Reply Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefFeb 17, 2022
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No. 20-1530 (Consolidated Case
Nos. 20-1531, 20-1780, 20-1778)
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------STATE OF NORTH DAKOTA
Petitioner,
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 OF THE
STATE OF NORTH DAKOTA
---------------------------------♦--------------------------------DREW H. WRIGLEY
Attorney General
STATE OF NORTH DAKOTA
PAUL M. SEBY*
Special Assistant
Attorney General
MATTHEW SAGSVEEN
Solicitor General
MARGARET OLSON
Assistant Attorney General
NORTH DAKOTA OFFICE OF
ATTORNEY GENERAL
600 E. Boulevard Avenue
#125
Bismarck, ND 58505
Telephone: (701) 328-3640
Email: masagsve@nd.gov
maiolson@nd.gov
CHRISTOPHER L. BELL
MATTHEW K. TIESLAU
GREENBERG TRAURIG, LLP
1144 15th Street, Suite 3300
Denver, CO 80202
Telephone: (303) 572-6500
Facsimile: (303) 572-6540
Email: sebyp@gtlaw.com
*Counsel of Record
Counsel for Petitioner State of North Dakota
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Section 111(d) of the Clean Air Act (“CAA”), 42 U.S.
Code § 7411(d), governs air emissions from stationary
sources of air pollutants. Section 111(d) explicitly requires the U.S. Environmental Protection Agency
(“EPA”) to develop guidelines for the States to create
their own Section 111(d) plans to establish “standards
of performance” for controlling air emissions from any
individual “existing source.” Section 111(d)(1) further
provides that EPA guidelines “shall permit” States, in
developing their plans, to “take into consideration,
among other factors, the remaining useful life of the
existing source to which such standard applies.”
The question presented is: Can EPA promulgate regulations for existing stationary sources that require
States to apply binding nationwide “performance
standards” at a generation-sector-wide level, instead of
at the individual source level, and can those regulations deprive States of all implementation and decision-making power in creating their Section 111(d)
plans?
ii
TABLE OF CONTENTS
Page
Summary of Reply Argument ..............................
1
Reply Argument ...................................................
3
I.
North Dakota is Injured by the D.C. Circuit’s Vacatur of the ACE Rule and That
Decision Presents a Case and Controversy
for This Court’s Review .............................
6
II.
The D.C. Circuit’s Decision Presents a
Justiciable Issue on the Vacatur of the
ACE Rule ................................................... 12
III.
The Non-Governmental Organization and
Trade Association’s Arguments are Meritless ............................................................. 19
Conclusion............................................................ 25
iii
TABLE OF AUTHORITIES
Page
CASES
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ........................................... 24, 25
American Lung Assoc. et al. v. EPA et al.,
19-1140 (D.C. Cir.) ...................................................13
Bowen v. Mich. Academy of Family Physicians,
476 U.S. 667 (1986) .................................................13
Chafin v. Chafin,
568 U.S. 165 (2013) ...................................................9
Cohens v. Virginia,
19 U.S. 264 (1821) ............................................. 14, 15
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ........................................... 10, 11
FERC v. Elec. Power Supply Ass’n,
577 U.S. 260 (2016) .................................................16
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................. 6, 10
Marbury v. Madison,
5 U.S. 137 (1803) .......................................................5
Massachusetts v. EPA,
549 U.S. 497 (2007) ............................................. 6, 10
Michigan v. EPA,
576 U.S. 743 (2015) ........................................... 10, 11
National Cable Telecom. Assn. v.
Brand X Internet Services,
545 U.S. 967 (2005) .................................................16
iv
TABLE OF AUTHORITIES – Continued
Page
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ...................................................6
United States National Bank v. Independent
Insurance Agents of America, Inc.,
508 U.S. 439 (1993) ........................................... 14, 15
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) ...................................................5
STATUTES
42 U.S.C. § 7411 .................................................. passim
42 U.S.C. § 7607 ..........................................................13
REGULATIONS
Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23,
2015) ................................................................ passim
Repeal of the Clean Power Plan; Emissions
Guidelines for Greenhouse Gas Emissions
From Existing Electric Utility Generating
Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520
(July 8, 2019) ................................................... passim
1
SUMMARY OF REPLY ARGUMENT
This Court is presented with a justiciable question
of statutory interpretation: Whether the D.C. Circuit
erroneously interpreted the limits of U.S. Environmental Protection Agency’s (“EPA”) authority under Section 111 of the Clean Air Act, 42 U.S.C. § 7411, and
thus improperly vacated the Repeal of the Clean Power
Plan; Emissions Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units;
Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019) (the “Affordable Clean Energy Rule” or “ACE Rule”), JA.17292030.
