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

No. 20-1530

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.,

Respondents.

——————

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS*

Special Counsel

THOMAS T. LAMPMAN

CALEB A. SECKMAN

Assistant Solicitors

General

Counsel for Petitioner State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Page

Introduction .......................................................................... 1

Argument .............................................................................. 2

I.

Section 111 Does Not Clearly Empower

EPA To Reorganize American Industry .................... 2

II. EPA’s New Powers Offend Federalism ..................... 8

III. Section 111 Requires Source-Specific

Regulation ...................................................................... 9

IV. This Case Is Not Moot—And Petitioners

Have Standing ............................................................. 18

Conclusion ........................................................................... 23

II

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Slater,

528 U.S. 216 (2000) ....................................................... 19

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ......................................................... 7

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ......................................................... 20

Babbitt v. UFW Nat’l Union,

442 U.S. 289 (1979) ....................................................... 21

BCCA Appeal Grp. v. EPA,

355 F.3d 817 (5th Cir. 2003) ......................................... 10

Champion Int’l Corp. v. EPA,

850 F.2d 182 (4th Cir. 1988) ......................................... 22

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) ....................................................... 21

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008) ....................................................... 19

Del. Dep’t of Nat. Res. & Env’t Control v.

EPA,

785 F.3d 1 (D.C. Cir. 2015) ............................................ 5

Diamond v. Charles,

476 U.S. 54 (1986) ......................................................... 20

III

TABLE OF AUTHORITIES

(continued)

Page(s)

Dirks v. SEC,

463 U.S. 646 (1983) ....................................................... 11

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) ..................................................... 3, 4

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000) ................................................. 18, 19

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ......................................................... 18

Gonzales v. Oregon,

546 U.S. 243 (2006) ..................................................... 6, 7

Gregory v. Ashcroft,

501 U.S. 452 (1991) ......................................................... 8

Grupo Dataflux v. Atlas Glob. Grp., L.P.,

541 U.S. 567 (2004) .................................................. 20-21

Hollingsworth v. Perry,

570 U.S. 693 (2013) ....................................................... 20

Holloway v. United States,

526 U.S. 1 (1999) ........................................................... 11

Indus. Union Dept., AFLCIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ......................................................... 2

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Intel Corp. Inv. Pol’y Comm. v. Sulyma,

140 S. Ct. 768 (2020) ..................................................... 16

Karcher v. May,

484 U.S. 72 (1987) ......................................................... 18

Kokoszka v. Belford,

417 U.S. 642 (1974) ....................................................... 11

Leedom v. Kyne,

358 U.S. 184 (1958) .................................................. 21-22

Lujan v. Def. of Wildlife,

504 U.S. 555 (1992) ................................................. 19, 20

Mass. Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985) ....................................................... 10

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................... 7, 22

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ....................................................... 15

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ..................................................... 19

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) ................................................... 1, 2

New Process Steel, L.P. v. NLRB,

560 U.S. 674 (2010) ....................................................... 10

V

TABLE OF AUTHORITIES

(continued)

Page(s)

NLRB v. Ins. Agents’ Int’l Union,

AFL-CIO,

361 U.S. 477 (1960) ....................................................... 10

Port of Bos. Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic,

400 U.S. 62 (1970) ......................................................... 21

Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375 (D.C. Cir. 1973) ................................. 16-17

Pub. Citizen v. U.S. Dep’t of Justice,

491 U.S. 440 (1989) ....................................................... 12

Rimini St., Inc. v. Oracle USA, Inc.,

139 S. Ct. 873 (2019) ..................................................... 12

Rodriguez v. United States,

480 U.S. 522 (1987) ....................................................... 16

Sackett v. EPA,

566 U.S. 120 (2012) ....................................................... 21

Small v. United States,

544 U.S. 385 (2005) ....................................................... 11

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ....................................................... 22

Territory of Guam v. United States,

141 S. Ct. 1608 (2021) ................................................... 10

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) ..................................................... 8

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ......................................................... 18

United States v. Sisson,

399 U.S. 267 (1970) ....................................................... 16

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ......................................................... 3

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ............................................... 19, 22

Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) ....................................................... 20

West Virginia v. EPA,

362 F.3d 861 (D.C. Cir. 2004) ...................................... 20

Statutes

42 U.S.C. § 7401 .................................................................. 12

42 U.S.C. § 7410 .................................................................. 15

42 U.S.C. § 7411 ............................................................ 12, 14

Clean Air Act Amendments of 1990, Pub.

L. No 101-549 § 101(b), 104 Stat. 2404 ....................... 15

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Regulations

86 Fed. Reg. 63,110 (Nov. 15, 2021) .................................. 11

Other Authorities

EPA, FISCAL YEAR 2016: JUSTIFICATION

OF APPROPRIATION ESTIMATES FOR

THE COMMITTEE ON APPROPRIATIONS

(2015) ................................................................................ 5

Net Generation by State by Type of

Producer by Energy Source and U.S.

