Amicus Curiae Brief — The North American Coal Corporation, Petitioner v. Environmental Protection Agency, et al.

Supreme Court briefJun 3, 2021

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No. 20-1531

IN THE

Supreme Court of the United States

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE D.C. CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Counsel for Amicus Curiae

John Pagliaro, Staff Attorney

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street, Unit 6B

Boston, Massachusetts 02111

Telephone: (617) 695-3660

johnpagliaro@nelfonline.org

Dated: June 3, 2021

BATEMAN & SLADE, INC.

STONEHAM , MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF REASONS FOR GRANTING THE

PETITION ................................................................... 2

REASONS FOR GRANTING THE PETITION ......... 2

The Question Presented Is One Of Urgent

National Importance................................... 2

II.

The Decision Of The Circuit Court Is

Wrong .......................................................... 6

CONCLUSION.......................................................... 12

TABLE OF AUTHORITIES

Cases

American Lung Ass’n v. E.P.A.,

985 F.3d 914 (D.C. Cir. 2021) ...................... 5-9

Utility Air Regulatory Group v. E.P.A.,

573 U.S. 302 (2014) ..........................................4

Statutes, Regulations, Etc.

42 U.S.C. §7401...........................................................7

42 U.S.C. §7401(a)(3) ........................................7, 8, 11

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

42 U.S.C. §7411(a)(1) ............................................5, 11

42 U.S.C. §7411(d).............................................passim

40 C.F.R. §60.21(d)....................................................11

42 C.F.R. §60.22 ........................................................11

40 Fed. Reg. 53,340 (Nov. 17, 1975) ..................... 9-11

80 Fed. Reg. 64,662 (Oct. 23, 2015) ....................3, 6, 7

Other

Fact Sheet: President Obama to Announce Historic

Carbon Pollution Standards for Power Plans ............3

Remarks by the President in the State of the Union

Address .................................................................... 3-4

The Promise of the Clean Power Plan: A

Conversation with Gina McCarthy ............................5

iii

INTEREST OF AMICUS CURIAE1

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of corporations, law firms, individuals, and others

who believe in NELF’s mission of promoting

balanced economic growth in New England and the

nation, protecting the free-enterprise system, and

defending individual economic rights and the rights

of private property. In fulfillment of its mission,

NELF has filed numerous amicus briefs in this

Court in a great variety of cases.

NELF appears as an amicus in this case because

NELF believes that it presents an issue of singular

national importance. As set out in the Petition of

the North American Coal Corporation (Pet.), as well

as the petition filed by the State of West Virginia

and others in No. 20-1530, the decision below

sanctions a vast and improper expansion of the

power of the Environmental Protection Agency

(EPA). The decision, drawing deeply from a well of

statutory silence while slighting the plain language

of the actual text, goes beyond the Clean Power Plan

of 2015, which itself amounted to agency overreach

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and no person or entity, other than NELF, made any

monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.2(a), NELF has given

timely 10 day notice to all counsel of record at that time, and

obtained the consent of all counsel of record at that time. On

May 24, 2021 Petitioner filed a blanket consent to the filing of

amicus briefs, and by letter dated May 25, 2021, the Acting

Solicitor General granted her consent.

writ large.

NELF urges this Court to grant

certiorari to correct the circuit court’s decision, so

that the agency’s power may be placed on a sound

statutory footing.

NELF has therefore filed this brief to assist the

Court in deciding whether to grant certiorari in this

important case.

SUMMARY OF REASONS FOR GRANTING

THE PETITION

The decision below would recognize agency

powers extending far beyond those allotted to EPA

by Congress. Those powers would have enormously

disruptive effects on the nation’s economy and on the

allocation of powers between the federal government

and the States. The Executive Branch should not be

permitted to take shortcuts around Congress.

The decision below permits EPA to use a variety

of off-site, non-technological measures to reduce

pollution emissions, although those measure are not

authorized by statute and are in fact prohibited by

statute, as the EPA itself recognized long ago.

REASONS FOR GRANTING THE PETITION

I. The Question Presented Is One Of Urgent

National Importance.

