Petition for Writ of Certiorari — The North American Coal Corporation, Petitioner v. Environmental Protection Agency, et al.

No. 20-____

IN THE

Supreme Court of the United States

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Petition for a Writ of Certiorari

to the U.S. Court of Appeals

for the D.C. Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES T. WEHLAND

JONES DAY

77 W Wacker Dr.

Chicago, IL 60601

JEFFERY D. UBERSAX

KUSHNER & HAMED CO.

1375 E. Ninth St., Ste. 1930

Cleveland, OH 44114

YAAKOV M. ROTH

Counsel of Record

STEPHEN J. PETRANY

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3939

yroth@jonesday.com

Counsel for Petitioners

i

QUESTION PRESENTED

In 2015, the EPA promulgated its “Clean Power

Plan,” which for the first time imposed carbon dioxide

emissions limits on existing coal- and gas-fired power

plants. The EPA developed those standards based not

on any technology that the plants could themselves

apply in their operations, but instead on an industrywide system of “generation shifting”—a cap-andtrade-style regime that effectively required many

existing power plants to be shuttered or to scale back

while subsidizing renewable energy sources.

This Court stayed that rule even before any lower

court had reviewed it. And no court ever did review it,

because the EPA soon changed course. It repealed the

Clean Power Plan, reasoning that the Clean Air Act

authorized it only to promulgate standards based on

technology actually applicable to a given existing

source—not to devise its own national, systemic

solution to greenhouse gas emissions.

Now, in the whiplash-inducing opinion below, the

D.C. Circuit has held that this repeal was arbitrary

and capricious, because the Act supposedly does grant

the EPA the requisite authority after all.

With that background, the question presented is:

Whether 42 U.S.C. § 7411(d), which authorizes the

EPA to impose standards “for any existing source”

based on limits “achievable through the application of

the best system of emission reduction” that has been

“adequately demonstrated,” grants the EPA authority

not only to impose standards based on technology and

methods that can be applied at and achieved by that

existing source, but also allows the agency to develop

industry-wide systems like cap-and-trade regimes.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT

The D.C. Circuit consolidated numerous cases

under Case No. 19-1140. Respondents in the D.C.

Circuit proceeding below were the Environmental

Protection Agency and its Administrator.*

Petitioners and intervenors in the D.C. Circuit

proceedings below were as follows.

No. 19-1140: Petitioners were American Lung

Association and American Public Health Association.

Intervenor for petitioners was: State of Nevada.

Intervenors for respondents were: AEP Generating

Company, AEP Generation Resources Inc., America's

Power, Appalachian Power Company, Chamber of

Commerce of the United States of America, Indiana

Michigan Power Company, Kentucky Power

Company, Murray Energy Corporation, National

Mining Association, National Rural Electric

Cooperative Association, Public Service Company of

Oklahoma, Southwestern Electric Power Company,

Westmoreland Mining Holdings LLC, Wheeling Power

Company, Basin Electric Power Cooperative, Phil

Bryant, Governor of the State of Mississippi, Georgia

Power Company, Indiana Energy Association, Indiana

Utility Group, Mississippi Public Service Commission,

Nevada Gold Mines LLC, Nevada Gold Energy LLC,

Powersouth Energy Cooperative, the States of

Alabama, Alaska, Arkansas, Georgia, Indiana,

Kansas, Kentucky, by and through Governor Matthew

*

During the pendency of the proceedings below, the

Administrator of the EPA was Andrew Wheeler. The current

officeholder is Michael Regan, who is automatically substituted

as a party.

iii

G. Bevin, Louisiana, Missouri, Montana, Nebraska,

North Dakota, Ohio, Oklahoma, South Carolina,

South Dakota, Texas, Utah, West Virginia, and

Wyoming.

No. 19-1179: Petitioner was The North American

Coal Corporation (Petitioner here).

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1165: Petitioners were the States of New

York, California, Colorado, Connecticut, Delaware,

Hawaii, Illinois, Maine, Maryland, Minnesota, New

Jersey, New Mexico, North Carolina, Oregon, Rhode

Island, Vermont, Washington, Wisconsin, District of

Columbia, Commonwealths of Massachusetts,

Pennsylvania, and Virginia, People of the State of

Michigan, City of Boulder, City of Chicago, City of Los

iv

Angeles, City of New York, City of Philadelphia, and

City of South Miami.

No. 19-1166:

Petitioners

were

Appalachian

Mountain Club, Center for Biological Diversity, Clean

Air Council, Clean Wisconsin, Conservation Law

Foundation,

Environmental

Defense

Fund,

Environmental Law and Policy Center, Minnesota

Center for Environmental Advocacy, Natural

Resources Defense Council, and Sierra Club.

Intervenors for respondents were: Indiana Energy

Association and Indiana Utility Group.

No. 19-1173: Petitioner

Foundation, Inc.

was

Chesapeake

Bay

Intervenors for respondents were: International

Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers and Helpers, AFL-CIO,

International Brotherhood of Electrical Workers,

AFL-CIO, and United Mine Workers of America, AFLCIO.

No. 19-1175:

Petitioners

were

Robinson

Enterprises, Inc., Nuckles Oil Company, Inc., doing

business as Merit Oil Company, Construction

Industry Air Quality Coalition, Liberty Packing

Company, LLC, Dalton Trucking, Inc., Norman R.

Brown, Joanne Brown, Competitive Enterprise

Institute, and Texas Public Policy Foundation.

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

v

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1176: Petitioner was Westmoreland Mining

Holdings LLC.

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., City and

County of Denver Colorado, City of Boulder, City of

Chicago, City of Los Angeles, City of New York, City

of Philadelphia, City of South Miami, Clean Air

Council, Clean Wisconsin, Conservation Law

Foundation, District of Columbia, Environmental

Defense Fund, Environmental Law and Policy Center,

Minnesota Center for Environmental Advocacy,

Natural Resources Defense Council, Sierra Club, the

Commonwealths of Massachusetts, Pennsylvania, and

Virginia, and the States of California, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Maine,

Maryland, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon,

Rhode Island, Vermont, and Washington.

No. 19-1177: Petitioner was City and County of

Denver Colorado.

vi

No. 19-1185: Petitioner was Biogenic CO2 Coalition.

Intervenors for respondents were: American Lung

Association, American Public Health Association,

Appalachian Mountain Club, Center for Biological

Diversity, Chesapeake Bay Foundation, Inc., Clean

Air Council, Clean Wisconsin, Conservation Law

Foundation,

Environmental

Defense

Fund,

Environmental Law and Policy Center, Minnesota

Center for Environmental Advocacy, Natural

Resources Defense Council, and Sierra Club.

No. 19-1186: Petitioner was Advanced Energy

Economy.

No. 19-1187: Petitioners were American Clean

Power Association and Solar Energy Industries

Association.

No. 19-1188: Petitioners were Consolidated Edison,

Inc., Exelon Corporation, National Grid USA, New

York Power Authority, Power Companies Climate

Coalition,

Public

Service

Enterprise

Group

Incorporated, and Sacramento Municipal Utility

District.

Pursuant to Supreme Court Rule 29.6, The North

American Coal Corporation is a wholly-owned

subsidiary of NACCO Industries, Inc.

NACCO

Industries, Inc., is a publicly-traded corporation that

owns more than 10% of the stock of The North

American Coal Corporation. No other publicly-held

corporation owns more than 10% of the stock of The

North American Coal Corporation.

vii

STATEMENT OF RELATED CASES

American Lung Association and American Public

Health Association v. EPA, et al., No. 19-1140,

consolidated with Nos. 19-1165, 19-1166, 19-1173, 191175, 19-1176, 19-1177, 19-1179, 19-1185, 19-1186,

19-1187, 19-1188 (D.C. Cir. 2021).

viii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT ........ ii

STATEMENT OF RELATED CASES ..................... vii

TABLE OF AUTHORITIES ....................................... x

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

PROVISIONS INVOLVED ........................................ 3

STATEMENT ............................................................. 4

A.

Statutory Background ................................ 4

B.

The Clean Power Plan ................................ 6

C.

This Court Stays the Clean

Power Plan .................................................. 9

D.

The Affordable Clean Energy Rule .......... 10

E.

Procedural History ................................... 11

REASONS FOR GRANTING THE PETITION....... 13

I.