Electric Power Industry Estimated

Emissions by State, U.S. ENERGY

INFO. ADMIN. (Sept. 15, 2021) ....................................... 6

STAFF OF S. COMM. ON PUB. WORKS, 93D

CONG., A LEGISLATIVE HISTORY OF THE

CLEAN AIR ACT AMENDMENTS OF 1970

VOL. I (Comm. Print 1974) ........................................... 15

STAFF OF S. COMM. ON PUB. WORKS, 93D

CONG., A LEGISLATIVE HISTORY OF THE

CLEAN AIR ACT AMENDMENTS OF 1970

VOL. II (Comm. Print 1974) ......................................... 15

INTRODUCTION

The decision below gives EPA unprecedented power to

control how the country generates electricity, to

subjugate States to the agency’s vision, and to force

parties to shutter plants or subsidize competitors to make

it real. Rather than defend these outcomes, Respondents

largely deny them. They greet the major-questions and

federalism canons with a shrug, never identifying the

“clear statement” from Congress they require. Instead,

they insist the doctrines have no place here at all.

But both canons were tailor-made for circumstances

like these. The D.C. Circuit matched thin statutory text

with a momentous purpose to fashion broad new agency

powers. Without a clear statement, that will not do.

Respondents further retreat to counterarguments old

and new. They insist that as long as EPA continues to take

a will-they-or-won’t-they approach to expansive powerplant regulation, and as long as the D.C. Circuit holds back

part of its mandate, then Petitioners are out of luck for

lack of standing. That argument disregards the States’

interests and the harms from the decision below.

Respondents also spin purported ambiguity into sweeping

grants of agency authority. But that result requires

reading pieces of Section 111 in isolation, placing the

CAA’s purposes ahead of its text, and drawing false

conclusions from comparisons to other statutory

provisions.

Our system of government gives the “responsibility” to

weigh tough tradeoffs to “those chosen by the people

through democratic processes.” Nat’l Fed’n of Indep.

Bus. v. OSHA, 142 S. Ct. 661, 666 (2022) (per curiam).

Congress has not given EPA the power to make those calls

on its own. The Court should reverse.

2

ARGUMENT

I.

Section 111 Does Not Clearly Empower EPA To

Reorganize American Industry.

The majority below read Section 111 to set practically

“no limits on the types of measures” EPA should consider

when imposing industry-shaping rules. JA.108; see also

JA.106-10, 115, 118. It did so even without a “serious and

sustained argument that [Section] 111 includes a clear

statement unambiguously authorizing” this power.

JA.224. The lower court’s enablement thus constitutes an

extraordinary delegation of “power over American

industry” without “a clear [textual] mandate.” Indus.

Union Dept., AFLCIO v. Am. Petroleum Inst., 448 U.S.

607, 645-46 (1980) (plurality op.).

Though Respondents urge the Court not to limit the

agency’s reach unless the statute clearly forbids it, e.g.,

U.S.Br.30, this type of power grab is unsupportable unless

Congress clearly allows it. In fact, the Court recently

reminded agencies how delegations like this should work,

“rightly appl[ying] the major questions doctrine” to stay

an agency-imposed vaccine-or-test mandate for millions of

Americans. NFIB, 142 S. Ct. at 668 (Gorsuch, J.,

concurring). Like EPA’s newfound power, that mandate

was “a significant encroachment into the lives … of a vast

number of” regulated people, reflecting power of “vast

economic and political significance” that Congress had not

clearly authorized. Id. at 665 (per curiam).

No wonder, then, that most Respondents bury mention

of “major questions” at the back of their briefs. See

U.S.Br.44-50; NGO.Br.42-49; NY.Br.38-47. And once they

get there, they cannot answer how the power the D.C.

Circuit unleashed is anything but “major.”

See

Westmoreland.Reply.2-16.

3

A. Legally, the nature of the power at stake is the core

of a major question. Respondents muddy the waters

through contradictory arguments about supposed costs

and effects. Sometimes they say that any legal challenge

must wait until EPA finishes its latest round of

rulemaking. U.S.Br.45-48; NY.Br.42-43; PowerCo.Br.2123. Other times they point to the CPP and after-the-fact

assessments to say the regulatory consequences would

not be so great. U.S.Br.47; PowerCo.Br.26-27. Still other

times they say that even a restrained reading of Section

111 would not prevent EPA from issuing rules with

substantial effects. U.S.Br.47.

No matter how they frame it, Respondents err in

elevating effects above all else. None of the Court’s majorquestions cases do that. Take FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000). Federal

Respondents say the Court was concerned that the

“logical implication” of the FDA’s new statutory

interpretation would require it to ban tobacco. U.S.Br.47.

But the Court identified a major question there because of

the “breadth of authority” the agency claimed over a

“significant portion of the American economy.” Brown &

Williamson, 529 U.S. at 159-60. It then confirmed its

assessment based on the “unique political history”

surrounding tobacco—another non-effects-focused factor.

Id. Likewise, the Court’s concern in UARG was the

“enormous and transformative expansion in EPA’s

regulatory authority,” not just the specific number of

permits that would flow from it. Util. Air Regul. Grp. v.

EPA, 573 U.S. 302, 324 (2014).

Effects do matter—big consequences often follow big

strokes of agency power—but they are not dispositive in

the way Respondents would have it. The major-questions

doctrine respects Congress’s choice to keep significant

4

policy questions for itself. It does not demand that

agencies seek a second congressional stamp of approval

after passing a certain monetary or other tangible

threshold.

This understanding also explains why it is not too early

to examine EPA’s new Section 111 powers through the

major-questions lens. E.g., NY.Br.42. No authority

requires parties to wait and see what havoc the D.C.

Circuit’s statutory construction will wreak.