The Court should grant certiorari because

compelling reasons exist to conclude that Congress

did not give EPA the unprecedented powers that

EPA claims and that the circuit court majority has

in effect ratified. If uncorrected, the decision below

will have profound ramifications on the national

economy at the regional, industrial, and consumer

levels, and will disturb both the federal/state balance

and the constitutional delegation of powers. Delay

will only compound the harms. Compliance with the

erroneous decision will be enormously costly and

disruptive, with much of the cost being paid upfront

and unrecoverable if this Court hands down a

decision on these important issues only years from

now.

In 2015 the White House announced the

imminent release of the Clean Power Plan (CPP),

which it hailed as an “historic step in the Obama

Administration’s fight against climate change.” Fact

Sheet: President Obama to Announce Historic

Carbon Pollution Standards for Power Plans (August

3, 2015).2

The announcement declared that,

compared to earlier ways of setting “state targets”

for pollution reduction, the CPP “better reflects the

way the electricity grid works.” Id.

The CPP, embodied in 80 Fed. Reg. 64,662 (Oct.

23, 2015), was the fruit of a challenge President

Obama had made to the Congress two years earlier.

[I]f Congress won’t act soon to protect

future generations [from climate change], I

will. . . . I will direct my Cabinet to come up

with executive actions we can take, now

and in the future, to reduce pollution,

prepare

our

communities

for

the

consequences of climate change, and speed

the transition to more sustainable sources

of energy.

2 Available at https://obamawhitehouse.archives.gov/the-press-

office/2015/08/03/fact-sheet-president-obama-announce-historic

-carbon-pollution-standards%20 (last accessed May 31, 2021).

Remarks by the President in the State of the Union

Address (February 12, 2013).3

Apparently, Congress did not “act soon” enough,

or perhaps Congress did not have to act at all, for in

short order EPA made the discovery that in a modest

subsection of a federal statute Congress had long ago

delegated to it precisely the power the Executive

Branch now wanted.

Only a few years ago this Court wrote of such

opportunistic discoveries:

We are not willing to stand on the dock and

wave goodbye as EPA embarks on this

multiyear voyage of discovery. We reaffirm

the core administrative-law principle that

an agency may not rewrite clear statutory

terms to suit its own sense of how the

statute should operate.

Utility Air Regulatory Group v. E.P.A., 573 U.S. 302,

328 (2014). For the same reason this case is not

about “the way the electricity grid works.” It is

about the way the United States Government works.

As discussed in the Petition at 23-33 and in this

brief, see infra pp. 6-11, the statute in question (42

U.S.C. §7411) cannot serve EPA as a navigational

chart to any point in the compass to which EPA now

wishes to journey. The statute lacks entirely the

clear language needed to delegate to the agency the

broad economic and policy-making powers at stake

in this case. Hence, the decision of circuit court

3 Available at https://obamawhitehouse.archives.gov/the-press-

office/2013/02/12/remarks-president-state-union-address

accessed May 19, 2021).

(last

majority must rely largely on reading the delegation

of broad powers into statutory silence, while ignoring

key words that delimit and particularize the

meaning of the laws as Congress actually wrote

them.

Lacking an accurate textual compass, the

decision

concludes

that

Congress

“always

understood” that the “best system of emission

reduction,” §7411(a)(1), might go beyond the

technology used at the sites of the individual

emission sources and extend to grid-wide economic

regulation. American Lung Ass’n v. E.P.A., 985 F.3d

914, 954 (D.C. Cir. 2021). Nowhere does the circuit

court explain why Congress “always” failed, year

after year for decades, to provide one syllable of

written guidance about how one agency of the

federal government was to manage the huge power

the circuit court now finds was “always” present in

the law. See, e.g., The Promise of the Clean Power

Plan: A Conversation with Gina McCarthy (Aug. 11,

2015) at 3 (CPP creates “markets that EPA will help

manage”).4

In all that time, we are to believe, no state

thought to act through its congressional delegation

to protect its unique regional or economic interests

in light of these expansive agency powers. See, e.g.,

American Lung, 985 F.3d at 998 (noting small states

try to block climate change bills inimical to interests)

(Walker, J., concurring in part, concurring in

judgment in part, and dissenting in part) and

Petition in No. 20-1530 at 22 (states petitioning in

Available at https://hbsp.harvard.edu/product/PH8015-PDFENG (last accessed May 31, 2021). Gina McCarthy was the

head of EPA under President Obama.

companion case to this one). And no industry ever

once sought from Congress any limitation on or even

clarification of the carte blanche that is §7411 as the

circuit court essentially conceives it. See Pet. at 13

(under a plan like CPP “the EPA can pick and choose

the sources it prefers—and essentially regulate the

rest out of existence”). As everywhere else in its

decision, the circuit court appears

entirely

comfortable with this kind of legislative silence too.