The D.C. Circuit wrongly vacated the ACE Rule,
which North Dakota supports and seeks to reinstate in
this action. North Dakota was harmed by the wrongful
vacatur of the ACE Rule, which established a lawful
framework for the State and EPA to cooperatively and
jointly regulate greenhouse gas emissions from existing power plants. Just as North Dakota had standing
to intervene and support affirmation of the ACE Rule
in the D.C. Circuit, North Dakota continues to have
that standing now as it seeks to reinstate the ACE
Rule that was wrongly vacated. The D.C. Circuit’s decision deprived North Dakota of the regulatory framework in the ACE Rule by which North Dakota could
regulate greenhouse gas emissions from existing
power plants.
This is a justiciable matter in which North Dakota
seeks specific relief: the reinstatement of the duly
2
promulgated ACE Rule. North Dakota is not seeking
an advisory opinion to guide some potential future
EPA rulemaking.
The Court should reject Respondents’ theory that
the D.C. Circuit’s wrongful vacatur is of no legal consequence and cannot be challenged because EPA now
prefers that the ACE Rule was never promulgated in
the first place. Challenging the wrongful vacatur of
lawfully promulgated rules is not the sole privilege of
the promulgating agency. EPA cannot effectuate a
“pocket repeal” of the ACE Rule by attempting to prohibit other parties with an interest in the Rule from
challenging the D.C. Circuit’s wrongful vacatur. Should
EPA wish to repeal the ACE Rule it may avail itself of
the public notice and comment procedures under the
Administrative Procedure Act (“APA”) and CAA to do
so; but it should not be allowed to rely solely on a
wrongly granted vacatur that it then claims no one else
can challenge.
Turning to the merits, North Dakota reiterates its
position, not seriously contested by any of the Respondents, that a plain reading of the CAA gives the
States the lead authority to establish performance
standards for controlling air emissions from existing
sources, based on guidance established by EPA. The
ACE Rule established a regulatory framework that respected the cooperative federalism framework mandated by Congress.
North Dakota respectfully requests that this
Court confirm the delicate balance of cooperative
3
federalism established by Congress in Section 111 of
the CAA that gives the States the primary role establishing standards of performance for existing sources
of air emissions, vacate the D.C. Circuit’s opinion below, and reinstate the ACE Rule.
---------------------------------♦---------------------------------
REPLY ARGUMENT
The relief North Dakota seeks in this case is (1)
the reversal of the Court of Appeals’ decision below,
and (2) the reinstatement of the ACE rule wrongly vacated by the decision below.
North Dakota has standing to seek a reinstatement of the ACE Rule, just as the non-federal Respondents had standing to seek the D.C. Circuit’s vacatur of
that same rule. North Dakota did not lose its standing
by dint of the D.C. Circuit’s erroneous vacatur of the
ACE Rule—instead it was that erroneous vacatur that
solidified North Dakota’s standing.
North Dakota has significant and legally cognizable interests that were affected by the ACE Rule and
injured by the vacatur of the ACE Rule. North Dakota
is a major energy producing state. North Dakota’s energy production comes from several different types of
“fossil fuels” (lignite coal, oil, and natural gas) as well
as several types of “renewable energy” (wind, solar, hydropower, and biofuels). A significant portion of North
Dakota’s electricity is generated by power plants that
emit greenhouse gas emissions, the specific target of
both the CPP and ACE Rules. North Dakota has
4
fundamental sovereign interests in regulating its natural resources and their development and use, and the
control of emissions from existing power plants, exercised by North Dakota through the authority and discretion established by Congress in Section 111(d) of
the CAA. 42 U.S.C. § 7411(d). North Dakota has sought
to protect its statutorily mandated role in CAA Section
111(d) to regulate greenhouse gas emissions from existing power plants throughout the ACE Rule rulemaking process, including seeking and obtaining a
nationwide stay of the precursor rule to the ACE Rule,
the Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units,
80 Fed. Reg. 64,662 (Oct. 23, 2015) (the “Clean Power
Plan” or “CPP”) from this Court and supporting the
ACE Rule.
North Dakota supported the ACE Rule, which
both rescinded the CPP and established the new ACE
Rule recognizing the States’ statutorily mandated role
under CAA Section 111(d), including the responsibility
to establish and enforce standards of performance for
existing sources of air pollution, applying the States’
expertise in source-specific considerations and factors
to control such emissions. The ACE Rule would have
allowed North Dakota to move forward with the regulation of greenhouse gas emissions from existing power
plants in a manner consistent with the cooperative federalism mandate established by Congress. The wrongful vacatur of the ACE Rule harmed these sovereign
North Dakota interests.
5
This is also a justiciable case and controversy in
which North Dakota seeks specific relief: reinstatement of the ACE Rule. North Dakota does not seek an
advisory opinion. Respondents’ attempt to deprive
North Dakota of its right to judicial review simply because the Respondents agree with the decision below
should be rejected. If Respondents’ arguments were accepted, the federal agency that promulgated a later vacated rule would be the sole and privileged gatekeeper
to decide whether such a vacated rule could be reviewed by this Court. The D.C. Circuit’s erroneous vacatur of the ACE Rule is a justiciable case and
controversy in which North Dakota seeks, and this
Court may provide, specific, not advisory, relief.