THIS ISSUE IS IMMENSELY IMPORTANT AND

WORTHY OF THIS COURT’S ATTENTION .............. 15

A.

This Court Has Already Recognized

That The EPA’s Claimed Authority

Warrants Certiorari ................................. 16

ix

TABLE OF CONTENTS

(continued)

Page

II.

B.

Under The Decision Below, The

EPA Has Staggering, Virtually

Unfettered Power To Overhaul

Entire Industries ...................................... 18

C.

Any Further Delay Would Cause

Years Of Intolerable Regulatory

Uncertainty ............................................... 22

THE D.C. CIRCUIT ERRED IN UNTETHERING

PERFORMANCE STANDARDS FROM THE

EXISTING SOURCE BEING REGULATED ............... 23

A.

The Statutory Text Requires The

EPA To Base Its Standards On

Limits Achievable By and

Applicable To Existing Sources ............... 24

B.

Interpretive Canons Confirm

That The EPA Cannot Base Its

Standards On An Exogenous

Industry-Wide Scheme ............................. 29

CONCLUSION ......................................................... 34

APPENDIX A: Opinion of the United States

Court of Appeals for the District of

Columbia Circuit (Jan. 19, 2021) ..................... 1a

APPENDIX B: Statutory Provision ..................... 204a

x

TABLE OF AUTHORITIES

Page(s)

CASES

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ................................................ 4

Ark. Elec. Coop. Corp. v. Ark. Pub.

Serv. Comm’n,

461 U.S. 375 (1983) .............................................. 32

Bond v. United States,

572 U.S. 844 (2014) .............................................. 32

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) ................................................ 4

FDA v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) .................................. 21, 28, 30

Gonzales v. Oregon,

546 U.S. 243 (2006) .............................................. 30

Gundy v. United States,

139 S. Ct. 2116 (2019) .................................... 21, 30

Indianapolis Power & Light Co. v. EPA,

58 F.3d 643 (D.C. Cir. 1995) ................................ 29

King v. Burwell,

576 U.S. 473 (2015) .............................................. 32

Maryland v. King,

567 U.S. 1301 (2012) ...................................... 10, 16

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................ 6

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

Mexichem Fluor, Inc. v. EPA,

866 F.3d 451 (D.C. Cir. 2017) .............................. 29

Michigan v. EPA,

576 U.S. 743 (2015) ................................................ 4

Nat’l Rev., Inc. v. Mann,

140 S. Ct. 344 (2019) .................................. 3, 14, 15

North Dakota v. Heydinger,

825 F.3d 912 (8th Cir. 2016) ................................ 23

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

Res. Conservation & Dev. Comm’n,

461 U.S. 190 (1983) .............................................. 22

Romag Fasteners, Inc. v. Fossil, Inc.,

140 S. Ct. 1492 (2020) .......................................... 24

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .............................................. 26

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) ............................................ 24

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) .......................................... 29

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) .............................. 30

United States v. Bass,

404 U.S. 336 (1971) .............................................. 33

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ............................ 27, 28, 30, 31

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

West Virginia v. EPA,

136 S. Ct. 1000 (2016) ...................................... 9, 10

STATUTES

28 U.S.C. § 1254 .......................................................... 3

Clean Air Act

42 U.S.C. § 7408 ..................................................... 4

42 U.S.C. § 7409 ..................................................... 4

42 U.S.C. § 7410 ..................................................... 4

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

42 U.S.C. § 7412 ............................................... 4, 12

42 U.S.C. § 7607 ..................................................... 9

42 U.S.C. §§ 7651-7651o ...................................... 29

42 U.S.C. §§ 7671-7671q ...................................... 29

OTHER AUTHORITIES

American Clean Energy and Security Act,

H.R. 2454, 111th Cong. (2009) ............................. 21

American Renewable Energy and Efficiency

Act, H.R. 5301, 113th Cong. (2014) ..................... 21

Biden Harris, The Biden Plan for a

Clean Energy Revolution and

Environmental Justice ......................................... 20

40 C.F.R. § 60.22...................................................... 5, 6

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Carbon Pollution Emission Guidelines

for Existing Stationary Sources:

Electric Utility Generating Units,

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

Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act,

74 Fed. Reg. 66,496 (Dec. 15, 2009) ....................... 6

Environmental Defense Fund,

The Clean Power Plan .......................................... 17

EPA, Regulatory Impact Analysis for the

Clean Power Plan Final Rule

(Oct. 23, 2015) ...................................................... 31

Al Gore, Opinion, The Climate Crisis Is

the Battle of Our Time, and We Can

Win, N.Y. TIMES, Sept. 20, 2019 .......................... 19

Merriam-Webster Online .......................................... 25

National Mining Association, EPA’s

Clean Power Plan: An Economic

Impact Analysis (2015) ........................................ 16

National Resource Defense Council,

Clean Up U.S. Power Plants ................................ 17

NERA Economic Consulting, Potential

Energy Impacts of the EPA Proposed

Clean Power Plan (Oct. 2014) .............................. 16

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

Repeal of the Clean Power Plan; Emission

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)............. 8, 10, 11

Olivia Rosane, Trump’s EPA Signs ‘Deadly’

Clean Power Plan Replacement,

ECOWATCH (June 20, 2019) ................................. 17

Alex Ruppenthal, EPA’s Rollback of Obama

Rule Decried as ‘Dirty Power Plan,’

WTTW NEWS (June 20, 2019) .............................. 17

Save Our Climate Act,

H.R. 3242, 112th Cong. (2011) ............................. 21

Courtney Scobie, Supreme Court Stays

EPA’s Clean Power Plan, AM. BAR

ASS’N PRAC. POINTS (Feb. 17, 2016) ..................... 10

Standards of Performance for Greenhouse

Gas Emissions From New, Modified,

and Reconstructed Stationary Sources:

Electric Utility Generating Units,

80 Fed. Reg. 64,510 (Oct. 23, 2015) ................... 6, 7

Rachel Steffan, Things in Your House That

Cause Global Warming, SFGATE ......................... 20

Joby Warrick, White House Set To Adopt

Sweeping Curbs On Carbon

Pollution, WASH. POST (Aug. 1, 2015) ............ 16, 17

xv

TABLE OF AUTHORITIES

(continued)

Page(s)

Webster’s Third New International

Dictionary of the English Language

Unabridged (2d ed. 1968) ..................................... 18

The White House, Executive Order on

Tackling the Climate Crisis at Home

and Abroad (Jan. 27, 2021).................................. 21

INTRODUCTION

In 2015, the EPA issued its so-called “Clean Power

Plan,” a sweeping command-and-control overhaul of

the nation’s electric power generation grid, based on a

little-used, ancillary provision of the Clean Air Act, 42

U.S.C. § 7411(d). That provision allows the agency to

publish emissions guidelines that govern the creation

of standards of performance “for any existing source”

of air pollution (here, carbon dioxide). The EPA’s longheld understanding of § 7411(d), consistent with its

text and structure, was that it requires the agency to

base those guidelines on “standards of performance”

that could be performed by the existing source, using

technology applicable to that source—e.g., a filter on a

smokestack, or leak-resistant pipes. But in the Clean

Power Plan, the EPA promulgated standards based

instead on a novel, industry-wide national “system” for

reducing carbon dioxide emissions by shifting power

generation away from the existing sources in favor of

other, “cleaner” ones. The EPA’s rule was based on the

concept that existing coal and gas plants could “shift”

their production elsewhere or buy credits from loweremitting sources—and, in effect, demanded just that.

In other words, rather than identify the best available

system to reduce emissions “for any existing source,”

the EPA decided that the best overall “system” of

emissions reduction would be to close the existing

sources or force them to subsidize others.

In response to this unprecedented rule, this Court

took equally unprecedented action, staying the Clean

Power Plan even before the D.C. Circuit reviewed it on

the merits. Soon after, the EPA took this Court’s hint

and went back to the drawing board, so that litigation

never proceeded to the merits.

2

The EPA ultimately repealed the Clean Power Plan

on the grounds that it exceeded statutory authority.