Even

Respondents’ own logic is against them. The Court’s

(limited) discussion in Brown & Williamson of a potential

tobacco ban shows that the Court focused on more than

the immediate, near-term effects of the specific rule

before it. The Court also cared about how much further

the agency could go next. Brown & Williamson, 529 U.S.

at 137.

Waiting for another rule would change the doctrine,

which asks when agencies may take on major questions.

Respondents seem focused on major answers. Nothing

justifies that shift here, particularly as the D.C. Circuit’s

decision crystallizes the questions at stake: EPA now has

“no limits” other than its own creativity and the need to

take account of a few factors when it decides which

regulatory measures to deploy. And truth is, much of this

argument is a warmed-over version of Respondents’

justiciability arguments. The Court rejected them at the

certiorari stage, they fail when repackaged as standing,

and they crumble in this guise, too.

B. Respondents are also wrong factually: This case

involves real power.

First, Respondents improperly downplay EPA’s new

task as “interstitial” “fact-finding.” U.S.Br.45; see also

NY.Br.39-41. That gloss obscures the nature and effects

5

of the power EPA now commands. How to structure new

“market-based” systems. How to deploy certain existing

sources and squeeze out other disfavored ones. When,

how much, and where to spur generation shifting and new

capital investments to support it. The list goes on—each

decision loaded with serious and substantial policy

judgments, not run-of-the-mill agency fact-finding.

These powers do not implicate EPA’s expertise,

either—a key sign of a major question. See WV.Br.27.

“[G]rid reliability” is beyond the CAA’s scope and “not the

province of EPA.” Del. Dep’t of Nat. Res. & Env’t Control

v. EPA, 785 F.3d 1, 18 (D.C. Cir. 2015). EPA itself said as

much. Seven years ago it told Congress that the CPP

required it to “tap into technical and policy expertise not

traditionally needed in EPA regulatory development,”

including in areas like “electricity transmission,

distribution, and storage.” EPA, FISCAL YEAR 2016:

JUSTIFICATION OF APPROPRIATION ESTIMATES FOR THE

COMMITTEE

ON

APPROPRIATIONS

213

(2015),

https://perma.cc/V5DM-VYZK. Its “traditional[]” focus,

by contrast, is on “emitting sources and ‘end of pipe’

controls” only. Id.

Second, it is EPA—not the States—exercising this

power. Respondents claim that EPA does not directly

regulate because the real work happens during state-level

standard-setting. See, e.g., U.S.Br.44-46. They overlook

how much rope the lower court’s interpretation gives EPA

to tie the States’ hands. In the CPP, for example, EPA did

not offer States a true menu of compliance options; it set

an aggressive target that States could reach only by

implementing EPA’s preferred ends. See, e.g., WV.Br.41.

EPA cannot disclaim responsibility for major rules by

alluding to measures that might theoretically get a State

to the agency’s target but in reality do not exist.

6

Third, the remaining indicia of a major question are

here as well. Novelty, notoriety, and number of new

regulated parties, for sure. As for costs, Respondents

soft-pedal the dollars-and-cents effects of EPA’s new

authority. Yes, the private market might have adjusted to

regulatory change before it arrived, but a preemptive shift

does not mean those costs were never felt. Many of the

States where the CPP’s forced transformations would be

most disruptive have also not yet realized them. Compare

JA.1027-29 (States’ emission targets under the CPP), with

Net Generation by State by Type of Producer by Energy

Source and U.S. Electric Power Industry Estimated

Emissions by State, U.S. ENERGY INFO. ADMIN. (Sept. 15,

2021), https://www.eia.gov/electricity/data/state/ (showing

that 20 States are not yet meeting final targets). And

nothing in Respondents’ statutory approach would stop

EPA from going further still. Respondents maintain

these costs are not unique to outside-the-fenceline

measures, U.S.Br.46, but they never explain why.

Common sense teaches that wholesale reordering of the

electricity market is about as expensive a task as one could

imagine in this field. All told, the power EPA claims is

“major.”

C. Respondents pick out nothing in Section 111

clearly authorizing this type of agency power. They make

a half-hearted run at finding a clear statement in Section

111(a)(1), which tasks EPA with identifying the best

system of emission reduction. See, e.g., NY.Br.39. This

reference is too weak to carry the weight Respondents

need. Compare the provisions the Court considered in

Gonzales v. Oregon, 546 U.S. 243, 259 (2006). Even though

the statute there empowered the Attorney General to

regulate areas pertaining to the “registration and control”

of drugs, the Attorney General overstepped when he

issued regulations prohibiting doctors from prescribing

7

drugs for physician-assisted suicide. Id. at 259-68. In

much the same way, Section 111(a)(1) assigns EPA a role

in regulating emission-reduction measures, but EPA goes

too far in wresting control of the field through any

conceivable “system.”

Respondents next look for a clear statement in one of

this Court’s decisions. See, e.g., NGO.Br.43; NY.Br.38-39.

But American Electric Power Co. v. Connecticut, 564 U.S.

410 (2011), does not sweepingly endorse agency power.

