for closure. Cf. 42 U.S.C.

§ 7416 (savings clause). EPA, a creature of statute,

does not.

So how could it possibly matter to the question of

EPA authority in setting the BSER that “[n]othing in

Section [111(d)] bars States from including outsidethe-fenceline measures in their plans”? U.S.Br.28

(emphasis added). The Government, despite making

the supposed linkage between the two its lead statutory argument, gives no explanation. But it does

acknowledge elsewhere in its briefing (at 36–37, 45–

46) that the statute decouples EPA’s identification of

the BSER from State compliance measures. Whatever

power States have to compel reduced utilization of

their sources—whether standing alone or as part of a

trading program or “shifting” regime—is irrelevant to

7

the scope of EPA’s discretion in selecting the “best

system of emission reduction” for a category of

sources.

4. Against all this, Respondents point to the

Clean Air Mercury Rule, which they say established

the precedent of including reduced utilization

(through a trading program) as a component of the

BSER. U.S.Br.37–38; ConEd.Br.38–41; NGO.Br.16;

States.Br.27. That is a heavy burden to place on a single rule that never took force and was vacated before

any court could pass judgment on its substance. See

New Jersey v. EPA, 517 F.3d 574, 578 (D.C. Cir. 2008).

And the rule itself cannot bear that burden. Although

CAMR authorized States to employ trading as a compliance mechanism, 70 Fed. Reg. 28,606, 28,619 (May

18, 2005), its levels were based on EPA’s assessment

of control technologies, not reduced utilization, id. at

28,620. CAMR provides no precedent for the CPP or

Respondents’ interpretative position here.

B.

Whether and How To Restructure an

Entire Industrial Sector Is a

Paradigmatic Major Question

The upshot of Respondents’ interpretation of Section 111(d) is that EPA has the power to restructure

any emitting sector of the economy by using reduced

utilization to set emission limits that existing sources

cannot achieve in operation. Whether and how to

wield that awesome power is a major question by any

measure, as confirmed by EPA’s wielding it for the

stated purpose of transforming the electricity sector.

See Westmoreland.Br.13–14, 30–31. The Government

8

(at 47–48) contends otherwise, assuring the Court

that EPA will exercise this newfound power modestly

and responsibly. The Court should not be taken in.

With the President having declared a “Climate Crisis”

and ordered an “whole-of-government effort…to take

direct actions that will reduce greenhouse gas emissions,”2 it is no exaggeration to observe that “this wolf

comes as a wolf,” Morrison v. Olson, 487 U.S. 654, 699

(1988) (Scalia, J., dissenting).

1. Respondents identify no limitation on EPA’s

power to restructure entire industries through the

contrivance of reduced utilization and measures employing it like “shifting.” The Government (at 49)

averts to statutory factors that it says serve as “constraints” against “transformative” application of Section 111. See also ConEd.Br.48; NGO.Br.48;

States.Br.44, 48. But factors like the “adequately

demonstrated” requirement provide no constraint at

all when EPA settles on reduced utilization as a

BSER. EPA had no trouble concluding in the CPP

that “reduced generation” is an adequately demonstrated means of emission reduction, 80 Fed. Reg. at

64,780, and it is difficult to imagine that EPA could

reach the opposite conclusion as to any category of

sources—all of which can be turned off. No Respondent contends otherwise.

2 National Climate Task Force, President Biden’s Whole-of-Gov-

ernment Effort to Tackle the Climate Crisis, available at

https://www.whitehouse.gov/climate/ (last visited Feb. 15, 2022).

9

Yet, as discussed above, the other statutory factors

cited by Respondents like “cost” and “energy requirements,”

U.S.Br.49;

ConEd.Br.24;

NGO.Br.34;

States.Br.35–36, only figure in to whether a candidate

BSER is “adequately demonstrated,” 42 U.S.C.

§ 7411(a)(1); see also supra n.1 (discussing Essex

Chemical, 486 F.2d at 433). These factors have bite

when applied to traditional emission-reduction

measures, where exorbitant expense or energy losses

might render a candidate technology or work practice

inadequately demonstrated for a particular source

category. But they are toothless as to reduced utilization, imposing no constraint on EPA’s discretion to

ratchet down emission limits to any level that it

chooses.

