Petition for Writ of Certiorari — Westmoreland Mining Holdings LLC, Petitioner v. Environmental Protection Agency, et al.

Supreme Court briefJun 18, 2021

Ask Donna

What actually matters in this document.

Text

No. _____

IN THE

Supreme Court of the United States

___________

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

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

United States Court of Appeals

for the District of Columbia Circuit

___________

PETITION FOR WRIT OF CERTIORARI

___________

MARTIN T. BOOHER

JOSHUA T. WILSON

BAKER & HOSTETLER LLP

2000 Key Tower

127 Public Square

Cleveland, Ohio 44114

(216) 621-0200

MARK W. DELAQUIL

ANDREW M. GROSSMAN

Counsel of Record

BAKER & HOSTETLER LLP

1050 Connecticut Ave.,

N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

QUESTIONS PRESENTED

Clean Air Act Section 111(d), 42 U.S.C. § 7411(d),

authorizes EPA to impose standards of performance

for existing sources’ emission of certain pollutants. In

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

410, 424 (2011), this Court endorsed EPA’s longstanding view that it may not apply Section 111(d) to

sources that are already regulated under the Act’s

stringent Section 112 “hazardous air pollutants” program. Nonetheless, EPA promulgated its “Clean

Power Plan” to impose carbon dioxide emission limits

under Section 111(d) on coal-fired power plants that

are already regulated under Section 112. “[O]ne of the

most consequential rules ever proposed by an administrative agency,” Pet.App.172a, the Clean Power

Plan would fundamentally transform the U.S. energy

system by “shifting” generation from fossil-fuel-fired

plants to other sources of electricity. After EPA repealed the Clean Power Plan as ultra vires, the D.C.

Circuit vacated that action on the ground that Section

111(d) effectively places “no limits” on EPA.

Accordingly, the questions presented are:

Whether EPA may employ 42 U.S.C. § 7411(d)

to impose standards of performance on existing stationary sources that are regulated under the “hazardous air pollutants” program of 42 U.S.C. § 7412.

2. Whether 42 U.S.C. § 7411(d) clearly authorizes

EPA to decide such matters of vast economic and political significance as whether and how to restructure

the nation’s energy system.

PARTIES TO THE PROCEEDING

AND RULE 29.6 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 Com-

* During the pendency of the proceedings below, the Administra-

tor of the EPA was Andrew Wheeler. The current officeholder is

Michael Regan, who is automatically substituted as a party.

iii

mission, 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 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

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 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 was Chesapeake Bay Foundation, Inc.

Intervenors for respondents were International

Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers and Helpers, AFL-CIO, International Brotherhood of Electrical Workers, AFLCIO, 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 Council, Clean Wisconsin, Conservation Law Foundation,

District of Columbia, Environmental Defense Fund,

Environmental Law and Policy Center, Minnesota

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 (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

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.

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

vii

York Power Authority, Power Companies Climate Coalition, Public Service Enterprise Group Incorporated, and Sacramento Municipal Utility District.

Pursuant to Supreme Court Rule 29.6, Petitioner

provides the following disclosure statement: Westmoreland Mining Holdings LLC (“Westmoreland”)

has an extensive portfolio of coal mining operations in

the United States and Canada. Westmoreland has no

parent corporation and no publicly held corporation

owns 10% or more of its stock.

viii

STATEMENT OF RELATED PROCEEDINGS

American Lung Ass’n & American Public Health

Ass’n v. EPA, et al., No. 19-1140, consolidated with

Nos. 19-1165, 19-1166, 19-1173, 19-1175, 19-1176, 191177, 19-1179, 19-1185, 19-1186, 19-1187, 19-1188

(D.C. Cir. 2021).

West Virginia, et. al. v. EPA, et al., No. 20-1530 (petition for a writ of certiorari filed Apr. 29, 2021).

North American Coal Corp. v. EPA, et al., No. 201531 (petition for a writ of certiorari filed Apr. 30,

2021).

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 5

STATUTES INVOLVED ............................................ 6

STATEMENT OF THE CASE ................................... 6

Statutory Background .................................... 6

II.

Regulatory Background ............................... 11

III. Proceedings Below ......................................... 17

REASONS FOR GRANTING THE PETITION ...... 20

The Petition Presents Recurring

Issues of Vast Importance that

Require Prompt Resolution by This

Court .............................................................. 20

II.