Though AEP reiterates that EPA has responsibility for

regulating carbon-dioxide emissions, it does not hold that

this assignment is limitless. Pressed to pinpoint the

statute’s clarity about “how” EPA may regulate,

Respondents fall back on “EPA’s determination of the

best system of emission reduction.” NY.Br.41. But that

response does not answer whether the language clearly

permits industry-wide “systems” no matter how farreaching the consequences. Indeed, “whether and how”

cannot stretch so far: AEP also disclaimed the notion that

Congress granted EPA a “roving license” to regulate

carbon-dioxide emissions. 564 U.S. at 426-27. As one of

Respondents’ amici recognizes, “[a] reasoned application

of the major questions doctrine … would allow the Court

to constrain” EPA from exercising broad powers—even

given AEP.1 EEI.Br.33. When EPA regulates in this

space, it must respect the boundaries Congress set.

Finally, while EPA must “take into account”

three factors when determining the best system of

emission reduction, they offer neither a clear statement

The same amicus worries this case might topple AEP and

Massachusetts v. EPA, 549 U.S. 497 (2007). But the question

presented asks how Congress directed EPA to regulate greenhousegas emissions under Section 111. Whether it can at all is a different

issue.

1

8

nor a cure for its lack. Respondents’ argument, e.g.,

U.S.Br.49, confuses the standards governing an agency’s

exercise of delegated power with the authorization

required to delegate power over a major question in the

first place. To say EPA must consider certain factors

when crafting a rule does not resolve whether that

rule may regulate entire industries or energy grids.

And beyond that, those standards cannot salvage a toobroadly construed Section 111 from non-delegation

concerns. WV.Br.44-49. Respondents think the factors

will “guard against the possibility of emission guidelines

that have transformational consequences.” U.S.Br.49.

But considering the factors proved no barrier to even the

CPP’s “transformation[s],” this assurance is thin.

II.

EPA’s New Powers Offend Federalism.

The federalism clear-statement canon is an

independent reason for the Court to reverse—and

Respondents all but ignore it. Just as separation of

powers on the federal level “prevent[s] the accumulation

of excessive power in any one branch, a healthy balance of

power between the States and the Federal Government

will reduce the risk of tyranny and abuse.” Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991). Respondents do not

challenge the States’ traditional control over electricity

management. And they never identify “exceedingly clear

language” from Congress directing EPA to take it over.

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S.

Ct. 1837, 1849-50 (2020). Yet they would hand control over

to the EPA anyway. See WV.Br.26-31.

The federalism canon is more than a footnote, a coda,

or an afterthought. See NGO.Br.45 n.16; U.S.Br.51;

NY.Br.45-46. No one defends the lower court’s attempts

to push the doctrine aside. WV.Br.28-31. And Petitioners

9

already rebutted the idea that the majority’s

interpretation allows actions that merely “influence areas

of state control.” NGO.Br.45 n.16 (cleaned up). EPA can

now force changes at the core of the States’ energymanagement power, not its edge. WV.Br.29-31. For their

part, Federal Respondents seem to agree that some

federal emission limits can be stringent enough to compel

States to restructure their power sectors, but argue this

reality does not support a “categorical rule.” U.S.Br.51.

The federalism canon says otherwise. Section 111 cannot

permit that intrusion because Congress did not make

clear its intent to go so far.

And though Respondents insist their view gives States

choices when fashioning standards of performance, that

argument is wrong, infra Part III.D., and misses the

point. Offering a few more options for States to achieve

EPA’s vision for power-grid management does not cure

the invasion of state powers. The federalism clearstatement canon assumes that Congress would speak

directly before EPA could impose its vision in the first

place.

III.

Section

111

Regulation.

Requires

Source-Specific

EPA read Section 111 properly in 2019: The agency

may consider only source-specific measures when

determining a “best system of emission reduction.” See

WV.Br.31-44. Today Federal Respondents get it halfright, reasoning that Section 111(a)(1) “does not

encompass the power to institute any industry-wide

system.” U.S.Br.36. But neither does it let EPA force the

same result indirectly by dragooning States into

implementing rules premised on system-wide change.

10

Section 111’s text, structure, and context confirm that this

backdoor approach cannot be right.

A. Respondents try to narrow the Court’s focus by decoupling Section 111(a)(1) (where “best system of

emission reduction” is found within the definition of

“standard of performance”) from Section 111(d) (where

States develop plans flowing from that “system”). See,

e.g., U.S.Br.33-34; NGO.Br.39. They forget, though, that

close textual readings keep “interlocking language and

structure” at the fore. Territory of Guam v. United

States, 141 S. Ct. 1608, 1613 (2021). The Court thus reads

the provisions of an “interlocking, interrelated, and

interdependent … scheme” together. Mass. Mut. Life

Ins. Co. v. Russell, 473 U.S. 134, 146 (1985). Likewise, an

agency errs when it isolates one statutory piece “as if it

were an independent provision of law” instead of “part of

a reticulated legislative scheme with interlacing

purposes.” NLRB v. Ins. Agents’ Int’l Union, AFL-CIO,

361 U.S. 477, 510 (1960).

So Respondents are wrong to divorce Section 111(a)(1)

from (d), as the CAA is just such a comprehensive,

interrelated scheme. E.g., BCCA Appeal Grp. v. EPA, 355

F.3d 817, 821-22 (5th Cir. 2003). Respondents further

overlook that definitional provisions in particular must

make sense in the statute’s operative provisions.

WV.Br.32-33. They are not freestanding elements—all of

a “statute’s various pieces” must “hang together.” New

Process Steel, L.P. v. NLRB, 560 U.S. 674, 681 (2010).