That is, in fact, what EPA did in the CPP through

its application of reduced utilization. Section 111 contemplates that the agency will identify BSER candidates, identify the ones that are “adequately demonstrated” and result in the “best” performance, and

then issue a guideline based on the degree of emission

limitation they achieve. The CPP reversed that sequence: EPA chose the “magnitude” of emission reductions to target—right in line with the President’s

“climate pledge”—and then set the BSER to achieve

it through reduced utilization of disfavored sources.

See 80 Fed. Reg. at 64,727 (stating that, given “the

magnitude of the environmental problem and projections by climate scientists,” “the quantity of emissions

10

reductions resulting from the application of [traditional] measures is too small”); id. at 64,817–18 (assessing “replacement” of fossil-fuel-fired generation).

Respondents quibble over the CPP’s economic impacts, U.S.Br.47; ConEd.Br.26–27; NGO.Br.45–46,3

but none dispute that the CPP’s aim was to “transform[]” the electricity sector by forcing a “transition”

from existing sources to renewables, see Westmoreland.Br.13. The CPP provides the blueprint for

EPA to transform any carbon-emitting industry or

even transform the home by forcing a “shift” away

from common appliances like gas ranges and furnaces.4

2. This is precisely the kind of agency claim to “extravagant statutory power,” Util. Air Regul. Grp. v.

EPA, 573 U.S. 302, 324 (2014) (“UARG”), or “breathtaking…authority,” Ala. Ass’n of Realtors v. Dep’t of

Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021),

that implicates the major questions doctrine, 84 Fed.

Reg. at 32,530 (so reasoning in the ACE Rule). If there

3 And they assume, without basis, that EPA’s hanging the Sword

of Damocles over the fossil-fuel-fired generation fleet had nothing to do with the changes to the generation mix that ensued.

4 The Government denies (at 43)

that Section 111 authorizes

EPA to regulate emissions from homes, but it has done so for

decades. See 85 Fed. Reg. 18,448 (April 2, 2020) (updating Section 111 standards for “residential wood heaters,” a category

that includes wood-fired stoves, furnaces, and boilers used in

homes). The Government cites UARG on this point, but unlike

the major-source programs at issue there, 573 U.S. at 309, Section 111 has no minimum emissions threshold for regulated

sources, see 42 U.S.C. § 7411(a)(3).

11

is “little doubt” that a workplace vaccination-or-testing mandate or an eviction moratorium fits the bill,

NFIB v. OSHA, 142 S. Ct. 661, 665 (2022), then there

can be no doubt that a forced transformation of a central sector of the economy likewise asserts a “power[]

of vast economic and political significance.” Id. (quotation marks omitted).

The Government attempts to avoid that conclusion

by drawing the arbitrary distinction that setting the

BSER “involves no direct regulation of private conduct.” U.S.Br.46. No case suggests that the presence

(or absence) of “direct regulation” figures into the major questions inquiry, and the Government offers no

explanation why it would as a logical matter.

Additionally, as presented here, the argument is

pure misdirection: although sources are not necessarily required to implement the precise BSER identified by EPA, they are subject to performance standards that “reflect” the BSER’s emission performance.

42 U.S.C. § 7411(a)(1). And that’s how the CPP sought

to bring about the “replacement of higher emitting

generation with lower- or zero-emitting generation.”

80 Fed. Reg. at 64,728. Given that even brand-new

power plants could not achieve the CPP’s rates, reduced utilization and “shifting” provided the only

pathway to compliance for existing sources. See Westmoreland.Br.13; 80 Fed. Reg. at 64,753–54.5 An

5 Indeed, EPA’s “model” State plans and proposed federal imple-

mentation plan implemented shifting through marketable emission credits. 80 Fed. Reg. at 64,833; 80 Fed. Reg. 64,966 (Oct. 23,

2015).

12

agency’s assertion of vast transformational power is

not rendered insignificant just because the regulatory

process involves more than one step.