The EPA explained that § 7411(d) directs standards

“for any existing source,” based on the best achievable

“system of emission reduction” that can be applied at

and by that source. But the agency cannot formulate

a “system of emission reduction” for an entire sector as

a whole, demanding that certain electricity providers

“shift” generation elsewhere. The “system,” in short,

must be source-based, not industry-wide. Accordingly,

the EPA instituted a new rule, the Affordable Clean

Energy plan, which based its emissions standards for

coal and gas plants on systems and limits that a coal

or gas plant itself could actually adopt and achieve.

A group of petitioners then challenged the EPA’s

repeal and replacement of the Clean Power Plan. Over

Judge Walker’s dissent, a D.C. Circuit panel (Judges

Millett and Pillard) held that the EPA does have the

authority to refashion the electric generation industry

as a whole. And because the EPA was thus ostensibly

wrong about the extent of its legal authority, the D.C.

Circuit vacated the repeal of the Clean Power Plan as

arbitrary and capricious. So five years after this Court

stayed the Clean Power Plan because it so clearly went

beyond the EPA’s authority, the D.C. Circuit held that

the EPA has precisely that authority, and overturned

the agency’s action foreswearing it.

The issue this Court addressed in its stay order has

thus returned, and it is critically important that the

D.C. Circuit’s damage be undone. This Court already

recognized the gravity of these issues by granting the

extraordinary relief of a stay. The only difference is

that merits review is now ripe, since a lower court has

answered the legal question (wrongly, at that).

3

Nobody contests that these issues have enormous

importance. “Climate change has staked a place at the

very center of this Nation’s public discourse,” with

“[p]oliticians, journalists, academics, and ordinary

Americans discuss[ing] and debat[ing] various aspects

of climate change daily—its causes, extent, urgency,

consequences, and the appropriate policies for

addressing it.” Nat’l Rev., Inc. v. Mann, 140 S. Ct. 344,

348 (2019) (Alito, J., dissenting from denial of

certiorari). Those debates will not be resolved anytime

soon. But what must be resolved as soon as possible is

who has the authority to decide those issues on an

industry-wide scale—Congress or the EPA. The Court

was deprived of the opportunity to definitively resolve

that question in the context of the Clean Power Plan,

but should not miss the opportunity to address it now.

Absent review, these crucial decisions will be made by

unelected agency officials without statutory authority,

as opposed to our elected legislators. This Court

should grant the petition for certiorari and return this

“major question” to Congress, where it belongs.

OPINIONS BELOW

The D.C. Circuit’s panel decision (Pet.App.1a) is

reported at 985 F.3d 914.

JURISDICTION

The D.C. Circuit issued its decision on January 19,

2021. Pet.App.1a. This Court has jurisdiction under

28 U.S.C. § 1254(1).

PROVISIONS INVOLVED

The core statutory provision at issue is 42 U.S.C.

§ 7411(a)-(d), which is printed at Pet.App.204a.

4

STATEMENT

A. Statutory Background.

“The Clean Air Act establishes a series of regulatory

programs to control air pollution from stationary

sources (such as refineries and factories).” Michigan

v. EPA, 576 U.S. 743, 747 (2015). Each program has a

different target and its own regulatory structure.

For instance, the National Ambient Air Quality

Standards program, 42 U.S.C. §§ 7408-7410, requires

the EPA to publish ambient air quality standards for

certain pollutants; the states then implement plans to

ensure compliance with those standards. EPA v. EME

Homer City Generation, L.P., 572 U.S. 489, 498 (2014).

Meanwhile, the National Emissions Standards for

Hazardous Air Pollutants Program, 42 U.S.C. § 7412,

directly regulates “more than 180 specified ‘hazardous

air pollutants.’” Michigan, 576 U.S. at 747.

Sandwiched between those programs is § 7411, at

issue in this case. Entitled “Standards of performance

for new stationary sources,” 42 U.S.C. § 7411, that

provision “directs the EPA ... to list ‘categories of

stationary sources’ that ‘[it believes] ... caus[e], or

contribut[e] significantly to, air pollution.’” Am. Elec.

Power Co. v. Connecticut, 564 U.S. 410, 424 (2011)

(AEP). After listing a category of sources, the EPA

must set rules establishing federal standards of

performance for new sources within that category. 42

U.S.C. § 7411(b)(1)(B). “[N]ew source[s]” are those

that are built after the relevant regulation takes

effect. Id. § 7411(a)(2).

Notwithstanding its title, § 7411 can also apply to

certain existing stationary sources, via § 7411(d), the

provision at issue here. Section 7411(d) can be used to

5

regulate existing sources where neither the relevant

pollutant nor the relevant source is already covered by

the National Ambient Air Quality Standards program

or National Emissions Standards for Hazardous Air

Pollutants Program, respectively. Id. § 7411(d)(1)(A).

It uses a regulatory approach that is sometimes called

“cooperative federalism.” After the EPA publishes

federal “standards of performance” for new sources, it

must “prescribe regulations” that provide for each

state to submit a “plan” that “establishes standards of

performance for any existing source” in that category

(subject to the exclusions noted above). Id. § 7411(d).

A “standard of performance” is defined as a “standard

for emissions of air pollutants which reflects the

degree of emission limitation achievable through the

application of the best system of emission reduction”

that the EPA “determines has been adequately

demonstrated,” while considering cost, environmental

impact, and energy needs. Id. § 7411(a)(1). And an

existing source includes any “building, structure,

facility, or installation which emits or may emit any

air pollutant,” and which is built before the regulation

kicks in. Id. § 7411(a)(3), (6).

In practice, this is a multi-step process. The EPA

first issues an “emission guideline that reflects the

application of the best system of emission reduction

(considering the cost of such reduction) that has been

adequately demonstrated for designated facilities.” 40

C.F.R. § 60.22. States then impose a “standard of

performance” that is based on the achievable emission

reductions identified by the EPA “for any existing

source” in the category. 42 U.S.C. § 7411(d)(1). If a

state fails to impose or enforce a plan, the EPA can do

so directly. Id. § 7411(d)(2).

6

B. The Clean Power Plan.

For many years, the EPA maintained that carbon

dioxide was outside its purview, but that changed with

Massachusetts v. EPA, 549 U.S. 497, 511 (2007). That

decision held that greenhouse gases, such as carbon

dioxide, can be “air pollutants” subject to regulation

under the Clean Air Act. Two years later, the EPA

made an “endangerment finding,” concluding that a

mix of six greenhouse gases emitted by motor vehicles

may “reasonably be anticipated both to endanger

public health and to endanger public welfare.”

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean

Air Act, 74 Fed. Reg. 66,496, 66,497 (Dec. 15, 2009).

Largely on the basis of that finding, the EPA in 2015

published a rule, known as the “Clean Power Plan,”

regulating emission of carbon dioxide from existing

power plants. Carbon Pollution Emission Guidelines

for Existing Stationary Sources: Electric Utility

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

(“CPP”).1 The EPA’s stated “authority for this rule”

was § 7411(d). Id. at 64,710. In the Clean Power Plan,

the EPA set “final emission guidelines” for states to

use in establishing performance standards for existing

power plants. Id. at 64,662; see also 40 C.F.R. § 60.22.

The “guidelines” included “performance rates” for

fossil-fuel-fired plants, derived from what the EPA

identified as the “best system of emission reduction”

for existing plants. CPP, 80 Fed. Reg. at 64,662.

1 The EPA issued a separate rule for new power plants.

See

Standards of Performance for Greenhouse Gas Emissions From

New, Modified, and Reconstructed Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015).

7

The EPA defined that “best system” as comprising

three “building blocks.” Id. at 64,707. The first was

relatively uncontroversial: “[i]mproving heat rate at

affected coal-fired” plants. Id. But the next two

“building blocks” were not technologies or systems

that could be adopted or applied by any given plant;

instead, they were methods of so-called “generation

shifting” across the electricity grid as a whole, meaning

reducing the electricity generated by the source in

favor of more generation from other energy sources.

The first such “method” was moving generation from

(higher emitting) coal-fired plants to (relatively lower

emitting) gas-fired plants. Id. The second was to shift

generation from the gas-fired plants to zero-emission

energy sources like solar or wind power. Id.

Calling those “building blocks” the best achievable

system for emission reductions, the EPA then derived

“subcategory-specific emission performance rates” for

coal- and gas-fired plants. Id. at 64,707, 64,728-29.