Deciding this case now is wholly within the permissible authority of this Court “to say what the law
is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). Recognizing the “unremarkable proposition that an agency
may adopt policies to prioritize its expenditures within
the bounds established by Congress,” the Court should
vacate the decision below and reinstate the ACE Rule,
and not stand by while EPA “embarks on this multiyear voyage of discovery” in promulgating new rules
based on the D.C. Circuit’s erroneous decision vacating
the ACE Rule and granting EPA massive new authority “without regard for the thresholds prescribed by
Congress” in Section 111(d). Utility Air Regulatory
Group v. EPA, 573 U.S. 302, 327-328 (2014) (emphasis
in original).
6
I.
NORTH DAKOTA IS INJURED BY THE
D.C. CIRCUIT’S VACATUR OF THE ACE
RULE AND THAT DECISION PRESENTS A
CASE AND CONTROVERSY FOR THIS
COURT’S REVIEW
Federal courts only adjudicate “cases” or “controversies” in which parties demonstrate a “personal
stake” in the suit. Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009). The party invoking the Court’s jurisdiction must satisfy three conditions: that he has
“suffered an injury in fact” that was caused by “the conduct complained of ” and that “will be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-561 (1992).
In Massachusetts v. EPA, this Court expanded
Lujan and recognized that a State’s “stake in protecting its quasi-sovereign interest . . . is entitled to special
solicitude in our standing analysis.” 549 U.S. 497, 520
(2007). Just as in Massachusetts v. EPA, North Dakota
has a vested interest in the sovereign authority that
“Congress has ordered EPA to protect” in the CAA by
giving North Dakota responsibility to establish performance standards, including the autonomy to apply
source specific considerations to 111(d) determinations. Id. at 519. North Dakota also has a specific interest in the regulation of greenhouse gas emissions
from existing power plants in the State.
The Federal Respondent’s argument that North
Dakota would “derive no practical benefit from the
[ACE] Rule’s reinstatement” and that North Dakota
7
has “no concrete interest” in reinstating the ACE Rule
misses the mark. Br. for the Fed. Respondent’s, at 17.
North Dakota has a concrete interest in the reinstatement of the ACE Rule that created a lawful
framework for the regulation of greenhouse gas emissions in the State, and in the repeal of the CPP rule
that would have injured North Dakota and its citizens.
Vacating the ACE Rule injured North Dakota by removing the regulatory framework by which North Dakota could regulate existing sources. This is not some
future injury or one based on speculative actions EPA
may take in the future. The injury is present now, as
the D.C. Circuit’s vacatur of the ACE Rule harms
North Dakota, which has a sovereign interest in a lawful regulatory framework for regulating greenhouse
gas emissions.1
North Dakota regulates air emissions from existing fossil-fueled electric power generation, a central
method of electric power generation in North Dakota.
The vacated ACE Rule created a lawful framework to
allow North Dakota and EPA to cooperatively regulate
the greenhouse gas emissions from North Dakota’s
power plants. The ACE Rule benefited North Dakota
by rescinding the unlawful CPP and replacing it with
a rule in line with the authority granted to EPA and
1
For the same reasons, the Non-Governmental and Trade
Association Respondents’ (“NGO Respondents”) argument that
North Dakota is only seeking standing based on injury North Dakota would experience under the CPP is misplaced, as North Dakota’s injury is based on the D.C. Circuit’s improper vacatur of
the ACE Rule. NGO Respondents Br., at 27-29.
8
the States by Congress. The decision to vacate the ACE
Rule harmed North Dakota by removing the benefits
of the ACE Rule, including the lawful framework for
regulating greenhouse gas emissions now.
Respondents mischaracterize North Dakota’s interests in this matter and the federal-state cooperative
framework of the CAA by suggesting that the absence
of, or at least a delay in, Federal regulation does not
injure North Dakota. North Dakota is not a “regulated
entity” that suffers no injury or benefits if the ACE
Rule no longer “applies.” Rather, North Dakota is a sovereign State with rights and duties under its own Constitution, statutes and regulations, and as EPA’s
partner in the cooperative federalism framework established by Congress under the CAA, to control air
emissions to protect public health and the environment. It also has an interest in doing so lawfully. The
improper vacatur of the ACE Rule, which eliminated
the lawful cooperative federal-state framework for regulating greenhouse gas emissions from power plants,
created a regulatory void in the cooperative federalism
framework that harmed North Dakota’s ability to and
interests in the lawful regulation of greenhouse gases
from existing power plants. North Dakota supported
the ACE Rule because the ACE Rule benefited North
Dakota in its role as a sovereign regulator, and the vacatur of the ACE Rule harmed those interests.