The Government’s other arguments actually confirm the vastness of EPA’s claim to power here. It attempts to downplay the significance of reduced-utilization measures on the basis that nothing “compel[s]

[EPA] to utilize such measures at all, let alone utilize

the most impactful versions of them,” U.S.Br.47 (emphasis in original), or to set emissions limits of heightened “stringency,” U.S.Br.46. But this only underscores that, if reduced utilization is in play, EPA gets

to decide for every sector whether to employ it and

how far down to drive emissions limits. That the

agency claims the discretion to transform entire industries—or leave them untouched—makes this asserted power “major.”

3. Any possible doubt is overcome by EPA’s

application of that power here to “intrude[] into an

area that is the particular domain of state law,” Ala.

Ass’n of Realtors, 141 S. Ct. at 2489: the regulation of

the mix of electricity sources necessary to ensure

public safety and welfare. See Westmoreland.Br.18–

19. Respondents wave away the point, arguing that

any emission-control measure may lead to some

amount of “generation-shifting.” ConEd.Br.37;

NGO.Br.45; States.Br.47. This, again, conflates the

incidental impacts of emissions regulation with direct

regulation of electricity production and output so as

to reconfigure the mix of generation sources. It would

be a stunning anomaly for the Clean Air Act to give

13

EPA the precise power over electricity generation that

Congress specifically denied to the federal electricitymarket regulator in favor of preserving exclusive

State authority. See, e.g., Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373, 348, 388 (2015); Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Comm’n,

461 U.S. 190, 205–06 (1983). Only “exceedingly clear

language” enacted by Congress could possibly support

that unlikely result. Ala. Ass’n of Realtors, 141 S. Ct.

at 2489 (quoting U.S. Forest Serv. v. Cowpasture

River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)).

C.

No Respondent Identifies Clear

Congressional Authorization for EPA

To Restructure Industries

EPA was correct to conclude in the ACE Rule that

Section 111(d) does not confer this awesome industryrestructuring power on EPA. 84 Fed. Reg. at 32,529.

Nothing in that ancillary, all-but-forgotten provision

“plainly authorizes,” NFIB, 142 S. Ct. at 665, EPA to

force the reduced utilization of disfavored facilities or

appoints EPA czar over the Nation’s electric system.

These things are “simply not part of what the agency

was built for.” Id. (quotation marks omitted). As with

OSHA’s imposition of a vaccine mandate, EPA’s attempt in the CPP to reconfigure the electricity sector

“is strikingly unlike” the emissions regulations that

the agency has traditionally imposed and “falls outside of [its] sphere of expertise.” Id. Respondents identify no “clear congressional authorization,” id., for

EPA to exert this vast power.

14

1. To its credit, the Government does not attempt

to argue that Section 111 unambiguously empowers

EPA to restructure industries by setting unachievable-in-operation emission guidelines based on turning

off sources. Instead, it argues at length that the statute “does not unambiguously preclude” such

measures. U.S.Br.21; see also ConEd.Br.27. This essentially concedes the absence of the “clear congressional authorization” required for EPA to lay claim to

a major power. NFIB, 142 S. Ct. at 665; see also U.S.

Telecom Ass’n v. FCC, 855 F.3d 381, 425 (D.C. Cir.

2017) (Kavanaugh, J., dissenting) (ambiguity “is the

end of the game” for an agency claiming a major

power).

The Government’s apparent belief that a finding of

statutory ambiguity is sufficient grounds to reject the

ACE Rule misapprehends that rule’s reasoning. In

addition to parsing the statutory language, the ACE

Rule also concluded that “basing BSER on generation

shifting is precluded by the statute” under “the major

question doctrine.” 84 Fed. Reg. at 32,529. That conclusion was correct, it fully justified repeal of the CPP,

and it therefore provides a sound basis to reverse the

contrary decision below.

2. NGO Respondents contend (at 39) that the requisite “clear congressional authorization” is to be

found in the statute’s delegation to EPA to identify

the “best system of emission reduction.” But that provision says nothing about EPA’s authority to reorder

entire sectors of the economy by setting emission lim-

15

its based on turning off sources. As Westmoreland observed in its opening brief (at 37–38), it’s not as if Congress was unaware that turning off emitting facilities

would reduce their emissions. But there is no hint in

the statutory language that Congress intended to empower EPA to control industrial production across the

economy. And no Respondent claims that its text unambiguously confers that power.