In forcing Sections 111(a)(1) and (d) apart,

Respondents also overemphasize the regulatory players’

separate roles, downplaying how much EPA’s actions

drive the States’. EPA knows better: A few months ago it

called its Section 111(a)(1) emission limitations “model

rules” that would apply to “the vast majority of designated

11

facilities.” 86 Fed. Reg. 63,110, 63,249-51 (Nov. 15, 2021).

If EPA plans to use “best system of emission reduction”

to dictate rules for most sources regulated under Section

111(d), then the Court should consider what that section

says. An untethered construction of Section 111(a)(1), by

contrast, lets EPA set demands the States might be

unable to meet without losing their Section 111(d)

discretion.

B. Respondents are also incorrect that “system” can

mean almost anything and “appl[y]” to nearly everything.

See, e.g., NY.Br.21.

Everyone agrees that statutory construction “begins

with the text.” U.S.Br.33. But this means looking at all

the text and making sense of its context, too. Courts

consider more than just the “bare meaning” of a word,

Holloway v. United States, 526 U.S. 1, 6 (1999) (cleaned

up), and do not “look merely to a particular clause in which

general words may be used,” Kokoszka v. Belford, 417

U.S. 642, 650 (1974).

When it comes to a best “system,” Respondents insist

that all measures “directed toward [a] shared objective”

count. NY.Br.21. That understanding “ha[s] no limiting

principle.” Dirks v. SEC, 463 U.S. 646, 664 (1983). It also

produces nonsense. Rockets and skateboards could then

comprise a system, as both are “directed toward” the

“shared objective” of moving people from one place to

another. Respondents brush off “far-fetched suggestions”

because they have faith in EPA’s restraint and duty to

apply other statutory factors, yet point to nothing about

“system” itself that gives the term limits. PowerCo.Br.29.

Better, then, to construe “system” from its context. See,

e.g., Small v. United States, 544 U.S. 385, 388 (2005)

(looking beyond the “broad interpretation” of the word

“any”). The Court should read it against the Act as a

12

whole, which advances “air pollution control at its source.”

42 U.S.C. § 7401(a)(3) (emphasis added).

Even the statutory history Respondents favor

confirms “system’s” narrower scope. Congress last

amended Section 111 and tweaked its discussion of “best

system of emission reduction” in 1990. At the same time,

it added three provisions directing or allowing outsidethe-fenceline emission-control measures: the Acid

Deposition Control Program, the Stratospheric Ozone

Protection Program, and certain market-based measures

in the National Ambient Air Quality Program. See

WV.Br.42. The 101st Congress knew how to authorize

system-wide measures when it wanted to. Section 111

didn’t make the list. Even so, Respondents argue that

because “system” appears in one of these cap-and-trade

provisions the term must “describe outside-the-fenceline

measures” in Section 111, too. U.S.Br.31. This statutory

sleuthing flips the canon: When the “same Congress that

enacted” a challenged law “expressly” authorizes certain

measures in other statutes but not the one in question,

that statutory silence matters. See Rimini St., Inc. v.

Oracle USA, Inc., 139 S. Ct. 873, 877 (2019).

Respondents distort other “words of general meaning”

in Section 111, as well—leading to similarly “absurd

results.” Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S.

440, 454 (1989). They give no real warrant for construing

function words like “for” broadly, see NY.Br.45, when this

Court typically reads them narrowly, see WV.Br.40-41.

They also double down on the lower court’s idea that

“application,” as in “application of the best system of

emission reduction,” 42 U.S.C. § 7411(a)(1), can be read

without an object.

For all the discussions of

nominalizations

and

indirect

objects,

though,

Respondents have no convincing example of an objectless

13

“application.” Their best shot is “a judge’s application of

precedent.” PowerCo.Br.43; see also NY.Br.23-24. But

no judge applies precedent in the abstract. Application’s

object there is a given set of facts. So too a “best system”

must “appl[y]” to some object or entity or else lose its

meaning. See WV.Br.37-38; see also NY.Br.24 (admitting

it is proper to “infer[]” an object “from context”). Section

111’s only plausible candidate is the regulated “source.”

Moving to other statutory terms, Respondents say

Section 111(a)(1)’s reference to “achievable” systems

should encompass generation shifting and trading

regimes, which private parties often implement in the

energy market. See, e.g., PowerCo.Br.36-37; U.S.Br.4041. But to say that a given measure is achievable for some

entity or person on some level does not answer which

entity or person or level Congress authorized EPA to

regulate.

Respondents also cannot explain how

“achievable” keeps real meaning if EPA can adjust the

actors and regulatory scale at will. EPA could create with

impunity a standard that many existing sources could not

achieve, so long as the energy grid as a whole could

instead. WV.Br.35.

Trusting words like “best” and phrases like “take into

account” to confine EPA’s discretion does not help, either.

E.g., NY.Br.33-36. The question is whether the claimed

agency power exists, not whether other parts of the

statute adequately check its abuse. Nor does the Court

need to embrace an outside-the-fenceline understanding

to keep these terms from becoming superfluous; “best”

and factors like cost help EPA choose among inside-thefenceline measures, too.

For the remaining statutory terms less suited to their

tastes, Respondents have little to say. They cannot

explain how EPA may regulate an “owner or operator”

14

even though that term is separately defined, 42 U.S.C.