It was to protect these sovereign interests that
North Dakota supported the ACE Rule during the
rulemaking process. Until now, no court or party has
ever suggested that North Dakota, as a major fossil-
9
fuel energy producing and generating State with the
authority and duty to regulate air emissions, did not
have standing to support the repeal of the CPP and the
promulgation of the replacement ACE Rule. North Dakota indisputably had standing at the D.C. Circuit: it
had a “personal stake” in the matter that would be injured if there was an adverse decision, and North Dakota’s concerns would be redressed by a favorable
decision. Now that decision has come to pass, and it
was not favorable: the “personal stake” that North Dakota sought to protect was instead injured. North Dakota is are therefore “asking for typical appellate
relief ”—that this Court “reverse” the decision below
and “undo what it has done.” Chafin v. Chafin, 568 U.S.
165, 173 (2013)
North Dakota did not lose its standing when the
ACE Rule was vacated. Respondents are suggesting a
one-way street: reinstating the ACE Rule would harm
the opponents of the rule, but vacating the ACE Rule
does not harm the proponents of the rule. Similarly, the
Federal Respondents’ decision to no longer support the
ACE Rule does not adversely affect North Dakota’s
standing. North Dakota’s rights to protect its interests
in Federal courts are not dependent on the shifting of
the political winds. North Dakota’s “personal stake” in
the protection of its CAA implementation authorities
and the regulation of greenhouse gas emissions from
power plants remain unchanged regardless of the
views of EPA. Respondents position that North Dakota no longer has standing because EPA no longer
supports the ACE Rule should be rejected (if EPA was
10
challenging the D.C. Circuit’s vacatur of the ACE Rule,
it is highly unlikely that they would be claiming that
North Dakota has no standing).
Just as in Massachusetts v. EPA, North Dakota
has a “well-founded desire to preserve its sovereign”
authority to regulate existing sources within its borders through reinstatement of the ACE Rule. 549 U.S.
at 519. The D.C. Circuit’s decision to vacate the ACE
Rule undid that Rule’s recognition of Congress’ carefully crafted balance in Section 111, causing a harm
that is both “actual” and “imminent” to North Dakota
by vacating the regulatory framework under which
North Dakota could have exercised its sovereignty to
regulate existing sources. Id. at 521 (citing to Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
To conclude otherwise would be antithetical to the
longstanding judicial review provisions of the APA and
the CAA, and the Court’s own past practice of reviewing decisions deciding the bounds of agency rulemaking authority. See, e.g., EPA v. EME Homer City
Generation, L.P., 572 U.S. 489, 506 (2014) (The Court
granting certiorari to “decide whether the D.C. Circuit
had accurately construed the limits the CAA places on
EPA’s authority” where the D.C. Circuit vacated EPA’s
“Transport Rule.”); Michigan v. EPA, 576 U.S. 743
(2015) (The Court granting certiorari to determine
whether the D.C. Circuit’s upholding of EPA’s decision
to refuse to consider costs in deciding that regulation
of coal- and oil-fired power plants was appropriate and
necessary under the CAA.).
11
Indeed, in EPA v. EME Homer City Generation,
L.P., individual States comprised both petitioner and
respondent groups in support of, and opposed to, the
vacated Transport Rule, and the Court did not question the standing of any of the parties. The same was
true in Michigan v. EPA, where individual States were
aligned both in support of, and opposition to, the D.C.
Circuit’s decision. The same principles apply here, and
North Dakota has standing to challenge the D.C. Circuit’s vacatur of the ACE Rule, which North Dakota
desires be reinstated.
Federal Respondent’s motion to “withhold issuance of the mandate with respect to the vacatur of the
Clean Power Plan Repeal Rule until the EPA responds
to the court’s remand in a new rulemaking action” does
not change this conclusion. JA.270-271. The fact that
the repeal of the CPP will not become effective if and
until EPA promulgates a new rule is irrelevant to
North Dakota’s challenge to the D.C. Circuit’s vacatur
of the ACE Rule. North Dakota’s request for relief is to
reinstate the vacated ACE Rule, a portion of the D.C.
Circuit’s mandate that has not been stayed.
North Dakota has been injured by the improper
vacatur of the ACE Rule. The Court can redress that
injury by vacating the D.C. Circuit’s opinion, and reinstating the ACE Rule.
12
II.
THE D.C. CIRCUIT’S DECISION PRESENTS A JUSTICIABLE ISSUE ON THE
VACATUR OF THE ACE RULE.
The D.C. Circuit’s vacatur of the ACE Rule presents a justiciable case and controversy for the Court
to properly review, and North Dakota is not seeking an
advisory opinion.