3. Several Respondents, albeit not the Government, contend that American Electric Power Co. v.

Connecticut, 564 U.S. 410 (2011) (“AEP”), recognized

Section 111 to authorize measures like the CPP.

NGO.Br.43; States.Br.39. Their reliance on a court

decision only underscores the absence of clear authorization in the statute itself. And any reliance on AEP

is misplaced. AEP recognized that Section 111 authorizes regulation of power plants’ carbon emissions, 564

U.S. at 424, but it did not suggest that EPA has carte

blanche to set the terms of such regulation. Indeed,

AEP says nothing about the substance of Section

111(d) emissions guidelines, only that EPA generally

must issue them after promulgating new-source

standards. Id. That is what EPA did in the ACE Rule,

and that rule’s emissions guidelines, being premised

on traditional emission-reduction measures, do not

implicate the question of EPA’s authority to restructure sectors of the economy.

4. Finally, the Government professes to find support for its interpretative position in a surprising

place: the Clean Air Act’s Acid Rain Program.

U.S.Br.49; see also States.Br.26–27. That program’s

16

“trading system,” it argues, provides “historical precedent” for the CPP’s generation-shifting approach.

But that gets it backwards. The Acid Rain Program is

precedent for Congress legislating expressly when it

comes to emission-trading, not for EPA’s claim here

that it has the power to fashion trading programs out

of statutory interstices. Congress not only prescribed

that program’s cap-and-trade approach, but it also

dictated the initial allocation of emission allowances

and other key terms. See Westmoreland.Br.39. That

demonstrates the great political significance of

measures that regulate industrial production and

their impact on specific facilities in specific States and

congressional districts. The Acid Rain Program shows

that, when Congress intends to authorize the use of

trading-type approaches, with all the sensitive economic and political choices they entail, it speaks with

the “requisite clarity to place [its] intent beyond dispute.” Cowpasture, 140 S. Ct. at 1849. The claim that

a similar but far greater authority—one not limited to

specified pollutants or subject to congressional allocation of emission allowances—can be read into Section

111 is “especially questionable,” id. at 1850, to say the

least.

II. Respondents’ Interpretation of Section 111

Brooks No Intelligible Principle Cabining

EPA Discretion

If Section 111 authorizes EPA to base emission limits on turning off sources, then the agency has the

power and discretion to set limits at any level and re-

17

structure or condemn any emitting sector of the economy at will. That result is the consequence of a statutory design that assumes limits will be based on traditional emission-reduction measures like control

technologies and work practices and constrains EPA’s

discretion only with respect to such measures. As

shown in Westmoreland’s opening brief (at 42–43)

and above (supra § I.A.1), every single one of the statutory criteria that would ordinarily circumscribe

EPA’s discretion—that systems be “adequately

demonstrated,” standards “achievable,” and the

agency consider “cost,” “energy requirements,” and

“nonair health and environmental impact”—drops out

of the analysis when EPA goes with reduced utilization. All that’s left is for EPA to decide how much reduced utilization of a given source category it thinks

“best.” No Respondent explains how providing EPA

with the power and discretion to set limits at any level

and restructure or condemn any emitting sector of the

economy at will based on what it believes “best”

“lay[s] down…an intelligible principle” to which EPA

must “conform” its actions. J.W. Hampton, Jr., & Co.

v. United States, 276 U.S. 394, 409 (1928). It does not.

Rather than meet this point head-on, Respondents

gesture to the statutory factors (like “cost” and “energy requirements”) that have no bearing when EPA

decides to go with reduced utilization because they

pertain only to whether a system or emission reduction is “adequately demonstrated,” see Essex Chemical, 486 F.2d at 433, which reduced utilization always

is.

EPA.Br.50;

ConEd.Br.48–49;

NGO.Br.48;

18

States.Br.48. Westmoreland described in its opening

brief (at 42–43) how that result is compelled by the

language and structure of Section 111’s “standard of

performance” definition. Respondents attempt no argument to the contrary. Their inability to show how

these factors have any bite confirms that they do not.