This Court should not be.

II. The Decision Of The Circuit Court Is

Wrong.5

The circuit court decided that the words “best

system of emission reduction” allow EPA to make

generation shifting, for example, an “element” of any

such “system,” see 80 Fed. Reg. at 64,745 (“element”

of generation shifting constitutes two of three

“building blocks” for determining best system of

emission reduction). American Lung, 985 F.3d at

944-46. That ruling was error. Petitioner is correct

— the statutes clearly contemplate that emission

reduction should take place at the locus of the

individual emission sources and not be spread out

across the “exceptionally complex, interconnected”

electrical grid, id. at 932, as the circuit court

erroneously held.

5 Amicus concurs with Petitioner’s contention that the decision

below violates both the major questions doctrine and the

federalism clear statement rule. See Pet. at 30-33. In this

portion of its brief in support of Petitioner, Amicus has chosen

to focus on other interpretive errors made by the circuit court

in its reading of the statutes.

Section 7401 sets forth the “Congressional

findings and declaration of purpose” for Subchapter

I, Part A (Air Quality and Emissions Limitations),

under which §7411 is codified in Chapter 85 of Title

42. The expression of congressional intent found in

§7401 is therefore highly relevant to a correct

understanding of §7411.

Among other findings, in §7401 Congress made

specific findings about where and by whom it

believed that emissions should best be controlled. As

to where, it stated that both air pollution prevention

and air pollution control should take place

specifically “at its source”:

The Congress finds—

…

(3) that air pollution prevention (that is,

the reduction or elimination, through any

measures, of the amount of pollutants

produced or created at the source) and air

pollution control at its source is [sic] the

primary responsibility of States and local

governments;

§7401(a)(3).

Especially noteworthy is that, whatever

“measures” may be adopted under Subchapter I,

Congress requires the pollution to be controlled “at

its source.”

Id.

By the circuit court’s own

concession, “at” is “site-specific.” American Lung,

985 F.3d at 950.

This case is about an agency pronouncement

entitled “Carbon Pollution Emission Guidelines.” 80

Fed. Reg. at 64,662. The circuit court’s decision on

the powers claimed in that document cannot be

reconciled with what §7401(a)(3) says about the

“measures” permitted to be taken against pollution

emissions. The circuit court affirms those agency

powers in large part by construing the phrase “best

system of emission reduction” expansively. Using

the same word “measures” found in §7401(a)(3), the

circuit court asserts EPA’s great “degree of leeway in

choice of control measures” used to determine the

“best system” to reduce pollution emissions.

American Lung, 985 F.3d at 942. In the circuit

court’s view, that “leeway” extends to EPA’s being

permitted to choose to base its emission guidelines

on a “system” two of whose “building blocks” involve

off-site generation shifting. Supra p. 6. In other

words, the circuit court reached its conclusion by

sanctioning the use of “control measures” that do

not specifically “control [pollution] at its source,” as

required by §7401(a)(3).

For the same reason, the circuit court was

mistaken when it concluded that “Congress

consistently

avoided

imposing

any

such

technological, at-the-source limitation on the

measures that EPA might include in the ‘best

system’ for reducing emissions from existing-source

categories” under §7411(d). American Lung, 985

F.3d at 954. Section 7401(a)(3), of course, says

otherwise.

The court attempted to bolster its conclusion by

observing that “the regulators closest to the issue

never before saw what the EPA now [i.e., when

defending its repeal of the CPP,] insists is obvious

on the face of Section 7411.” Id. In other words,

according to the court, previous EPA regulators

supposedly never even entertained, much less

actually held, the “myopic[]” view of circumscribed

agency powers asserted by EPA in its recent repeal

of the CPP. See id. But that observation of the

circuit court is wrong too.