The Decision Below Is Wrong ...................... 26

A. Coal Power Plants Cannot Be

Regulated Under Section 111(d)(1)

So Long As EPA Regulates Them

Under Section 112 .................................... 27

B. EPA Lacks Authority to

Restructure the U.S. Energy

System Under Section 111(d) .................. 32

CONCLUSION ......................................................... 39

TABLE OF APPENDICES

Appendix A: Opinion of the United

States Court of Appeals for the District

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

Appendix B: 42 U.S.C. § 7411 ....................... 203a

Appendix C: 42 U.S.C. § 7411 (1988) ............ 209a

Appendix D: 42 U.S.C. § 7412 ....................... 215a

Appendix E: Clean Air Act

Amendments of 1990, Pub. Law 101549, 104 Stat. 2465 ........................................ 222a

TABLE OF AUTHORITIES

CASES

Am. Elec. Power Co. v. Connecticut,

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

BP p.l.c. v. Mayor and City Council of Balt.,

141 S. Ct. 1532 (2021) ........................................... 30

Chamber of Com. v. U.S. Dep’t of Labor,

885 F.3d 360 (5th Cir. 2018) ................................. 23

Engine Mfrs. Ass’n v. EPA,

88 F.3d 1075 (D.C. Cir. 1996) ............................... 32

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................... 33

Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................... 33

Int’l Refugee Assistance Project v. Trump,

883 F.3d 233 (4th Cir. 2018) ................................. 23

Maryland v. King,

567 U.S. 1301 (2012) ............................................. 26

MCI Telecom. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218 (1994) ............................................... 33

Michigan v. EPA,

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

Murray Energy Corp., et al. v. EPA,

577 U.S. 1127 (2016) ............................................. 16

New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) ............................... 27

xii

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

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ............................................... 26

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ........................................... 30

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ......................... 23, 34

Util. Air Regul. Grp. v. EPA,

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

West Virginia v. EPA,

577 U.S. 1126 (2016) ............................................. 16

Whitman v. Am. Trucking Assn’s, Inc.,

531 U.S. 457 (2001) ................................................. 3

STATUTES

28 U.S.C. § 1254 ......................................................... 5

42 U.S.C. § 7408 ..................................................... 7–8

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

42 U.S.C. § 7412 (1988) .............................................. 7

42 U.S.C. § 7412 ............................................... passim

42 U.S.C. § 7602 ....................................................... 36

REGULATIONS

40 C.F.R. Part 60........................................................ 6

40 C.F.R. § 60.30 ........................................................ 6

40 C.F.R. § 60.5472 .................................................... 6

xiii

40 C.F.R. § 60.5855 .................................................. 15

61 Fed. Reg. 9905 (Mar. 12, 1996) ............................. 7

69 Fed. Reg. 4652 (Jan. 30, 2004)............................ 10

70 Fed. Reg. 15,994 (Mar. 29, 2005) ............ 10, 27, 31

77 Fed. Reg. 9304 (Feb. 16, 2012)............................ 11

79 Fed. Reg. 34,830 (June 18, 2014) ........................ 12

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

84 Fed. Reg. 32,520 (July 8, 2019)........................... 16

OTHER AUTHORITIES

136 Cong. Rec. 36007, 36067 (1990) .................... 9–10

American Clean Energy and Security Act,

H.R. 2454, 111th Cong. (2009) ............................. 36

American Renewable Energy and Efficiency

Act, H.R. 5301, 113th Cong. (2014) ...................... 37

Robin Bravender, Obama Attorneys Confident

as Legal “Super Bowl” Kicks Off, E&E News

(Oct. 29, 2015) ......................................................... 3

Timothy Cama & Lydia Wheeler, Supreme

Court Overturns Landmark EPA Air

Pollution Rule, The Hill, June 29, 2015 ................. 4

Clean Air Act Amendments of 1990, H.R.

3030, 101st Cong. §108(d) (1989) ........................... 9

Clean Air Act Amendments of 1990, S. 1630,

101st Cong. §108(f) (as passed by the House

on May 23, 1990) ..................................................... 9

xiv

Clean Air Act Amendments of 1987 (Part 2):

Hearings on S. 300, S. 321, S. 1351, and S.