§ 7411(a)(5), and the provisions at issue refer to a physical

“source.” See WV.Br.40; JA.543 (CPP, recognizing that

EPA must regulate owners and operators directly to

impose beyond-the-fenceline measures). Terms like

“performance,” “limitation,” and “reduction” get little

airtime in Respondents’ briefs, either. Each confirms that

Congress did not authorize system-wide measures that

limit or shut down source production as a rule’s primary

aim, rather than a downstream effect. WV.Br.34-36.

C. The seams Respondents stitch between Section 111

and other parts of the CAA come apart, too. Respondents

cite language about “retrofit” technologies, for example,

to show that Congress could have similarly reined in

Section 111. E.g., NGO.Br.35. But this language would be

out of place in a provision that focuses on facilities old and

new.

WV.Br.43.

Hammering Section 111(h)(1)’s

discussion of “design, equipment, work practice, or

operational standard[s]” is also wrong.

E.g.,

PowerCo.Br.32. Providing a technology-only alternative

when it is not feasible to capture or measure emissions, 42

U.S.C. § 7411(h)(1)-(2), does not suggest that Congress

expected EPA to jettison technological and other sourcespecific measures more generally. More likely Congress

designed the exception to depart from the norm as little as

possible.

Respondents are also wrong that “no sound reason”

supports construing the scopes of Sections 110 and

111 “differently.” U.S.Br.30; see also NY.Br.26-27,

NGO.Br.6-9. They point to Section 111(d)’s crossreference to Section 110, which tasks EPA with

developing “a procedure similar to” Section 110’s for

submitting state plans. 42 U.S.C. § 7411(d)(1). But similar

procedures do not imply similar substantive powers.

15

Indeed, Section 110 expressly allows certain beyond-thefenceline compliance mechanisms in National Ambient Air

Quality Standards implementation plans. 42 U.S.C.

§ 7410(a)(2). This difference in wording matters: The

Court “generally seek[s] to respect Congress’ decision to

use different terms to describe different categories.”

Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).

Congress’s distinct wording makes sense given the

different functions Sections 110 and 111 serve. Section

111 directs EPA to regulate individual sources “to prevent

and control emissions to the fullest extent compatible with

available technology and economic feasibility.” STAFF OF

S. COMM. ON PUB. WORKS, 93D CONG., A LEGISLATIVE

HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970

VOL. II 900 (Comm. Print 1974). Section 110 focuses on

“the attainment of the primary ambient air quality

standards” within a State overall. Id. at 132. So when

Congress authorized States to use emission trading in

their NAAQS implementation plans in 1990, that change

tracked Section 110’s specific statewide focus—which

Section 111 does not share. Pub. L. No. 101-549 § 101(b),

104 Stat. 2404.

Similarly, the Court should not read Section 111

broadly because it lacks certain limiting language from

Section 112. See PowerCo.Br.33-34. Again, different

purposes explain different substantive scopes. Section

112 limits emissions “hazardous to the health of persons,”

while Section 111 applies to emissions that “may

contribute substantially” to more generalized harms.

STAFF OF S. COMM. ON PUB. WORKS, 93D CONG., A

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT

AMENDMENTS OF 1970 VOL. I 195-96 (Comm. Print 1974).

So it should surprise no one that Section 112—which

concerns more dangerous pollutants—prescribes more

16

stringent standards than Section 111. Granting EPA

broader powers under Section 111 than under Section 112

would therefore turn the CAA’s framework upside down.

It might also give EPA an out to avoid the specific

constraints Congress placed on its significant Section 112

powers.

D. Lastly, two purposes of the Act—emission control

and state discretion—do not justify regulatory power

beyond the source.

Congress must choose “what competing values will or

will not be sacrificed to the achievement of a particular

objective,” Rodriguez v. United States, 480 U.S. 522, 526

(1987), and courts “respect the limits up to which

Congress was prepared to enact a particular policy,”

United States v. Sisson, 399 U.S. 267, 298 (1970).

Congress writes those choices and limits into the U.S.

Code. Presuming “that whatever furthers the statute’s

primary objective must be the law” thus “frustrates rather

than effectuates legislative intent.” Rodriguez, 480 U.S.

at 526. If “policy considerations suggest that” Section 111

“should be altered, Congress must be the one to do it.”

Intel Corp. Inv. Pol’y Comm. v. Sulyma, 140 S. Ct. 768,

778 (2020). That truism does not diminish the importance

of the issues in play. If anything, it amplifies them—

recognizing they are too weighty to be hashed out through

gap-filling alone.

At any rate, neither purpose dictates system-wide

agency authority. On-site measures have had great

success over the CAA’s history. Respondents admit as

much, faulting only the degree of emission reduction EPA

concluded on-site measures would have produced in 2019.

PowerCo.Br.42. Yet technology evolves. EPA will no

doubt keep pushing plants to develop new ways to reduce

emissions. See Portland Cement Ass’n v. Ruckelshaus,

17

486 F.2d 375, 391 (D.C. Cir. 1973) (“Section 111 looks

toward what may fairly be projected for the regulated

future.”). In the meantime, courts do not rewrite statutes

because they might find their results lacking at a

flashpoint in time.

Respondents’ professed fealty to federalism is

similarly misguided. See, e.g., U.S.Br.26-30. Their

concern that a narrower construction of Section 111(a)(1)

might limit States’ Section 111(d) options contradicts the

lower court’s insistence that neither provision informs the

other. JA.106. It also ignores that offering States a few

more compliance options is little comfort if EPA can set

benchmarks that presume facilities will shut down.