Those rates—pounds of carbon dioxide per megawatt

hour of energy—were based on reductions that could

be achieved only by “generation-shifting,” i.e., if the

source scaled back or stopped operating, or if it bought

“credits” from other power sources. Remarkably, the

rates for existing sources were lower than those for

new sources. Compare 80 Fed. Reg. at 64,510, 64,513

with CPP, 80 Fed. Reg. at 64,707. The EPA demanded,

in other words, that existing power plants reduce their

emissions below even the requirements for new plants

(themselves so stringent that new coal-fired plants are

virtually never built, see Standards of Performance for

Greenhouse Gas Emissions From New, Modified, and

Reconstructed Stationary Sources: Electric Utility

Generating Units, 80 Fed. Reg. at 64,526).

8

Under the EPA’s rule, existing power plants would

thus have to rely on tradeable “rate-based emission

credits,” an “integral part” of the EPA’s “analysis” in

determining the best system of emission reduction.

CPP, 80 Fed. Reg. at 64,733-34. That is, the “best

system of emission reduction,” in the EPA’s view, was

akin to a cap-and-trade regime that would necessarily

force certain coal- and gas-fired plants to shut down,

reduce their generation, or subsidize lesser-emitting

power plants. Id. at 64,769-70 (explaining that coal

and gas plants can reduce their emissions by buying

electricity from lower-emitting producers or reducing

their own production, shifting generation elsewhere).

Thus, the EPA recognized that its standards were,

by definition, not based on technology or reductions

that actually could be applied at or achieved by most

existing coal- and gas-fired plants on their own, like

improved efficiency or carbon capture. “Rather, most

of the CO2 controls need to come in the form of ...

replacement of higher emitting generation with loweror zero-emitting generation.” Id. at 64,728; see also,

e.g., id at 64,729 (“[T]he magnitude of emission

reductions included in the proposed rule from

generation shifting is achievable.” (emphasis added)).

Given its narrow scope, the EPA had previously

issued only six rules under § 7411(d). See Repeal of

the Clean Power Plan; Emission Guidelines for

Greenhouse Gas Emissions From Existing Electric

Utility Generating Units; Revisions to Emission

Guidelines Implementing Regulations, 84 Fed. Reg.

32,520, 32,526 & n.63 (July 8, 2019) (“ACE”). Never

had it imposed standards based on emission reduction

measures that were not actually achievable by an

existing source itself. Id. at 32,526 & n.65.

9

The EPA’s textual basis for this new, sweeping

authority was actually the definition subsection of the

Clean Air Act provision, 42 U.S.C. § 7411(a).

Section 7411(d) contemplates setting “standards of

performance for any existing source,” and the

definition of “standard of performance,” id.

§ 7411(a)(1), is where the EPA hung its hat. A

“standard of performance,” as noted above, must

“reflect[] the degree of emission limitation achievable

through the application of the best system of emission

reduction.” Id. In the phrase “best system of emission

reduction,” the EPA believed it had found a concept

“sufficiently broad,” CPP, 80 Fed. Reg. at 64,720, to

include not only the technologies and other systems

that existing sources could adopt, but also “generation

shifting.”

.

The EPA interpreted “system” to

encompass any “set of measures that work together to

reduce emissions,” regardless of whether they could be

used at or achieved by any existing source on its own,

thereby massively expanding the agency’s own power

to address climate change by transforming the

national economy and electricity system. Id.

C. This Court Stays the Clean Power Plan.

Not surprisingly, the Clean Power Plan sparked

immediate challenge. Consistent with the Clean Air

Act’s judicial review provisions, 42 U.S.C. § 7607(b)(1),

a group of states and private parties filed petitions for

review in the D.C. Circuit, seeking to bar enforcement

of the Clean Power Plan. See, e.g., West Virginia v.

EPA, No. 15-1363 (D.C. Cir. Oct. 23, 2015). They also

sought a stay of the CPP in that court, but the court

denied it. Id., Doc. No. 1594951. The challengers then

sought a stay in this Court. See West Virginia v. EPA,

136 S. Ct. 1000 (2016).

10

Reportedly for the first time ever,2 this Court stayed

a regulation before a lower court reviewed it. Id. The

EPA had defended the rule on the merits and also

claimed there was no irreparable harm because it

“does not require sources to begin reducing their CO2

emissions until 2022 at the earliest.” Mem. for Fed.

Resps. in Opp. at 54, West Virginia v. EPA, 136 S. Ct.

1000 (No. 15A773). The Court did not accompany its

order with an opinion, but in granting relief a majority

of Justices necessarily concluded that there was at

least: “(1) ‘a reasonable probability’ that th[e] Court

w[ould] grant certiorari, (2) ‘a fair prospect’ that the

Court w[ould] then reverse the decision below, and (3)

‘a likelihood that irreparable harm [will] result from

the denial of a stay.’” Maryland v. King, 567 U.S.

1301, 1302 (2012) (Roberts, C.J., in chambers).

D. The Affordable Clean Energy Rule.

In the wake of the stay, the EPA chose to reassess

its position, and the litigation “was held in abeyance

and ultimately dismissed.” Pet.App.36a. Rather than

continue to defend the Clean Power Plan, the EPA

took this Court’s hint and replaced it.

In its 2019 Affordable Clean Energy rule, the EPA

explained that the prior rule “read the statutory term

‘best system of emission reduction’ so broadly as to

encompass measures the EPA had never before

envisioned in promulgating performance standards

under [§ 7411].” ACE, 84 Fed. Reg. at 32,523. “This

was the first time the EPA interpreted the [best

system of emission reduction] to authorize measures

wholly outside a particular source.” Id. at 32,526.

2 Courtney Scobie, Supreme Court Stays EPA’s Clean Power

Plan, AM. BAR ASS’N PRAC. POINTS (Feb. 17, 2016).

11

The EPA now concluded that the statute would not

bear this interpretation. For one, the text was clear:

“Congress expressly limited the universe of systems of

emission reduction from which the EPA may choose ...

to those systems whose ‘application’ to an ‘existing

source’ will yield an ‘achievable’ ‘degree of emission

limitation.’” Id. at 32,524. For another, the EPA also

“believe[d] that [the major questions] doctrine should

apply … and that its application confirm[ed]” a narrow

reading. Id. at 32,529. After all, “[a]t the time the

CPP was promulgated, its generation-shifting scheme

was projected to have billions of dollars of impact,” it

“would have affected every electricity customer (i.e.,

all Americans),” and “would have disturbed the statefederal and intra-federal jurisdictional scheme.” Id.

Such vast power cannot be inferred without a clearer

statement vesting it in the agency. See id.

The EPA thus “conclude[d] that the interpretation

relied upon in the CPP ignored or misinterpreted

critical statutory elements and rules of statutory

construction,” and repealed it. Id. at 32,527. In its

place, the EPA issued standards and limits that could

be applied at and achieved by a source itself.

E. Procedural History.

Numerous states, activist groups, and industry

participants challenged various aspects of the rule in

the D.C. Circuit. Most objected to repeal of the Clean

Power Plan, arguing that § 7411 does provide the EPA

with authority to require generation-shifting, ergo the

repeal was unlawful because it was premised on an

erroneous, narrower view. Petitioner here, The North

American Coal Corporation, was also a party below,

but supported repeal of the Clean Power Plan.

12

The D.C. Circuit agreed with the challengers. The

per curiam majority—Judges Millett and Pillard—

believed the statutory phrase “best system of emission

reduction” could be interpreted broadly to include

source-category-wide systems, as opposed to systems

applicable to particular existing sources. Pet.App.56a58a. And the court also rejected reliance on the major

questions doctrine, concluding it did not apply because

regulation of greenhouse gases was in “the EPA’s

wheelhouse.” Pet.App.85a. The court dismissed, too,

the need for a clear statement to support the intrusion

on state authority, holding that “federalism concerns”

are not implicated by merely “incidental effects” on

areas of traditional state power.

Pet.App.104a.

Incredibly, the majority did not so much as mention

this Court’s stay of the Clean Power Plan.

Judge Walker dissented. “Hardly any party in this

case,” he observed, “makes a serious and sustained

argument that § [7411(d)] includes a clear statement

unambiguously authorizing the EPA to consider offsite solutions like generation shifting.” Pet.App.165a

(Walker, J., dissenting). “And because the rule

implicates ‘decisions of vast economic and political

significance,’ Congress’s failure to clearly authorize

the rule means the EPA lacked the authority to

promulgate it.” Id. He would have upheld the repeal.3

After the decision, the EPA sought and secured a

stay of the mandate so that the agency could consider

a new plan consistent with the decision, as the Clean

Power Plan itself had become outdated.