1384 Before the Subcomm. on Env’t. Prot. of

the S. Comm. on Env’t & Pub. Works, 100th

Cong. (June 19, 1987) ............................................. 9

Clean Air Act Amendments (Part 3): Hearings

Before the Subcomm. On Health & the

Env’t of the H. Comm. on Energy &

Commerce, 101st Cong. (1990) ............................. 31

Coal Industry Application for Stay, Murray

Energy Corp. v. EPA, No. 15A778 (U.S.,

filed Jan. 27, 2016) ................................................ 16

Coral Davenport, Strange Climate Event:

Warmth Toward U.S., N.Y. Times (Dec. 11,

2014) ...................................................................... 12

Energy Policy Implications of the Clean Air

Act Amendments of 1989: Hearings Before

the S. Comm. on Energy & Natural Res.,

101st Cong. (1990) ................................................ 31

EPA, Air Emissions from Municipal Solid

Waste Landfills—Background Information

for Final Standards and Guidelines (Dec.

1995) ...................................................................... 10

EPA’s Clean Power Plan: An Economic Impact

Analysis, Nat’l Mining Ass’n (Nov. 13,

2015) ...................................................................... 15

EPA, CO2 Emission Performance Rate and

Goal Computation Technical Support

Document for CPP Final Rule (Aug. 2015) .......... 14

EPA, Regulatory Impact Analysis for the

Final Mercury and Air Toxics Standards,

EPA-452/R-11-011 (December 2011) ................... 11

EPA, Regulatory Impact Analysis for The

Clean Power Plan Final Rule, (Oct. 23,

2015) ................................................................ 15, 21

EPA Connect, Official Blog of the EPA

Leadership (June 30, 2015) .................................... 5

Executive Order No. 14,008, 86 Fed. Reg.

7619 (Jan. 27, 2021) .............................................. 21

Final Brief of Respondent, New Jersey v. EPA,

No. 05-1097 (D.C. Cir. July 23, 2007), 2007

WL 2155494 .......................................................... 11

Legal Memorandum for Proposed Carbon

Pollution Emission Guidelines for Existing

Electric Utility Generating Units, EPA-HQOAR-2013-0602-0419 (June 18, 2014) ................. 11

Evan Lehmann & Nathanael Massey, Obama

Warns Congress to Act on Climate Change,

or He Will, Scientific American (Feb. 13,

2013) ...................................................................... 22

Gina McCarthy, Senate Environment and

Public Works Committee (July 23, 2014) .............. 4

National Bituminous Coal Group Comments

to Affordable Clean Energy Rule Proposal

Docket ID No. EPA-HQ-OAR-2017-0355

(October 31, 2018) ................................................. 29

xvi

Andrew Rafferty, Obama Unveils Ambitious

Plan to Combat Climate Change, NBC

News (Aug. 3, 2015, 3:05 PM) .............................. 20

Save Our Climate Act, H.R. 3242, 112th Cong.

(2011) ..................................................................... 36

State Petitioners’ Motion for Stay, West

Virginia v. EPA, No. 15-1363 (D.C. Cir. Oct.

23, 2015) .......................................................... 12–13

State Petitioners’ Application for Stay, West

Virginia v. EPA, No. 15A773 (U.S., filed Jan

26, 2016) ................................................................ 16

David Vetter, Biden Commits U.S. To

Halving Greenhouse Gas Emissions By

2030, Forbes (Apr. 22, 2021)........................... 24–25

PETITION FOR WRIT OF CERTIORARI

Did Congress authorize EPA in Clean Air Act Section 111(d) to restructure the U.S. electrical system

and energy industry by mandating that electric generation be “shifted” away from fossil-fuel-fired power

plants and, in particular, coal-fired ones? After nearly

a decade of litigation, including over 15 hours of argument across three court-of-appeals cases, the lack of a

definitive answer to that question has left Congress,

the Executive Branch, and the entire energy industry

in a state of regulatory limbo since EPA first asserted

that authority in 2014.

This Court signaled that the answer is no when it

said as much with respect to coal-fired plants in

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

410, 424 n.7 (2011) (“AEP”), and when it proceeded in

2016 to stay EPA’s exercise of that authority in the

Clean Power Plan. That latter case was dismissed as

moot after the previous administration repealed the

Clean Power Plan in 2019, but then the D.C. Circuit

in the decision below vacated the repeal on the view

that Section 111(d) imposes “no limits on the types of

measures” EPA may implement under that provision.

Pet.App.56a.

Meanwhile, industry has been whipsawed and frustrated in making the long-term decisions and investments necessary to meet the Nation’s energy needs,

Congress has been stymied in crafting energy and climate-change policy by the uncertain legal baseline,

the past two administrations have seen their regulatory efforts go up in smoke, and the States have been

forced to respond to a series of conflicting regulatory

demands merely to ensure that the lights stay on.