The D.C. Circuit vacated the ACE Rule by expressly expanding the bounds of EPA’s authority under
Section 111(d) beyond what was authorized by Congress at the expense of the States’ statutorily proscribed authority and discretion. The D.C. Circuit
misread the plain text of Section 111(d) and its decision is contrary to the Court’s prior decisions enforcing
the bounds of the cooperative federalism established
by the CAA. See North Dakota Merits Br., at 29-56 Relying on those grievous errors in statutory interpretation and departure from this Court’s jurisprudence, the
D.C. Circuit improperly vacated the ACE Rule. It is
precisely these holdings and outcomes that North Dakota contends were in error and were the basis for
North Dakota’s petition for certiorari to this Court, not
for speculative advisory purposes but to expressly reverse the decision below and reinstate the ACE Rule.
See North Dakota’s Petition, at 39.
Section 111(d) embodies the fundamental cooperative federalism structure of the CAA by requiring
that regulations promulgated by the EPA targeting existing generation sources under which “each State
shall submit to the Administrator a plan which (A)
13
establishes standards of performance for any existing
source for any air pollutant” and “shall permit the
State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors,
the remaining useful life of the existing source to
which such standard applies.” 42 U.S.C. § 7411(d)(1)
(emphasis added). The D.C. Circuit’s decision vacating
the ACE Rule extinguished North Dakota’s statutorily
mandated State role in Section 111(d) to establish
standards of performance in its State plan to regulate
existing sources in a cooperative federalism framework alongside EPA.
None of the Respondents claimed in the D.C. Circuit that EPA’s interpretation of its authority under
Section 111(d) in the ACE Rule presented non-justiciable issues or that the Rule’s proponents were seeking
an advisory opinion. Neither did Respondents claim
that EPA’s actions in promulgating the ACE Rule were
somehow immune from judicial review. See Bowen v.
Mich. Academy of Family Physicians, 476 U.S. 667, 672
(1986) (holding that judicial review of an agency’s regulatory authority is presumed valid absent Congress
specifically legislating to the contrary).
The Respondents who challenged the ACE Rule
under the judicial review provision of the CAA, 42
U.S.C. § 7607 now claim that such review is unavailable to Petitioners. See, e.g., American Lung Assoc. et al.
v. EPA et al., 19-1140 (D.C. Cir.), Petition for Review
14
(Document No. 1796317).2 To now claim that the
Court’s review of a decision vacating the ACE Rule
would be advisory, in the same proceedings where the
Respondents exercised their right of judicial review to
challenge the ACE Rule, is disingenuous.
That EPA has since indicated it may pursue a new
rulemaking to replace both the ACE Rule and the CPP,
and that no current Section 111 rule regulating greenhouse gas emissions from power plants is in effect after
the D.C. Circuit’s vacatur and stay order, does not
render the decision below unreviewable. See Federal
Respondents Br., at 16-18; State and Municipal Respondents Br., at 42-45; Power Company Respondents
Br., at 21-24; NGO Respondents Br., at 23-42. The Executive Branch’s announcements cannot deprive this
Court of its jurisdiction or authority or deprive Petitioner of its rights of judicial review. “The judicial
Power extends to cases arising under . . . the Laws of
the United States, Art. III, § 2, cl. 1, and a court
properly asked to construe a law has the constitutional
power to determine whether the law exists.” United
States National Bank v. Independent Insurance Agents
of America, Inc., 508 U.S. 439, 446 (1993) (quoting Cohens v. Virginia, 19 U.S. 264, 406 (1821) (internal quotations omitted).
2
With the exception of Federal Respondents, who defended
EPA’s authority to promulgate the ACE Rule in front of the D.C.
Circuit (and never questioned standing or justiciability), but who
now claim that North Dakota’s standing and the justiciability of
this case was extinguished by the D.C. Circuit’s decision to vacate
EPA’s own ACE Rule.
15
North Dakota has challenged the D.C. Circuit’s decision because it wrongly vacated the ACE Rule which
established a lawful framework for regulating greenhouse gas emissions from power plants. That decision
was based on an incorrect interpretation of the CAA
that deprived States of their express authority and responsibility to establish performance standards
through State plans, and bestowed authority on EPA
not granted to it by Congress and “valuable legal rights
. . . [will] be directly affected to a specific and substantial degree by a decision on whether” the ACE Rule
“was proper and lawful.” Id. (internal quotations omitted). For North Dakota, charged by its own laws and
the Clean Air Act to regulate air emissions from existing sources, the D.C. Circuit’s decision was anything
but “hypothetical.” Id. at 447. Instead, this case, as in
United States National Bank, is a controversy which
“depend[s] on the validity of [the ACE Rule], that
would be a case arising under the constitution, to
which the judicial power of the United States” extends.
Id. at 446-447. Further, the fact that the ACE Rule does
not for the moment apply is precisely the matter for
which North Dakota seeks redress. There is nothing
“hypothetical” about the decision below or the relief
sought by North Dakota: the D.C. Circuit erroneously
vacated the ACE Rule dealing with a subject matter
that all parties agree is of great national significance
and North Dakota is petitioning the Court to reinstate
it.
That the opinion below vacated the ACE Rule does
not change this conclusion. It is fully within the Court’s
16
authority to reverse the D.C. Circuit’s decision and reinstate the ACE Rule. For example, in FERC v. Elec.