3 He also reasoned that § 7411(d) does not permit regulation

of power plants’ carbon dioxide emissions because the plants are

regulated by § 7412. Pet.App.181a (Walker, J., dissenting).

13

REASONS FOR GRANTING THE PETITION

The EPA’s longstanding construction of § 7411(d)—

abandoned only briefly to prop up the revolutionary

Clean Power Plan—calls on the agency to undertake a

source-level inquiry into what emissions reductions

are “achievable” by that source, and then to derive

performance standards from those achievable limits.

Under that commonsense understanding, the EPA can

mandate that gas power plants use the most up-todate equipment to avoid gas leaks, or direct coal plants

use the most up-to-date heat transfer technology to

improve efficiency and reduce emissions. In short, the

EPA can ensure that these existing sources operate as

efficiently as feasible—but it cannot simply ban those

sources or “generation shift” them into obsolescence,

as that would defeat the entire premise of regulating

them as “existing” sources.

By contrast, the D.C. Circuit interpreted the statute

to allow the EPA to impose a “best system of emission

reduction” at an industry-wide level. Under this view,

the EPA need not concern itself with what technology

an existing source could actually use or what emission

reductions it could actually achieve by modernizing or

upgrading its own operations. Instead, the EPA can

pick and choose the sources it prefers—and essentially

regulate the rest out of existence. Indeed, the EPA’s

authority is nearly unlimited: It can impose a carbon

tax, a cap-and-trade regime, or any other systemic

policy it wants—any of these could qualify as the “best

system” as defined by the D.C. Circuit. Section 7411

is thereby effectively transformed from a narrow and

rarely-used means of keeping older facilities up-todate into an open-ended mandate for the EPA to solve

the problem of climate change writ large.

14

Whatever one thinks of the merits, it is impossible

to deny the importance of this statutory dispute—and

that is why this Court’s intervention is warranted.

Indeed, this Court already recognized the weight of

this issue, and its worthiness for plenary review, when

it stayed the Clean Power Plan. Review is even more

urgent now, as the D.C. Circuit has insisted that the

EPA has the very authority and can impose the very

rule this Court stayed—or even further reaching rules.

That decision does not endanger just the Nation’s coal

and gas power plants and electricity supply chain. It

also gives the EPA near-carte-blanche authority to

mandate a national response to climate change, “one

of the most hotly debated issues of the day.” Mann,

140 S. Ct. at 347 (Alito, J., dissenting from denial of

certiorari). Given § 7411’s broad definition of a

“source,” the EPA could impose a carbon tax on

emissions from any building, demand that residential

housing be shunted toward solar power, set up a

complex cap-and-trade system in or across nearly

every industry—all of these would count as “systems”

of emission reduction under the decision below. And

this is hardly fanciful; the EPA will assuredly run with

the power it is given. The Court should clarify the

bounds of that power now, not wait for an inevitable

emergency motion to stay Clean Power Plan 2.0, which

promises to be more revolutionary than the original.

Review is all the more urgent because the lower

court’s interpretation is deeply wrong. The court went

out of its way to find ambiguity in a text that has none.

Section 7411 allows the EPA to direct states to impose

a “standard for emissions” that is “achievable” through

“application” of the “best system of emission

reduction” “for” “any existing source.” On its face, this

15

language requires the “best system” to be achievable

by and applicable to the existing source—it does not

allow the EPA to declare it “best” to reshape the

industry by shifting generation from coal plants to

wind farms. Statutory context and structure confirm

the point. And were any doubt remaining, the major

questions doctrine and federalism clear statement rule

each demand that the court favor a narrower reading

of § 7411 over one that grants sweeping powers to the

EPA in an area of traditional state concern.

None of this is to deny that regulating greenhouse

gases is a serious issue that may require some difficult

choices. But the Court should grant the petition to

ensure these economy-shaking trade-offs are made by

Congress, as our Constitution contemplates.

I.

THIS ISSUE IS IMMENSELY IMPORTANT

WORTHY OF THIS COURT’S ATTENTION.

AND

This Court has already decided that this issue is

unusually important, as it granted a stay of the Clean

Power Plan in 2016 when faced with the exact same

question. Indeed, in an area where there is little

common ground, everyone agrees that this issue is

important. The power industry is most directly in the

crosshairs of this particular rule, but the significance

of the legal question extends beyond any one industry.

The D.C. Circuit’s decision grants vast, legislative-like

power to the EPA to address “one of the most hotly

debated issues of the day.” Mann, 140 S. Ct. at 347

(Alito, J., dissenting from denial of certiorari). Until

that ruling is affirmed or reversed, every industry

linked to global warming (i.e., all of them) will be left

in limbo. The Court should rectify that untenable

situation now that it finally has opportunity to do so.

16

A. This Court Has Already Recognized That

The EPA’s Claimed Authority Warrants

Certiorari.

It is hardly necessary to explain why the legal issue

in this case is important enough to deserve this Court’s

attention, because the Court already implicitly agreed

by staying the Clean Power Plan. That order signified

that a majority of the Court believed that certiorari on

this issue would likely be granted. See King, 567 U.S.

at 1302 (Roberts, C.J., in chambers).

And it is easy to see why. “All sides agree that the

[Clean Power Plan], if it stands, could substantially

alter the U.S. energy landscape,” and fundamentally

“change the way millions of Americans get their

electricity.” Joby Warrick, White House Set To Adopt

Sweeping Curbs On Carbon Pollution, WASH. POST

(Aug. 1, 2015). Industry studies predicted hundreds of

billions of dollars in compliance costs.4 And those costs

would end up hitting consumers, who would pay “an

additional $214 billion for electricity between 2022

and 2030.”5 Projections showed that 46 states stood to

face “double digit increases in wholesale electricity

cost [if] the CPP is fully implemented in 2030, with 16

states projected to experience a 25+ percent increase.”6

4

See, e.g., NERA Economic Consulting, Potential Energy

Impacts of the EPA Proposed Clean Power Plan, at 21 (Oct. 2014),

http://www.globalwarming.org/wpcontent/uploads/2014/10/NERA_ACCCE-CPP-Report_Final-Oct16-20141.pdf.

5 National Mining Association, EPA’s Clean Power Plan: An

Economic Impact Analysis, at 4 (2015), http://nma.org/wpcontent/uploads/2017/02/11.13.15-NMA_EPAs-Clean-PowerPlan-An-Economic-Impact-Analysis.pdf.

6 Id.

17

Thousands or tens of thousands of jobs would have

been lost. See, e.g., Mot. of Util. & Allied Pet’rs for

Stay of Rule, Att. C, Am. Coal. for Clean Coal Elec., A

Survey of Near-Term Damages Associated with the

EPA’s Clean Power Plan at 36 (Oct. 16, 2015), Util. Air

Regul. Grp. v. EPA, No. 15-1370 (D.C. Cir. Oct. 23,

2015), Doc. 1580014.

For their part, environmental advocates disputed

the effect of the Clean Power Plan, but not its scale or

significance. President Obama called it “the biggest,

most important step we’ve ever taken to combat

climate change.” Warrick, supra. The National

Resources Defense Council—one petitioner below—

celebrated the “first-ever national limits on carbon

pollution from power plants,”7 and the Environmental

Defense Fund cheered the regulation as of “historic”

consequence.8

Unsurprisingly, environmentalists

later decried the EPA’s replacement plan as “deadly,”9

calling it the “Dirty Power Plan.”10

Simply put, all sides agree that the EPA’s authority

to “generation-shift” under § 7411(d) is important and

historic, even if they have wildly differing views on

whether doing so is catastrophic or redemptive.

7 National Resource Defense Council, Clean Up U.S. Power

Plants, https://www.nrdc.org/issues/clean-us-power-plants.

8

Environmental Defense Fund, The Clean Power Plan,

https://www.edf.org/clean-power-plan-resources.

9 Olivia Rosane, Trump’s EPA Signs ‘Deadly’ Clean Power

Plan Replacement, ECOWATCH (June 20, 2019).