Respondents also attempt to draw a parallel with

the Clean Air Act provision upheld against a nondelegation challenge in Whitman v. American Trucking

Associations, 531 U.S. 457 (2001). U.S.Br.50;

NGO.Br.47–48; States.Br.48. But the contrast is overwhelming. That provision required EPA to set ambient air quality standards that, “allowing an adequate

margin of safety, are requisite to protect the public

health.” Id. at 472 (quoting 42 U.S.C. § 7409(b)(1)).

Through that language, the statute provided the “intelligible principle” that the agency set standards at

“the level that is ‘requisite’—that is, not lower or

higher than is necessary—to protect the public health

with an adequate margin of safety.” Id. at 475–46.

By contrast, Section 111 provides no standard to

guide agency discretion when reduced utilization is in

the mix. EPA may adopt any level of reduced utilization that it thinks “best,” 42 U.S.C. § 7411(a)(1), and

thereby set emission guidelines at any level. Directing

EPA to choose the level that is “best” is a Rorschach

test for EPA officials, not an intelligible principle. It

comes nowhere close to satisfying Congress’s obligation to “provide substantial guidance on setting air

standards that affect the entire national economy.”

Whitman, 531 U.S. at 475.

19

By applying the major questions doctrine to rule out

reduced utilization and shifting as Section 111 “systems of emission reduction,” 84 Fed. Reg. at 32,529,

the ACE Rule properly avoided what would otherwise

be an unconstitutional delegation of legislative power.

The Court should so the same. See Indus. Union Dep’t,

AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 646 (1980)

(plurality opinion) (“A construction of the statute that

avoids this kind of open-ended grant should certainly

be favored.”); Gundy v. United States, 139 S. Ct. 2116,

2142 (2019) (Gorsuch, J., dissenting).

III. Respondents’ Various Justiciability

Arguments Are Meritless

Respondents repeat the same standing and mootness arguments that the Court found uncompelling at

the petition stage. Nothing has changed since then.

Petitioners’ injury remains obvious, ongoing, and redressable. The CPP imposed sovereign and economic

injuries on Petitioners, the ACE Rule relieved those

injuries by rescinding the CPP, and the decision below

vacated that relief. Neither the court of appeals’ stay

order nor the Government’s hand-waving about what

EPA might do in the future deprives the Court of jurisdiction or weighs against its finally answering the

vital question of EPA’s authority presented here. To

the contrary, EPA’s rulemaking designs confirm the

necessity of bringing this “multiyear voyage of discovery,” UARG, 573 U.S. at 328, to an end now.

A. Petitioners possess the “direct stake in the outcome” requisite for standing to appeal. Diamond v.

Charles, 476 U.S. 54, 62 (1986) (quotation marks

20

omitted). Westmoreland owns and operates a captive

mine serving Montana’s Colstrip power plant, Decl. of

Jeremy Cottrell ¶ 5, Am. Lung Assoc. v. EPA, (No. 191140) (D.C. Cir. Aug. 13, 2020), which does not satisfy

the “Emission Performance Rates” set by the CPP,

compare 80 Fed. Reg. at 64,962 (setting rate at 1,534

pounds of CO2 per megawatt-hour) with EPA, Emissions & Generation Resource Integrated Database

(reporting Colstrip’s emission rate as 2971.95

lb/MWh).6 By default, the CPP required Colstrip to

achieve the specified rate, 80 Fed. Reg. at 64,962

(promulgating 40 C.F.R. § 60.6855(a)),7 disadvantaging Colstrip’s and Westmoreland’s business, see Cottrell Decl. ¶ 5. The ACE Rule relieved that injury

through its repeal of the CPP, until the court below

vacated it. Westmoreland has a personal stake in obtaining review of that judgment.

The State Petitioners’ stake is also plain. None of

their existing plants satisfy the CPP’s source-specific

rates. Compare 80 Fed. Reg. at 64,812, Table 11, with

EPA, Clean Air Markets, Facility Level Comparisons,

“Coal-fired Characteristics and Controls: 2020” (Feb.