Power Supply Ass’n, the D.C. Circuit vacated a FERC
rule, holding that FERC “lacked authority” to issue the
rule. 577 U.S. 260, 275 (2016). This Court granted certiorari to “decide whether [FERC] ha[d] statutory authority” to issue the rule, and ultimately held that
FERC did have that authority and reversed the D.C.
Circuit’s decision vacating the FERC Rule. Id. at 276;
see also National Cable Telecom. Assn. v. Brand X Internet Services, 545 U.S. 967, 980 (2005) (This Court
granting certiorari to review a Ninth Circuit decision
vacating portions of an FCC rulemaking in order “to
settle the important questions of federal law that these
cases present,” and ultimately reversing the D.C. Circuit’s decision.).
The Supreme Court’s jurisdiction to review agency
actions is not limited to cases in which the courts below
affirmed the agency rule. Nor is the Court’s jurisdiction
limited by changes in the promulgating agency’s position. The fact that EPA no longer supports the ACE
Rule does not deprive North Dakota of standing, render the legal issues non-justiciable, or prevent this
Court from reinstating the wrongly vacated ACE Rule.
If the Court reinstates the ACE Rule, EPA may
choose to revise or replace that rule, in accordance with
the substantive and procedural requirements of the
CAA and the APA. Whatever EPA’s future plans may
be, they do not deprive the Court of its jurisdiction today to review the decision below or its authority to reinstate the ACE Rule that was improvidently vacated.
17
Further, EPA’s changed position or plans are not a
legal basis for keeping the ACE Rule off the books. If,
as North Dakota argues, the ACE Rule was incorrectly
vacated by the D.C. Circuit, then the ACE Rule should
be reinstated. EPA might later seek to revise a reinstated ACE Rule, so long as it adheres to the requirements of the CAA and complies with the public notice
and comment procedures of the APA, including explaining and justifying any changes it might propose.
What EPA cannot do is block any review of the D.C.
Circuit decision and use the improperly granted vacatur as a “pocket repeal” of the ACE Rule accomplished
without following the procedural requirements of the
CAA and the APA.
Similarly, Respondents claims that North Dakota
and other Petitioners are challenging the CPP miss the
mark. North Dakota is not challenging the CPP. This
Court stayed the CPP, it never went into effect, EPA
repealed the CPP and, despite the D.C. Circuit’s stay
of the portion of its decision vacating the repeal the
CPP, EPA has announced that it does not intend to repromulgate the CPP. Respondents also ignore (as did
the D.C. Circuit) the point that EPA’s decision to repeal
the CPP was a separate and distinct agency action
from its decision to promulgate the ACE Rule. See ACE
Rule, JA.1784-1785 (“the repeal of the CPP is a distinct
final agency action that is not contingent upon the
promulgation of ACE or the new implementing regulations.”). So, the CPP is not at issue or being challenged
in North Dakota’s petition to seek reinstatement of the
ACE Rule.
18
However, the D.C. Circuit relied extensively on the
reasoning of the CPP, which had been stayed by this
Court, to justify its vacatur of the ACE Rule. Further,
the ACE Rule, which was promulgated separately but
at the same time as the repeal of the CPP, corrected
the errors of and replaced the CPP. Therefore, any discussion of the ACE Rule and the decision below cannot
avoid discussion of the CPP. That unavoidable overlap
does not transform North Dakota’s petition to reinstate the ACE Rule into a challenge to the defunct CPP.
North Dakota is not bringing this Petition asking
the Court to speculate or opine on or direct whatever
future actions EPA might take. North Dakota is seeking the vacatur of the D.C. Circuit’s decision and the
reinstatement of the ACE Rule because the D.C. Circuit erroneously concluded that EPA had powers not
granted to EPA by Congress in Section 111(d), and in
doing so deprived North Dakota of its implementation
and decision-making powers under Section 111(d)
plans in violation of its sovereign authority established
by Congress in the CAA. See North Dakota’s Petition,
at i (Question Presented).
Similarly, North Dakota is not bringing this case
to argue about “measures that the [EPA] might adopt
in its upcoming rulemaking” such as would constitute
an advisory opinion. Federal Respondents Br., at 18-19;
see also State and Municipal Respondent Br., at 4647; Power Company Br., at 20; NGO Respondents Br.,
at 30-31. Instead, North Dakota is challenging the
D.C. Circuit’s decision to vacate the ACE Rule that
19
established a lawful federal-state framework for regulating greenhouse gas emissions from power plants.
III. THE NON-GOVERNMENTAL ORGANIZATION AND TRADE ASSOCIATION’S ARGUMENTS ARE MERITLESS.
This case can be decided on the simple basis of
statutory interpretation: the D.C. Circuit incorrectly
vacated the ACE Rule because it erroneously interpreted the plain language of Section 111(d) of the CAA
to effectively dismantle the federal-state cooperative
framework established by Congress and eviscerate
North Dakota’s explicit authority to establish performance standards governing emissions of greenhouse
gases from existing power plants.