10 Alex Ruppenthal, EPA’s Rollback of Obama Rule Decried as

‘Dirty Power Plan,’ WTTW NEWS (June 20, 2019).

18

B. Under The Decision Below, The EPA Has

Staggering, Virtually Unfettered Power

To Overhaul Entire Industries.

Of course, the Clean Power Plan itself is now a relic;

its timeline and schedules are years out of date, and it

is unlikely that President Biden’s EPA would revive it

in identical form. That is why the EPA sought and

secured a stay of the mandate below—to come up with

a new approach using the power newly conferred upon

it. But the legal issue transcends any particular rule

and remains exceedingly important going forward. If

the EPA has the power the D.C. Circuit says it has, it

could (and will) issue similarly broad regulations

again, not only for power plants, but for potentially

any industry. The decision below was a virtual call to

arms, empowering the EPA to circumvent Congress

and “solve” climate change on a systemic basis.

Denying review here would implicitly applaud that

mandate, and allow it to stand as the definitive

pronouncement on EPA authority.

1. In promulgating standards of performance, the

EPA must determine the “best system of emission

reduction.” 42 U.S.C. § 7411(a)(1). The D.C. Circuit

held that the “ordinary meaning” of “system” was so

broad as to have no meaningful limits. Pet.App.56a58a. Indeed, the panel used those very words: “no

limits.” Pet.App.56a. In its view, the EPA can impose

any requirements as long as they are “‘diverse parts

subject to a common plan or serving a common

purpose.’”

Pet.App.56a-57a (quoting System,

Webster’s Third New International Dictionary of the

English Language Unabridged 2322 (2d ed. 1968)).

19

Under that extraordinarily broad understanding,

the economic and political significance of this case does

not stop with a potential takeover of the electrical grid.

Power plants are far from the only “stationary source”

of greenhouse gases like carbon dioxide; every building

that emits the gases, including residential homes and

every commercial facility, is also subject to regulation

under § 7411(d). And if the EPA can adopt any

“common plan” to reduce their emissions, nothing

would constrain its authority to cap emissions across

sectors, demand that certain sources shut down in

favor of others, mandate cap-and-trade regimes across

categories of sources, or take any number of other

imaginable courses of action that seek to reduce

greenhouse gas emissions systemically on a national

and industrial basis. If the agency is not limited to

source-level and source-achievable systems, the next

Clean Power Plan could be the “Green New Deal”—

without need for a single vote in Congress.

In a bid to downplay that risk, the D.C. Circuit tried

to suggest that the EPA’s authority was indeed limited

because the statute requires it to take into account

“cost” and “energy requirements” in defining the best

system of emission reduction. Pet.App.87a-88a. But

the statute does not even hint at a limitation on agency

discretion in balancing those incommensurate and

competing factors, and no court could second-guess

how it does so. Moreover, many people believe climate

change portends “catastrophic, civilization-ending

consequences.”11 What economic “cost” or energy need

could possibly outweigh that?

11 Al Gore, Opinion, The Climate Crisis Is the Battle of Our

Time, and We Can Win, N.Y. TIMES, Sept. 20, 2019.

20

Even less credible is the notion that the EPA “tied

its own hands” by limiting the “best system” to those

that affect only “supply-side activities.” Pet.App.91a

& n.9. As that formulation recognizes, the D.C.

Circuit’s interpretation would—absent voluntary

hand-tying—allow the agency to regulate “demandside” activities too. Meaning the EPA could base its

standards for existing residential homes on, e.g., the

emission reductions achievable by keeping the home’s

thermostat higher in the summer and lower in the

winter, or by engaging in composting.12 States would

be effectively locked into mandating those policies. Or,

more along the lines of the Clean Power Plan, the EPA

could require residential homes to install solar panels

or buy emissions credits from houses that do. It could

demand that residential activities be “shifted” from

older, higher emitting homes to newer, lower emitting

homes. Put simply, the D.C. Circuit’s rule is so broad

that the EPA could effectively rewrite local zoning and

building codes, if it so chose.

2. It would be naive to think that the EPA will not

push the envelope of this new authority. President

Biden campaigned on the idea that “climate change

poses an existential threat” and has called for a “Clean

Energy Revolution,” which is not a phrase suggesting

modest ambitions.13 In a recent executive order, the

President proclaimed that the world faces “a profound

climate crisis,” with only a “narrow moment to pursue

12 Rachel Steffan, Things in Your House That Cause Global

Warming, SFGATE, https://homeguides.sfgate.com/things-housecause-global-warming-78827.html.

13 Biden Harris, The Biden Plan for a Clean Energy Revolution

and Environmental Justice, https://joebiden.com/climate-plan/.

21

action at home and abroad in order to avoid the most

catastrophic impacts of that crisis.”14 If the decision

below is left to stand, the EPA will grasp that “narrow

moment” and effectuate the promised “Revolution.”

The legislative branch, meanwhile, will be sidelined

as proponents of radical action sit back and let the

EPA impose their preferences by fiat, sparing them

political downside. Cf. Gundy v. United States, 139 S.

Ct. 2116, 2135 (2019) (Gorsuch, J., dissenting) (noting

that legislators often “face rational incentives to pass

problems to the executive branch”). Again, this is not

mere speculation. “Congress considered and rejected

bills that would have” produced similar (even less-farreaching) schemes. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 144 (2000). Congress did

not enact the American Clean Energy and Security

Act, H.R. 2454, 111th Cong. (2009), which would have

created a cap-and-trade regime to limit greenhouse

gases and imposed renewable energy mandates on

retail electricity providers. Congress likewise failed to

pass the Save Our Climate Act, H.R. 3242, 112th

Cong. (2011), which would have imposed an excise tax

based on the amount of carbon dioxide produced by

burning fossil fuels. Nor did Congress adopt the

American Renewable Energy and Efficiency Act, H.R.

5301, 113th Cong. (2014), which sought to cut carbon

emissions by imposing a complex renewable energy

credit scheme on retail electricity suppliers. See also

Pet.App.169a n.19 (Walker, J., dissenting).

No

matter: Per the decision below, the EPA can do all of

this and more—unilaterally.

14 The White House, Executive Order on Tackling the Climate

Crisis at Home and Abroad (Jan. 27, 2021).

22

In short, if the D.C. Circuit is wrong, Congress has

been wrongly shut out of a hugely controversial and

consequential policy debate. The EPA will be the last

word on climate change—until this Court decides

whether the EPA actually is the last word on climate

change. That is a question worth answering.

C. Any Further Delay Would Cause Years Of

Intolerable Regulatory Uncertainty.

Respondents will presumably urge the Court to kick

the can down the road until the EPA determines how

to exercise its newfound authority. That would be a

mistake. For more than five years, this issue has pingponged between the EPA and D.C. Circuit, leaving the

industry in regulatory limbo. The EPA first asserted

a new, unprecedented authority—then reversed itself.

This Court indicated in its stay order that the EPA

likely has no such authority—but now the D.C. Circuit

has published a binding opinion saying it does. Power

plants and their suppliers—not to mention everyone

else with a stake in electricity generation—need to

know whether they are inevitably facing a massive,

agency-driven upheaval.

This Court has recognized that industrial actors,

especially those in the electrical utility chain, have to

make decisions years in advance. Pac. Gas & Elec. Co.

v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 201-02 (1983). Unless this Court intervenes,

Petitioner and other suppliers, as well as power plants

and the states that regulate them, will have to make

decisions involving “millions of dollars over a number

of years, without any certainty” as to the environment

they will face. Id. “Delaying judicial resolution would

force” actors “to gamble millions of dollars on an

23

uncertain legal foundation.”

North Dakota v.

Heydinger, 825 F.3d 912, 918 (8th Cir. 2016); see also,

e.g., Mot. of Util. & Allied Pet’rs for Stay of Rule at 15,

Util. Air Regul. Grp. v. EPA, No. 15-1370 (D.C. Cir.

Oct. 23, 2015), Doc. 1580014 (explaining that “electric

sector is a long lead-time industry,” and building new

units can take up to “seventeen years”). The chilling

effect on development is palpable.

And the situation is worse than uncertain; the only

controlling legal authority right now is wrong. Infra

Part II. This issue evaded review for six years, and if

the Court declines to grant review now, it will evade

review for the foreseeable future, while the decision

below is used to justify even more radical next steps.