3, 2021).8 The CPP directs States either to impose

Available at https://www.epa.gov/egrid (last visited Feb. 15,

2022).

6

7 See also id. at 64,944 (promulgating 40 C.F.R. § 60.5740(a)(3),

which imposes the same requirement as a “backstop” when

States depart from the default rates).

Available at https://www.epa.gov/airmarkets/facility-levelcomparisons (last visited Feb. 15, 2022)

8

21

those emission limits on sources directly or to establish State-wide programs subject to the CPP’s Statebased targets. See 80 Fed. Reg. at 64,942 (promulgating 40 C.F.R. § 60.5710). That requirement applies to

all States with fossil-fuel-fired plants irrespective of

current emissions, id., contradicting the NGO Respondents’ claim (at 28) that the CPP is somehow

“non-binding” on States. Also mistaken is their claim

(at 28) that the CPP’s emission-reduction goals have

been satisfied, leaving nothing to enforce. Petitioners

Indiana, Missouri, Ohio, and North Dakota all must

achieve emissions reductions to meet the CPP’s Statewide targets. Compare 80 Fed. Reg. 65,824 (Table 12)

with U.S. Energy Info. Admin., State Electricity Profiles (Nov. 4, 2021).9 As the States are the “object of

the action…at issue,” there is “little question that [it]

caused [them] injury.” Lujan v. Defs. of Wildlife, 504

U.S. 555, 561–62 (1992). They are equally injured by

the judgment below vacating the repeal of the CPP.

B. Respondents present no authority or even logical basis to conclude that a stay of judgment somehow

changes the standing calculus. A stay does nothing

more than “suspend[] judicial alteration of the status

quo.” City of Chicago v. Fulton, 141 S. Ct. 585, 590

(2021) (quotation marks omitted). And that is, by the

9 Available at https://www.eia.gov/electricity/state/ (last visited

Feb. 16, 2022). Specifically, Indiana: 1,242 goal, 1,584 current

emissions; Missouri: 1,272 goal, 1,641 current emissions; Ohio:

1,190 goal, 1,222 current emissions; North Dakota: 1,305 goal,

1,430 current emissions. All measurements are weighted-average pounds of CO2 per megawatt hour, all goals are 2030 goals.

22

Government’s own telling, what it sought and obtained here: a “stay of the mandate with respect to the

vacatur of the CPP Repeal Rule.” U.S.Br.16 (quotation marks omitted). The stay order did not alter or in

any way displace the judgment, and it therefore had

no impact on standing to appeal. After all, Petitioners

might well have sought a stay themselves if the

agency hadn’t, and no one could seriously argue that

would relieve their injury from the judgment to the

extent that there’s nothing to appeal.

C. Respondents’ claim of mootness fails for the

same reasons, and then some. That claim does not

turn on any action taken by EPA, as the agency has

yet to publish a proposal for altering the status quo at

the time of the judgment below, let alone a final rule

doing so with legal force. Instead, Respondents’ mootness argument relies on speculation that EPA will do

something other than revise the out-of-date deadlines

and targets that the Government cited as the basis for

stay below. U.S.Br.10. But the Government makes no

attempt to carry its “formidable burden of showing

that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected” to continue

or recur. Friends of the Earth v. Laidlaw Envt’l Servs.,

Inc., 528 U.S. 167, 190 (2000). The prospect that EPA

may update the CPP’s parameters does not moot this

case, and the Government does not even suggest that

EPA’s contemplated updates will relieve (rather than

aggravate) Petitioners’ injuries. An agency cannot escape judicial review of its existing actions simply by

asserting that it might change course in the future.

23

CONCLUSION

The Court should reverse.

Respectfully Submitted,

MARTIN T. BOOHER

JOSHUA T. WILSON

BAKER & HOSTETLER LLP

2000 Key Tower

127 Public Square

Cleveland, Ohio 44114

(216) 621-0200

MARK W. DELAQUIL

ANDREW M. GROSSMAN

Counsel of Record

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., NW

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

Counsel for Petitioner

FEBRUARY 17, 2022