Both government and industry need certainty on this

question of indisputably vast economic and political

significance. With the current administration at work

on further regulatory measures reliant on the same

statutory authority, this Court’s intervention is required now to prevent another half-decade or more of

turmoil.

Far from authorizing the extraordinary power that

EPA claims, the Clean Air Act expressly bars it. EPA

relies on a little-used statutory provision, Section

111(d) of the Act. Section 111(d) expressly applies

only to a pollutant “which is not...emitted from a

source category which is regulated under section [112]

of this title.” Pet.App.207a. Coal-fueled power plants

are a “source category” regulated under Section 112.

And “EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are regulated under...the ‘hazardous air pollutants’ program,

§ 7412.” AEP, 564 U.S. at 424 n.7. As recently as 2014,

EPA acknowledged that this is the “literal” application of Section 111(d) and that, “[a]s presented in the

U.S. Code,” the provision “appears by its terms to preclude” regulation of coal-fired power plants under Section 111(d).2 But EPA did so anyway.

2 Legal Memorandum for Proposed Carbon Pollution Emission

Guidelines for Existing Electric Utility Generating Units at 22,

EPA-HQ-OAR- 2013-0602-0419 at 22 (June 18, 2014).

Even if one puts aside that express statutory prohibition, EPA lacks authority to implement the sweeping changes attempted under the CPP and approved

by the court below, because Section 111(d) does not

clearly permit EPA to restructure the Nation’s power

grid and utility industry. This Court’s precedents require clear congressional authorization to support an

agency’s claim of power to make “decisions of vast economic and political significance.” Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 324 (2014) (quotation marks

omitted). If Congress had intended to confer on EPA

the authority to restructure the domestic power sector

through an obscure statutory provision used approximately once per decade, it would have said as much

in the statute. Instead, there is nothing. Congress

does not “hide elephants in mouseholes.” Whitman v.

Am. Trucking Assn’s, Inc., 531 U.S. 457, 468 (2001).

The result of EPA’s attempt to restructure the U.S.

energy system through an obscure Clean Air Act provision and impose a presumptive cap-and-trade system where Congress would not, was predictable: the

“Super Bowl” of climate litigation.3 The D.C. Circuit

heard oral argument on a mandamus suit in April

2016, even before EPA finalized the CPP, then heard

oral argument again after the CPP was finalized. This

Court granted an unprecedented stay of the regulation after receiving briefing raising the same issues

3 Robin Bravender, Obama Attorneys Confident as Legal “Super

Bowl” Kicks Off, E&E News, (Oct. 29, 2015), available at

https://www.eenews.net/stories/1060027150 (last accessed June

15, 2021).

presented in this petition. When the Trump Administration entered office, that litigation was stayed,

with the CPP ultimately being repealed and replaced

by the Affordable Clean Energy (“ACE”) rule. That too

led to litigation culminating in the D.C. Circuit’s decision vacating both the ACE replacement standards

and EPA’s repeal of the CPP. The decision below not

only clears the way (and effectively mandates) that

EPA reenact generation-shifting equivalent to or even

more aggressive than the CPP, but goes so far as to

hold that there are “no limits” on EPA’s power to restructure sectors of the economy. Pet.App.56a.

The time has now come for this Court to finish what

it started when it stayed the CPP, by finding that

EPA lacks the authority to double-regulate coal-fired

power plants after imposing $9.6 billion in costs on

them under Section 112 less than a decade ago and

lacks the power to remake the utility sector. In the

past, overreaching EPA regulations have entrenched

themselves merely by virtue of their existence, with a

prior Administrator boasting that even Supreme

Court review is irrelevant because investments are

made.4 Once the mandate issues on the decision be-

4 On the eve of this Court’s decision in Michigan v. EPA, 579 U.S.

743 (2015), then-EPA Administrator Gina McCarthy boasted

“we think we’re going to win . . . [b]ut even if we don’t, it was

three years ago. Most of them are already in compliance, investments have been made, and we’ll catch up.” Timothy Cama &

Lydia Wheeler, Supreme Court Overturns Landmark EPA Air

Pollution Rule, THEHILL, June 29, 2015. EPA repeated that

low, the same situation will occur here, and subsequent review of the fundamental issues raised in this

petition will be too late for the States, consumers,

communities, businesses, and utilities that depend on

coal and coal-fired power. The Petition should be

granted.