Meanwhile, industries face existential uncertainty as

to whether the EPA really holds command-and-control

authority over every carbon-emitting building (i.e., all

of them). This Court should weigh in now.

II. THE D.C. CIRCUIT ERRED IN UNTETHERING

PERFORMANCE STANDARDS FROM THE EXISTING

SOURCE BEING REGULATED.

Review is warranted in this case whether or not the

D.C. Circuit got the result right; the question is so

important that this Court should answer it. But the

lower court did err. It interpreted § 7411(d) to allow

the EPA to impose an emissions standard based on a

“system” of shuttering or diminishing certain sources

and shifting electric generation to other sources. The

text does not support that counterintuitive reading,

which would confer extraordinary authority on the

EPA to restructure every carbon-emitting industry in

the country. That is not what Congress did, much less

clearly did, and this Court should hold as much.

24

A. The Statutory Text Requires The EPA To

Base Its Standards On Limits Achievable

By and Applicable To Existing Sources.

As always, the analysis “start[s] with the statutory

text.” Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020). It

provides for the EPA to prescribe regulations that

result in state-established “standards of performance

for any existing source.” 42 U.S.C. § 7411(d). Even on

its face, that language all but demands standards that

are applicable to and achievable by such a source, not

those derived from a national system-wide rejiggering

of an entire industry. The context and structure of the

statute then drive that conclusion home.

1. To start, the provision requires standards of

performance “for any existing source,” singular. If

Congress wanted standards derived from systems that

operate across multiple sources or entire categories of

sources, it could have said that. Indeed, Congress

could have used a phrase like “category of sources”

(which it used numerous times elsewhere in § 7411) to

show that standards should be derived from, applied

to, and achievable by the category of sources viewed as

a whole. See, e.g., Romag Fasteners, Inc. v. Fossil, Inc.,

140 S. Ct. 1492, 1495 (2020) (refusing to “read into

statutes words that aren’t there,” especially “when

Congress ... included the term in question elsewhere

in the very same statutory provision”).

Congress also explicitly provided that the standards

are “for” the “existing source”—not “for” the “owner or

operator” of the source, which is a separate defined

term in § 7411(a)(5). If Congress wanted to authorize

generation-shifting or emission-credit trading, it could

have regulated owners or operators (who can comply

25

with such regimes by buying credits or operating new

plants), as opposed to sources (which are physical

structures that produce power). The EPA confessed to

this misalignment of terms in the Clean Power Plan,

when it admitted its standards were based on systems

that must be “implemented[,] … as a practical matter,

by actions taken by the owners or operators.” CPP, 80

Fed. Reg. at 64,720; id. at 64,731 (explaining that

source “owner/operator” can “invest” in lesser-emitting

sources or “purchase” the “CO2-reducing” credits).

Further, the provision refers to an “existing source.”

That presupposes that the source will continue to exist

and operate. Devising a standard based on shifting

the source’s generation elsewhere, thus rendering it

obsolete, defeats the purpose of separately and more

leniently regulating “existing” sources as such. And it

is wholly implausible to believe Congress intended for

the EPA to exercise more rigorous control over existing

sources than new ones. See supra at 7.

Moving on, Congress used the phrase “standard of

performance,” which implies that the existing source

can, in fact, “perform” under the standard.15 But no

such performance at the source-level is needed under

the D.C. Circuit’s reading. Rather, it is permissible to

impose generation-shifting, which is premised on the

idea that sources will diminish production, shut down

entirely, or purchase credits from other sources. A

source that diminishes capacity or shuts down is not

“performing” anything. So here, too, § 7411(d)’s scope

is properly read as limited to measures “perform[able]”

15

See, e.g., Merriam-Webster Online, Performance (“the

execution of an action,” “something accomplished”), https://

www.merriam-webster.com/dictionary/performance.

26

by a source. To be sure, “standard of performance” is

itself a defined term, as discussed below, but the term

itself retains meaning. See, e.g., Solid Waste Agency of

N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S.

159, 171-72 (2001) (although defined by the statute,

“navigable waters” retains meaning).

2. Digging deeper, the statutory definitions of the

various phrases in § 7411(d) confirm that the EPA’s

authority is limited to defining emissions standards

achievable by a given source through modifications to

that source’s technology or systems.

To start, inserting the definition of “source” into the

operative provision leaves it requiring a “standard[] of

performance for any existing [building, structure,

facility, or installation].” 42 U.S.C. § 7411(a)(2), (3),

(6), (d). That emphasizes the individualized, concrete

nature of what is being regulated: the unitary source.

The standard of performance is not “for” an industry

or a category of buildings or even, as noted above, “for”

owners and operators. It is “for” an existing “building,

structure, facility, or installation.”

The definition of “standard of performance” likewise

supports a narrower reading, even though it is this

definition upon which the Clean Power Plan and D.C.

Circuit heavily relied. A “standard of performance” is

a standard “which reflects the degree of emission

limitation achievable through the application of the

best system of emission reduction.” Id. § 7411(a)(1).

The D.C. Circuit believed that this concept—“the best

system of emission reduction”—was so broad that it

allowed a “standard of performance” to be derived from

a macro-analysis of an entire industry, an aggregate

industry-wide “system.” Pet.App.56a-58a.

27

But reading that definitional provision in isolation,

as the lower court did, makes no sense. The degree of

emission reduction must be “achievable” by what? The

best system of emission reduction must be “appli[ed]”

to whom? These phrases are meaningless without

some referent, and the only reference offered by the

text is the “source.” Plus, even if the definition in the

abstract could support the D.C. Circuit’s reading,

“where [a defined] term … appears in the [Clean Air]

Act’s operative provisions,” this Court has held that it

must often be “given” a “narrower, context-appropriate

meaning.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,

316 (2014) (“UARG”); see also id. at 320 (a defined

term “‘may take on distinct characters from

association with distinct statutory objects’”).

Read in context, the definition actually clarifies the

limited reach of § 7411(d). Substituting in defined

terms, the provision directs “a standard for emissions

of air pollutants which reflects the degree of emission

limitation achievable through the application of the

best system of emission reduction for any building,

structure, facility or installation.” A definition that on

its own lacked key terms fits into § 7411(d) like a

glove. Construed with that context, the statute makes

clear that the “best system of emission reduction”—the

benchmark the EPA must provide—is “for” a given

“facility.” There is no way to read this phrase as

providing authority for category-wide emission credit

regimes or “generation shifting” schemes. Those are

by definition not “best system[s] of emission reduction”

“for” an “existing source” that cannot use them (and

indeed might have to shut down entirely). Thus, far

from burnishing the Clean Power Plan interpretation,

the definitional provisions refute it.

28

3. Context and structure confirm this plain reading

of the text. To start, the D.C. Circuit’s alternative,

broader reading would create an untenable structural

problem. As noted above, if interpreted to allow the

EPA to promulgate industry-wide “systems,” there is

little limit to what the EPA could demand. See supra

Part I.B. Cf. UARG, 573 U.S. at 310 (recognizing that

treating greenhouse gases as air pollutants would

sweep in “numerous small sources not previously

regulated”). The EPA could impose a cap-and-trade

regime on virtually the entire country at once, and

§ 7411(d) would become an open-ended mandate for

the agency to solve climate change.

That § 7411 lacks anything remotely addressing

this issue reaffirms that it does not create this issue in

the first place. Cf. Brown & Williamson, 529 U.S. at

126 (“Such authority is inconsistent with the intent

that Congress has expressed in … overall regulatory

scheme.”). Indeed, if § 7411(d) truly provided such

broad authority, the EPA would likely have to “exclude

greenhouse gases from the class of regulable air

pollutants” altogether, because “their inclusion would

be inconsistent with the statutory scheme.” UARG,

573 U.S. at 319.

Moreover, that § 7411 is bifurcated into two distinct

schemes—one for new sources and one for existing

sources—confirms that the EPA’s authority cannot

extend to industry-wide regulations that effectively

ban existing sources. See also supra at 25. Congress

was aware that existing sources implicate reliance

interests and therefore must be approached differently

than new sources. But that is only true if the existing

sources continue to exist. If Congress intended to grant

the EPA the authority to restructure industries, ban

29

sources, favor others, and generally pick and choose

which sources would continue operating, there would

be no reason to separate new and existing sources.