Respondents cannot explain how these purported choices

remain genuine under the lower court’s interpretation.

They try, emphasizing the CPP’s “compliance headroom.”

NY.Br.32-33. But EPA recognized that most States would

have had to rely on generation shifting and the like

because other options were not cost effective or would not

have been enough to hit the mandatory targets. JA.658,

671-73, 854.

It is just as off the mark to champion discretion to

adjust for a source’s “remaining useful life” if EPA’s

aggressive “statewide goals” can remain unmovable.

NY.Br.31 n.12. Faced with a statewide target built on

regional or nationwide emission trading, States with

disfavored sources will run out of options to offload

burdens so many of their facilities cannot bear. In other

words, even if an inside-the-fenceline approach shrinks

the number of theoretical options available to the States,

the alternative is worse: letting EPA pick among limitless

options and set market-warping “guidelines” that leave

the States no realistic option but to fall in line.

Cooperative federalism says the States need a fighting

18

chance when handed their statewide target. Because

expanding “best system of emission reduction” hurts state

flexibility, any urgency to expand EPA’s powers to

preserve the States’ is imagined.

IV.

This Case Is Not Moot—And Petitioners Have

Standing.

To keep the Court from cabining EPA’s transformative

power, Respondents argue that no one has standing. They

are mistaken.

A. To begin, Respondents have “confused mootness

with standing.” Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Federal

Respondents, for instance, argue that “circumstances

have mooted” the dispute, so Petitioners “cannot establish

standing.” U.S.Br.17 (emphases added). In their view,

“changed circumstances” long after filing—EPA’s

request to partially stay the mandate—have “eliminated”

any possibility Petitioners will suffer harm. U.S.Br.16, 2122. But the argument that “intervening circumstances

[have] deprive[d] the plaintiff of a personal stake in the

outcome” goes to mootness.2 Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 72 (2013) (cleaned up). To be sure,

mootness and standing both assess litigants’ “personal

In suggesting vacatur, Federal Respondents recognize that their

argument sounds in mootness. U.S.Br.22 (citing United States v.

Munsingwear, Inc., 340 U.S. 36, 39-41 (1950)). Munsingwear vacatur

applies in mootness cases, not standing ones. See Karcher v. May,

484 U.S. 72, 83 (1987). Federal Respondents’ request for partial

vacatur only, U.S.Br.23 n.2, also provides evidence that at least some

part of the D.C. Circuit’s holding gives Respondents a real benefit

and, conversely, causes Petitioners real harm. And even if this case

were moot—it is not—then the appropriate remedy would be total

vacatur, as the lower court rejected the CPP repeal and ACE Rule

based on the same purported error. JA.215.

2

19

interest in the dispute.” Uzuegbunam v. Preczewski, 141

S. Ct. 792, 796 (2021). But mootness considers that

interest “throughout the proceedings.” Id. Standing asks

whether it “exists at the outset.” Id.

Precision matters because swapping standing for

mootness “place[s] the burden of proof on the wrong

party.” Adarand Constructors, Inc. v. Slater, 528 U.S.

216, 221 (2000). Respondents could not bear their “heavy

burden” to show mootness by making it “absolutely clear”

that “the challenged conduct cannot reasonably be

expected to start up again.” Friends of the Earth, 528 U.S.

at 189-90. Most never try, as doing so would close off the

aggressive regulatory options they want to preserve.

Even Federal Respondents admit that EPA “might” readopt the same “regulatory provisions” that the lower

court faulted it for repealing. U.S.Br.20-21 (emphasis in

original); see also Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617, 627 n.5 (2018) (explaining that the Court could

decide a rule-related issue even after the agencies had

proposed to repeal and replace the challenged rule). That

reservation shows that EPA’s temporary cessation should

not end this appeal.

B. Standing would be no reason to dismiss even if it

were relevant. If one Petitioner is in danger of “actual or

imminent” injury that is “fairly traceable to the

challenged action” and “likely” to be “redressed by a

favorable decision,” the case proceeds. Lujan v. Def. of

Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up). All

Petitioners meet these requirements here.

See

NACCO.Reply.16-23. A few additional points warrant

mention for the States.

First, the States undeniably had standing at the time

of filing—when courts evaluate it. Davis v. Fed. Election

Comm’n, 554 U.S. 724, 734 (2008). No Respondent

20

suggests otherwise, and Federal Respondents admit the

States did. U.S.Br.21-22. For good reason: “The lower

the emissions budget [EPA sets], the more difficult and

onerous is the states’ task” to comply; lower targets thus

injure “the states as states.” West Virginia v. EPA, 362

F.3d 861, 868 (D.C. Cir. 2004). Beyond that, the rules the

States defended below would have removed “significant

and costly compliance measures.” Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988). These

injuries are enough.

Respondents invoke cases in which parties press

appeals from decisions that did not injure them in an

Article III sense. U.S.Br.15; NGO.Br.24-25. Those cases

confirm that courts evaluate parties’ standing when they

assume control of a case for the first time. Petitioners

have been here (and threatened with real injury) from the

beginning. More important, they are not side actors.

They are not vindicating “quasi-legislative interest[s],”

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 65 (1997),

or a non-existent right to force the government to

prosecute, Diamond v. Charles, 476 U.S. 54, 65 (1986).