OPINIONS BELOW

The D.C. Circuit’s opinion is reported at 985 F.3d

914 and reproduced at Pet.App.1a.

JURISDICTION

The D.C. Circuit entered judgment on January 19,

2021. Pet.App.1a. On March 19, 2020, this Court extended the deadline to file any petition for a writ of

certiorari due on or after that date to 150 days, and

this Petition is timely under that order. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

view after this Court’s decision. Id.; see also EPA Connect, Official Blog of the EPA Leadership (June 30, 2015) (stating that

Michigan came too late to have meaningful effect because “many

plants ha[d] already installed controls and technologies” demanded by the regulation and “the majority of power plants

[were] already in compliance or well on their way to compliance”)

(available at https://blog.epa.gov/2015/06/30/in-perspective-thesupreme-courts-mercury-and-air-toxics-rule-decision/) (last visited June 17, 2021).

STATUTES INVOLVED

The core provisions at issue, 42 U.S.C. §§ 7411(a)–

(d), 7412(a)–(c), are reproduced at Pet.App.203a,

Pet.App.215a.

STATEMENT OF THE CASE

Statutory Background

Clean Air Act Section 111

Clean Air Act Section 111 was originally enacted in

the Clean Air Act Amendments of 1970 and assumed

its current form in 1990. Consistent with other provisions of the Act, Section 111 distinguishes between

new, modified, and existing sources. New or modified

stationary sources were subject to regulation under

Section 111(b) if the source category “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or

welfare.” 42 U.S.C. § 7411(b)(1). Since its enactment

in 1970, the focus of Section 111 has always been regulation of new sources. EPA has promulgated emission standards for more than 70 such categories, see

40 C.F.R. Part 60, from large industrial facilities like

power plants and oil refineries, to much smaller facilities like installers of residential central heating,

40 C.F.R. § 60.5472, and hospitals’ incineration of infectious waste, 40 C.F.R. § 60.30.

Existing sources may be subjected to regulation under Section 111(d) if the sources belong to a source

category not already regulated under Section 112 and

the regulations concern pollutants from that source

for which air quality criteria have not already been

issued or published in a list under Section 108. Due to

the breadth of these statutory exclusions, Section

111(d) was long a regulatory backwater. For the provision’s first forty years, EPA applied it to a sum total

of “four pollutants from five source categories,” 80

Fed. Reg. 64,703 & n.275 (Oct. 23, 2015). Since Section 111(d) took on its current form in 1990, it has

been used only once. See 61 Fed. Reg. 9905 (Mar. 12,

1996).

Congress Excludes Section 112Regulated Sources from Section

111(d) Regulation

Congress substantially amended the Clean Air Act

in 1990. One of Congress’s focuses was expanding the

“hazardous air pollutants” (“HAPs”) program of Section 112, the Act’s most stringent and burdensome

regulatory provision. Before the 1990 Amendments

(discussed below), Section 112 reached only pollutants that were extremely hazardous to human health

because they “result in an increase in mortality or an

increase in serious irreversible, or incapacitating reversible, illness.” 42 U.S.C. § 7412(a) (1988). Pollutants outside that category were generally regulated

as criteria pollutants through the national ambient

air quality standards program, which set national

standards for air pollutants that “may reasonably be

anticipated to endanger public health or welfare” and

that are present in the ambient air “from numerous

or diverse mobile or stationary sources.” 42 U.S.C.

§ 7408. Section 111(d) was reserved for the rare situation where a pollutant did not fit either of those programs.

The 1990 Amendments greatly expanded the Section 112 program to include pollutants that posed less

serious risks. 42 U.S.C. §§ 7412(a)(7), 7412(b)(1). The

Amendments required EPA to publish a list of source

categories emitting HAPs—as consistent as practicable with the source categories regulated under Section

111—and then promulgate emission standards for

each listed source category. Id. § 7412(d). These

sources would then be subject to the most stringent

and expensive control technology requirements under

the Act—“maximum achievable control technology”

(“MACT”). For new and modified sources, MACT requires the adoption of controls no “less stringent than

the emission control that is achieved in practice by the

best controlled similar source.” Id. § 7412(d)(3). Existing, unmodified sources, in turn, must meet the degree of control achieved by the best performing 12 percent of existing sources (for source categories with 30

or more sources) or the 5 best performing existing

sources (for source categories with 30 or more

sources). Id. § 7412(d)(3)(A)–(B).