Moreover, Congress’s other Clean Air Act programs

also undermine any reading that would grant the EPA

power to institute industry-wide “systems” like capand-trade regimes. In Title IV, 42 U.S.C. §§ 76517651o, and Title VI, 42 U.S.C. §§ 7671-7671q, of the

Clean Air Act, Congress specifically provided for the

sort of detailed, industry-wide systems that the Clean

Power Plan tried to impose on power plants. Title IV

(aimed at acid rain) sets out emission caps for entire

categories and a trading program for credits. See

generally Indianapolis Power & Light Co. v. EPA, 58

F.3d 643, 644 (D.C. Cir. 1995). Title VI directed the

EPA to phase out certain ozone-depleting substances.

See generally Mexichem Fluor, Inc. v. EPA, 866 F.3d

451, 454 (D.C. Cir. 2017). The Clean Power Plan’s

“reliance” on a suddenly discovered “delegation of ...

authority” in § 7411(d) “is especially questionable

here, given that Congress has used express language

in other” parts of the same statute to grant the EPA

the type of authority it believes it uncovered in

§ 7411(d). U.S. Forest Serv. v. Cowpasture River Pres.

Ass’n, 140 S. Ct. 1837, 1850 (2020).

B. Interpretive Canons Confirm That The

EPA Cannot Base Its Standards On An

Exogenous Industry-Wide Scheme.

Even if the text left a hint that § 7411(d) could be

interpreted more broadly, at least two canons of

construction confirm that it cannot be interpreted as

the D.C. Circuit construed it. Congress would need to

speak more clearly to effectuate that extreme result.

30

Major Questions Doctrine. Most obviously, the

panel’s reading of § 7411(d) is “unreasonable because

it would bring about an enormous and transformative

expansion in EPA’s regulatory authority without clear

congressional authorization.” UARG, 573 U.S. at 324.

That canon has become known as the “‘major

questions’ doctrine.” Gundy, 139 S. Ct. at 2141

(Gorsuch, J., dissenting). Certain questions hold such

economic or political resonance that it is implausible

to read an ambiguous law as having delegated them to

an agency. This is a corollary of the teaching that

“Congress … does not … hide elephants in

mouseholes.” Gonzales v. Oregon, 546 U.S. 243, 267

(2006). Interpretation must instead “be guided to a

degree by common sense as to the manner in which

Congress is likely to delegate a policy decision of …

economic and political magnitude to an administrative

agency.” Brown & Williamson, 529 U.S. at 133; see

also U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 420

(D.C. Cir. 2017) (Kavanaugh, J., dissenting from

denial of rehearing en banc) (“[T]he Supreme Court

has repeatedly rejected agency attempts to take major

regulatory action without clear congressional

authorization.”).

The D.C. Circuit’s interpretation would authorize

precisely the “transformative expansion” in regulatory

power that this Court has rejected in the past—even

where the statutory text seemed closer. In UARG, for

instance, the question was “whether EPA permissibly

determined that a source may be subject to [certain]

permitting requirements on the sole basis of the

source’s potential to emit greenhouse gases.” 573 U.S.

at 314. The statutory basis for that action was

textually plausible: The EPA argued that the “general,

31

Act-wide definition of ‘air pollutant’ includes

greenhouse gases; the Act requires permits for major

emitters of ‘any air pollutant’; therefore, the Act

requires permits for major emitters of greenhouse

gases.” Id. at 316. But this Court still rejected that

reading because it threatened to “overthrow” the

statutory design. Id. at 321. The Court pointed to the

rule’s draconian effects: “[D]ecade-long delays ... would

become common.” Id. at 322. “The number of sources

required to have [Title V] permits would jump from

fewer than 15,000 to about 6.1 million; annual

administrative costs would balloon from $62 million to

$21 billion; and collectively the newly covered sources

would face permitting costs of $147 billion.” Id.

Expressing skepticism about the agency’s claim that it

“discover[ed] in a long-extant statute” an “unheralded

power to regulate ‘a significant portion of the

American economy,’” the Court reasoned that it would

“expect Congress to speak clearly if it wishe[d] to

assign to an agency decisions of vast ‘economic and

political significance.’” Id. at 323-24.

The power that the Clean Power Plan purported to

have “discover[ed]” in § 7411(d)—and that the court

below claimed to see too—is even more “vast” than in

UARG, id., with even greater “economic and political

significance,” id., yet is based on statutory text even

less capable of bearing it. As shown, the Clean Power

Plan alone would have engendered billions (or even

hundreds of billions) in compliance costs and price

hikes, as well as tens of thousands of lost jobs.16 It

triggered 4.3 million public comments. CPP, 80 Fed.

16 See supra at 16-17 & nn.4-10; see also EPA, Regulatory

Impact Analysis for the Clean Power Plan Final Rule, 3-21, 3-22,

tbl.3-8, tbl.6-5 (Oct. 23, 2015).

32

Reg. at 64,663. All of this in a substantive area—

regulation of the nation’s electrical grid—where the

EPA has little or no expertise. See King v. Burwell,

576 U.S. 473, 474 (2015). And those are not the limits

of the EPA’s authority under the decision below—only

the starting point for a climate “Revolution.”

If nothing else, Congress did not clearly grant such

expansive power to the EPA in an ancillary provision

that went virtually unused for five decades.

Federalism Clear Statement Rule. Reflecting

similar concerns is the “well-established principle that

‘it is incumbent upon the federal courts to be certain

of Congress’ intent before finding that federal law

overrides’ the ‘usual constitutional balance of federal

and state powers.’” Bond v. United States, 572 U.S.

844, 858 (2014). To ensure that certainty, this Court

requires a “clear statement” from Congress that it

meant to extend vague “federal statutes” into areas of

“traditional state responsibility.” Id.

“[T]he regulation of utilities is one of the most

important of the functions traditionally associated

with the police power of the States.” Ark. Elec. Coop.

Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 377

(1983). The Clean Power Plan, however, would have

consigned states to a minimal role in regulating

electricity, and the D.C. Circuit decision blesses that

wholesale transfer of regulatory power to the EPA.

The mix of energy sources would become largely a

question of EPA fiat, instead of reflecting state and

local preference. Electricity prices, relative utilization

at individual sources, and nearly everything else that

is important about electrical generation would become

subject to the EPA’s effective control via § 7411(d).

33

One would expect that if Congress intended to hand

over control of the industry to the EPA, it would make

itself clear, but Congress did no such thing. Properly

read, § 7411 does no more than allow the EPA to

require the best systems of emission reduction that

individual sources can actually use. This does little to

intrude on utility regulation. But the very purpose of

“generation shifting” is to reorganize the entire power

industry. By way of analogy, it is as if the EPA moved

beyond setting vehicle emissions standards and began

directing traffic, banning SUVs, mandating subway

construction, and rearranging roads—all in putative

service of reducing emissions. Nothing in § 7411

comes close to establishing that Congress authorized

that kind of federal intrusion on state authority.

The “requirement of [a] clear statement assures

that the legislature has in fact faced, and intended to

bring into issue, the critical matters involved in the

judicial decision.” United States v. Bass, 404 U.S. 336,

349 (1971). Section 7411(d) makes clear the opposite;

it is totally implausible that Congress, when it enacted

this obscure and narrow provision decades ago,

thought it was nationalizing regulation of the

electrical grid.

*

*

*

The question presented is critically important to the

parties and industries in this case, it is the crucial

underpinning of any future regulation that the EPA

says it will pursue, and the only binding decision on

offer is wrong. The Court should grant review and

confirm that the EPA does not have authority under

§ 7411 to remake entire industries.

34

CONCLUSION

This Court should grant the petition.

APRIL 2021

Respectfully submitted,

CHARLES T. WEHLAND

JONES DAY

77 W Wacker Dr.

Chicago, IL 60601

YAAKOV M. ROTH

Counsel of Record

STEPHEN J. PETRANY

JONES DAY

51 Louisiana Ave., NW

Washington, D.C.

(202) 879-3939

yroth@jonesday.com

JEFFERY D. UBERSAX

KUSHNER & HAMED CO.

1375 E. Ninth St., Ste. 1930

Cleveland, OH 44114

Counsel for Petitioners