Rather, the States must implement and bear the economic

fallout of EPA’s regulatory scheme. See Lujan, 504 U.S.

at 562 (explaining that it is “substantially more difficult”

to establish standing when parties are not “the object of

the [challenged] government action”). So unlike in

Respondents’ cases, the judgment below affects

Petitioners’ rights and requires “them to do [and] refrain

from doing” certain things. Hollingsworth v. Perry, 570

U.S. 693, 705 (2013).

Second, it does not matter that EPA might think things

over (again) while part of the judgment is stayed.

Jurisdiction “cannot be ousted by subsequent events”

after it vests. Grupo Dataflux v. Atlas Glob. Grp., L.P.,

21

541 U.S. 567, 583 (2004) (cleaned up). And if it could, the

States would still have standing today because “[l]egal

consequences” flow to the States from the D.C. Circuit’s

ruling.

Port of Bos. Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970).

Lest we forget: the court below struck down an effort to

repeal the CPP, vacated its replacement, and ordered

EPA to consider even more aggressive options.

Respondents say the partial stay renders the States’

injuries intangible. See U.S.Br.18. But they cite nothing

saying that a prevailing party may seek a stay and thereby

erase their opponents’ standing to appeal—especially

since stays can be lifted at any time. The lower court’s

judgment reanimates the CPP; that’s what matters for

injury. See NACCO.Reply.17-20. Because EPA remains

free to “reenact[] precisely the same provision” on

remand, the Court has jurisdiction to reverse. City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289

(1982).

A “realistic danger of … direct injury” to the States

also arises “as a result of the … operation or enforcement”

of the un-stayed ACE vacatur. Babbitt v. UFW Nat’l

Union, 442 U.S. 289, 298 (1979). EPA will issue a new

rule. U.S.Br.19 (“EPA is legally obligated to promulgate

a rule governing greenhouse-gas emissions from existing

power plants.”). The States face harm from the decision

requiring it to consider system-wide measures and

affirmatively justify any choice not to impose them when

it does. “The mere possibility” EPA will exercise restraint

“does not suffice to” start this seven-year odyssey anew.

Sackett v. EPA, 566 U.S. 120, 127 (2012). Indeed, the

Court has intervened before—over protests that it was too

soon—when an agency acted “in excess of its delegated

powers and contrary to a specific prohibition.” Leedom v.

22

Kyne, 358 U.S. 184, 188 (1958); see also Champion Int’l

Corp. v. EPA, 850 F.2d 182, 185-86 (4th Cir. 1988) (holding

that district court “properly inquired whether EPA had

exceeded its delegated authority” despite claims of

prematurity).

Standing’s bar is low.

If nominal damages,

Uzuegbunam, 141 S. Ct. at 798, or a prospect of future

enforcement, Susan B. Anthony List v. Driehaus, 573

U.S. 149, 161 (2014), suffice, then the interests at stake

here should, too.

Third, Respondents minimize the “special solicitude”

States enjoy “in [the] standing analysis.” Massachusetts,

549 U.S. at 520. State Petitioners deserve the same room

to maneuver that Massachusetts got when it “assert[ed]

its rights under the [CAA].” Id. at 520 n.17. Respondents

try to reduce special solicitude to something that applies

only where States fault “under-regulation.” U.S.Br.18 &

n.1. But even if the line between over- and underregulation were workable—it is not—this distinction finds

no support. If potential cross-State environmental

consequences can ground state standing, id., then why can

cross-State energy consequences not do the same? The

Court can hear this case out of respect for the States’

sovereign interests, too.

****

Rarely do so many factors lead to the same result.

Here, the text does not stand alone in narrowing EPA’s

authority.

The major-questions, federalism, and

constitutional-avoidance canons confirm that EPA lacks

authority to reorder the entire power sector—or any other

area of American life with buildings that emit greenhouse

gases. And though Respondents contrive justiciability

problems out of EPA’s regulatory waffling to prevent the

23

Court from reaching that result, Petitioners have

standing. In the end, then, the answer is plain, and the

Court should give it.

CONCLUSION

The Court should reverse.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS*

Special Counsel

THOMAS T. LAMPMAN

CALEB A. SECKMAN

Assistant Solicitors

General

*admitted in the District of

Columbia, Michigan, and

Virginia; practicing under

supervision of West Virginia

attorneys

Counsel for Petitioner State of West Virginia

24

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

AUSTIN KNUDSEN

Attorney General

State of Montana

TREG R. TAYLOR

Attorney General

State of Alaska

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

LESLIE RUTLEDGE

Attorney General

State of Arkansas

DAVE YOST

Attorney General

State of Ohio

CHRISTOPHER M. CARR

Attorney General

State of Georgia

JOHN O’CONNOR

Attorney General

State of Oklahoma

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

JASON RAVNSBORG

Attorney General

State of South Dakota

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

ERIC S. SCHMITT

Attorney General

State of Missouri

SEAN D. REYES

Attorney General

State of Utah

25

BRIDGET HILL

Attorney General

State of Wyoming

TATE REEVES

Governor

State of Mississippi

By counsel:

Joseph Anthony Sclafani

Office of the Governor of

Mississippi

550 High Street, Suite 1900

Post Office Box 139

Jackson, MS 39205

joseph.sclafani@

govreeves.ms.gov

(601) 576-2138