The Non-Governmental Organization and Trade
Association Respondents (“NGO Respondents”) are the
only Respondents to directly address North Dakota’s
merits arguments. The NGO Respondents do so only in
the final closing pages of their merits brief, arguing
first (and echoing the D.C. Circuit) that “EPA did not
assert” as a ground for repealing the CPP the requirement that it is the States who set standards of performance for existing sources, and that the “court of
appeals did not address” that grounds for the vacating
ACE Rule. NGO Respondents Br., at 49-50.
This narrative is incorrect. The D.C. Circuit ignored large sections of EPA’s explanation in the ACE
Rule discussing that the CPP was inconsistent with
the mandate of Section 111(d)(1) that the States have
20
the authority and right to make source-specific determinations in setting standards of performance. North
Dakota Merits Br., at 32. Thus, the D.C. Circuit was
plainly wrong when it concluded that EPA’s sole
ground for repealing the CPP and promulgating the
ACE Rule was that “the text of Section 7411 is clear
and unambiguous in constraining the EPA to use only
improvements at and to existing sources in its best
system of emission reduction.” JA.103. This is clearly
evidenced from the portion of the ACE Rule setting
forth EPA’s basis for the repeal, which NGO Respondents acknowledge is located at JA.1739-1786. There,
EPA stated that “EPA’s role under CAA section 111(d)
is narrow. Indeed, CAA section 111(d) tasks states
with ‘establish[ing] standards of performance for any
existing source’ and ‘provid[ing] for the implementation and enforcement of such standards of performance.’ ” JA.1743. EPA went on to state that Section
111(d) “requires further that the regulations the EPA
is directed to adopt must permit the state ‘to take into
consideration, among other factors, the remaining useful life of the existing source to which such standard
[of performance] applies.’ ” Id. That is because EPA’s
best system of emission reduction (“BSER”) guidelines
simply “provide states with information to assist them
in developing state plans establishing standards of
performance for existing designated facilities within
their jurisdiction that are submitted to the EPA for review.” Id. at 1744. Thus the D.C. Circuit’s characterization of the basis for EPA’s decision was materially
incorrect.
21
The D.C. Circuit’s undue focus on EPA’s repeal of
the CPP also contributed to its improper vacatur of the
separately promulgated ACE Rule. The D.C. Circuit
(and the NGO Respondents) improperly ignored EPA’s
statement in the ACE Rule regarding the repeal of the
CPP that “[a]lthough this action appears in the same
document as the ACE Rule and the revisions to the
emission guidelines implementing regulations, the repeal of the CPP is a distinct final agency action that is
not contingent upon the promulgation of ACE or the
new implementing regulations” (JA.1784-1785), and
that the EPA repealed “the CPP as a separate action,
distinct from its promulgation of the ACE Rule and revisions to its regulations implementing section 111(d)”
(Id. at 1786). Thus the D.C. Circuit committed an additional material error by simply applying its already
incorrect analysis of the repeal of the CPP to the separately promulgated ACE Rule.
Therefore, all of EPA’s justifications for promulgating the ACE Rule, including that it is the States
who set standards of performance for existing sources,
are relevant to the Court’s analysis of the D.C. Circuit’s
basis for vacating the ACE Rule. See, e.g., ACE Rule, at
Section III (The Affordable Clean Energy Rule)
JA.1786-2030. These include multiple references to
Section 111(d)(1) and State plans, EPA’s obligation to
allow States to take into account source-specific factors
(including the useful life of facilities) when States set
performance standards (JA.1798-99; 1812-13; 1822),
and EPA’s conclusion that it was ultimately the State’s
22
responsibility to establish the performance standards
(JA.1809, 1836, 1866, 1870).
The D.C. Circuit was wrong and EPA did not base
its reasoning for promulgating the ACE Rule solely on
the determination that Section 7411 constrains the
EPA to consider only improvements at and to existing
sources in establishing its BSER, but rather on much
broader considerations, including that States are the
authorized body under CAA Section 111(d) to set
standards of performance for air emissions existing
sources. EPA’s reasons for promulgating the ACE Rule
were not limited to the appropriate location of source
controls, but also on the much broader premise that
Section 111(d) directs EPA to establish BSER “guidelines” and that give the States flexibility in exercising
the authority granted to them by Congress to establish
performance standards that take site-specific factors
into account. The D.C. Circuit’s erroneous failure to
consider EPA’s express reliance on the State authority
to support promulgation of the ACE Rule is properly
before this Court.3
The Court should also reject the NGO Respondents’
assertion that North Dakota’s position would allow
3
Further, North Dakota argued in the D.C. Circuit that the
ACE Rule corrected the CPP’s overreach by returning to the
States “matters traditionally reserved for States: ‘administration
of integrated resources planning and . . . utility generation and
resource portfolios.’ ” Thus the issues and EPA reasoning that the
D.C. Circuit ignored in its vacatur of the ACE Rule were also
raised below by North Dakota. Final Core Legal Issues Brief of
the State of North Dakota, at 14, Case No. 19-1140 (Doc. No.