At least as long ago as 1975 EPA was on record

as understanding that §7411(d) dealt with exactly

such at-the-source technological measures as the

Petitioner now argues for. In 40 Fed. Reg. 53,340

(November 17, 1975), which deals with “State Plans

for the Control of Certain Pollutants From Existing

Facilities,” EPA discussed the grounds on which it

might approve or disapprove a state plan. 40 Fed.

Reg. at 53,342. In the course of its explanation, it

laid out its understanding of the approach Congress

wanted taken to implementing §7411(d), the

subsection most at issue here.

First, EPA reviewed the legislative history of

§7411(d), which began as a Senate bill intended to

address pollutants which are neither criteria

pollutants nor hazardous pollutants, i.e., they

belonged to the same category of pollutants already

dealt with in §7411. Id. at 53,342. A conference

committee rewrote the Senate bill as part of §7411,

“which in effect requires maximum feasible control

of pollutants from new stationary sources through

technology-based standards.” Id.

From its review EPA drew four conclusions, the

fourth of which is most pertinent here.

(4) Under the circumstances, EPA believes, the

conferees decided (a) that control of such

pollutants on some basis was necessary; (b)

that, given the relative lack of information on

their health and welfare effects, a technologybased approach (similar to that for new sources)

would be more feasible than one involving an

attempt to set standards tied specifically to

protection of health; and (c) that the technology9

based approach (making allowances for the

costs of controlling existing sources) was a

reasonable means of attacking the problem

until more definitive information became

known, particularly because the States would

be free under section 116 of the Act to adopt

more stringent standardse [sic] if they believed

additional control was desirable. In short, EPA

believes the conferees chose to rewrite section

114 [of the Senate bill] as part of [§7411] largely

because they intended the technology-based

approach of that section to extend (making

allowances for the costs of controlling existing

sources) to action under [§7411(d)]. In this view,

it was unnecessary (although it might have

been desirable) to specify explicit substantive

criteria in [§7411(d)] because the intent to

require a technology-based approach could be

inferred from placement of the provision [section

114 of the Senate bill] in [§7411].

Id. (emphasis added).

EPA concluded with the following observations:

Requiring a technology based approach . . .

would not only shift the criteria for decisionmaking to more solid ground (the availability

and costs of control technology) but would also

take advantage of the information and expertise

available to EPA from its assessment of

techniques for the control of the same

pollutants from the same types of sources under

[§7411(b)], as well as its power to compel

submission

information

about

such

techniques under section 114 of the Act (42

U.S.C. 1857c-9).

Id. at 53,343.

Not surprisingly, therefore, in the 1975 amended

regulations found in the same document, EPA

expressly described systems of emission reduction as

being systems applied to the existing sources of

emissions. More specifically, in language distinctly

echoing the description of “the best system” given in

§7411(a)(1), EPA stated that it would issue to the

states “[g]uideline documents” that would provide:

(2) A description of systems of emission

reduction which, in the judgment of the

Administrator,

have

been

adequately

demonstrated.

(3) Information on the degree of emission

reduction which is achievable with each system,

together with information on the costs and

environmental effects of applying each system to

designated [i.e., existing] facilities.

Id. at 53,346 (to be codified as C.F.R. §60.22)

(emphasis added). See also id. at 53,346 (to be

codified as 40 C.F.R. §60.21(d), defining “Designated

facility”).

The wording of 40 C.F.R. §60.22, quoted above,

seems to have been in effect continuously until the

interpretative revolution effected by the Clean

Power Plan in 2015. As such, it remained an abiding

marker of EPA’s 1975 longtime policy that §7411(d)

took a “technology-based approach” to emission

reduction systems, one that is to be applied to

existing emissions sources in situ. It provides an “at

the source” reading which is consistent with the

congressional mandate found in §7401(a)(3) but

inconsistent with the CPP and the circuit court’s

radically expansive views of agency powers.

CONCLUSION

For the reasons given above, this Court should

grant the petition for certiorari.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION,

By its attorneys,

/s/

John Pagliaro