1856454) (October 13, 2020).
23
States to set standards of performance “untethered
from any federal requirements” (NGO Respondents
Br., at 50) and that North Dakota seeks a “free pass” to
“ignore federal emission limits broadly achievable by
sources in a given category” NGO Br., at 52). To the
contrary, consistent with the federal-state cooperative
federalism framework, North Dakota explicitly
acknowledges that the standards of performance set by
States must be based on “emission limitations that are
achievable through the application” of the BSER which
is established by EPA. North Dakota Merits Br., at 29
(citing to 42 U.S.C. 7411(a)(1)).
EPA’s BSER must be “adequately demonstrated”
and take “into account the cost of achieving [emission
reductions through the application of that system] and
any nonair quality health and environmental impact
and energy requirements.” 42 U.S.C. § 7411(a)(1).
While EPA’s BSER cannot infringe on the State’s authority under Section 111(d)(1) to establish performance
standards and to take into account source-specific
factors, the States must apply the BSER guidelines
to set an achievable “emission limitation” for existing
sources. Id. at (a)(1). In addition to establishing the
BSER (i.e., the practically achievable and affordable
“guardrails” within which the States exercise their responsibility to establish standards of performance in
State plans), EPA also has the opportunity to review
and approve the State plans. Lastly, if a State declines
to exercise its authority, then EPA may create a plan
establishing performance standards for that State. But
what EPA cannot do is use its limited BSER authority
24
to effectively eviscerate the States’ authority to establish performance standards in State plans. North Dakota’s position is consistent with the cooperative
EPA-State partnership established by Congress in the
CAA, pursuant to which neither EPA’s nor the State’s
authority is unfettered.
NGO Respondents reject the cooperative federalism framework of the CAA and imply that any limitation on EPA’s power, or any exercise of authority or
discretion by the States, will result in chaotic “free
rides” of unregulated emissions. However, the CAA did
not grant EPA such unfettered and centralized power.
States are constrained to apply EPA’s BSER guidelines
to set emission limitations for “any particular source,”
and to “take into consideration” source-specific factors
such as “the remaining useful life of the existing source
to which such standard applies.” Id. at (d)(1). In turn,
EPA’s BSER guidelines must be capable of being applied so that State-established emission limitations
can take source-specific considerations into account,
and are achievable and affordable for existing sources.
EPA’s authority to establish BSER guidelines cannot
be read to transform the BSER into centralized and
nationally applicable performance standards that effectively eliminate the State’s primary responsibility
and authority to establish standards of performance
for existing sources through State plans.
The NGO Respondents also cannot rely on American Electric Power Co. v. Connecticut (“AEP”) as support for their incorrect proposition that State section
25
111(d) plans must “achieve EPA[‘s] emission standards.” NGO Br., at 51 (citing to AEP, 564 U.S. 410,
428). AEP stated that “for existing sources, EPA issues
emissions guidelines,” and “in compliance with those
guidelines and subject to federal oversight, the States
then issue performance standards for stationary
sources within their jurisdiction.” 564 U.S. 410, 424
(2011) (emphasis added). AEP does not support NGO
Respondents’ effort to transform EPA’s BSER emission
guidelines into binding national performance standards
and reduce State plans to mere procedures to implement EPA’s diktats.
The D.C. Circuit failed to recognize and adhere to
this Court’s direction in AEP that Section 111(d) restricts EPA to creating guidelines that apply to generation sources “within the same category,” which States
then use to “issue performance standards” that can be
applied to individual “stationary sources” within the
States’ jurisdiction. Id. at 424.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons and the reasons set forth
in North Dakota’s Merit’s Brief, the judgment below
should be reversed, the D.C. Circuit’s decision vacating
26
the ACE Rule should be vacated, and the ACE Rule reinstated.
Respectfully submitted,
DREW H. WRIGLEY
Attorney General
STATE OF NORTH DAKOTA
PAUL M. SEBY*
Special Assistant
Attorney General
MATTHEW SAGSVEEN
Solicitor General
MARGARET OLSON
Assistant Attorney General
NORTH DAKOTA OFFICE OF
ATTORNEY GENERAL
600 E. Boulevard Avenue
#125
Bismarck, ND 58505
Telephone: (701) 328-3640
Email: masagsve@nd.gov
maiolson@nd.gov
GREENBERG TRAURIG, LLP
1144 15th Street, Suite 3300
Denver, CO 80202
Telephone: (303) 572-6500
Facsimile: (303) 572-6540
Email: sebyp@gtlaw.com
*Counsel of Record
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.