In contrast to its expansion of Section 112, Congress

paid little attention to the little-used Section 111(d).

It was, in the words of a lead architect of the 1990 Act,

“some obscure, never-used section of the law.”5 In fact,

the only substantial change Congress made to the

provision was an accommodation of its wholesale revision of Section 112: it barred EPA from applying

Section 111(d) to source categories already subject to

the stringent and comprehensive emission standards

of Section 112.

This so-called “Section 112 Exclusion” was hardwired into the 1990 Amendments as originally proposed by the Administration and was enacted as part

of the House bill.6 Throughout the legislative process—including during conference—various stylistic

adjustments were made to this amendment, without

altering its substance.7 In conference, Senate conferees agreed to the Administration’s proposed amendment as contained in the House bill:

Section 108—Miscellaneous Provisions...

Senate amendment....

5 Clean Air Act Amendments of 1987 (Part 2): Hearings on S.

300, S. 321, S. 1351, and S. 1384 Before the Subcomm. on Env’tl

Prot. of the S. Comm. on Env’t & Pub. Works, 100th Cong. at 13

(June 19, 1987) (Durenberger).

6 Clean Air Act Amendments of 1990, H.R. 3030, 101st Cong.

§108(d) (1989); Clean Air Act Amendments of 1990, S. 1630,

101st Cong. §108(f) (as passed by the House on May 23, 1990).

7 Clean Air Act Amendments of 1990, H.R. 3030, 101st Cong.

§108(d) (1989); Clean Air Act Amendments of 1990, S. 1630,

101st Cong. §108(f) (as passed by the House on May 23, 1990).

House amendment.... [T]he House

amendment contains provisions...for

amending section 111 of the Clean

Air Act relating to new and existing

stationary sources....

Conference agreement. The Senate recedes to the House except...with respect to the requirement regarding

judicial review of reports...and with

respect to transportation planning....

136 Cong. Rec. 36007, 36067 (1990) (emphasis added).

The House provision was then enacted by Congress as

Section 108(g) of the 1990 Amendments, with the subtitle “Regulation of Existing Sources.” Pub. L. 101–

549, §108(g), 104 Stat. 2,399, 2,467 (1990).

The amendment was codified in 42 U.S.C.

§ 7411(d)(1). In relevant part, it prohibits EPA from

imposing “standards for performance for any existing

source for any air pollutant…which is…emitted from

a source category which is regulated under section

7412.”

In the wake of the 1990 Amendments, EPA determined five separate times—across three different administrations—that the literal meaning of this provision bars EPA from applying Section 111(d) to any existing “source category…regulated under section

[1]12.” 70 Fed. Reg. 15,994, 16,031 (Mar. 29, 2005); see

also 69 Fed. Reg. 4652, 4685 (Jan. 30, 2004); EPA, Air

Emissions from Municipal Solid Waste Landfills—

Background Information for Final Standards and

Guidelines at 1-6 (Dec. 1995);8 Final Brief of Respondent, New Jersey v. EPA, No. 05-1097 (D.C. Cir. July

23, 2007), 2007 WL 2155494; Legal Memorandum for

Proposed Carbon Pollution Emission Guidelines at

26, EPA-HQ-OAR-2013-0602-0419 (June 18, 2014).

II. Regulatory Background

EPA Subjects Power Plants to Section

112 Regulation

Also as part of the 1990 Amendments, Congress required EPA to determine whether it was “appropriate

and necessary” to subject power plants to Section

112’s stringent regulatory regime and, upon making

such a finding, to do so. 42 U.S.C. § 7412(n)(1)(A).

EPA issued an affirmative finding in 2000 and then

proceeded to promulgate Section 112 emission standards for coal- and oil-fired power plants in 2012. See

77 Fed. Reg. 9304 (Feb. 16, 2012). Reflecting the stringency of Section 112, EPA projected that these standards would impose annual compliance costs of $9.6

billion.9

8 Available at http://www3.epa.gov/ttn/atw/landfill/bidfl.pdf (last

accessed June 15, 2021).

9 EPA, Regulatory Impact Analysis for the Final Mercury and

Air Toxics Standards, EPA-452/R-11-011, at Table ES-1 (December 2011).

EPA’s Clean Power Plan Subjects

Power Plants to Section 111

Regulation

Two years after regulating coal-fired power plants

under Section 112, EPA proposed the CPP. 79 Fed.

Reg. 34,830 (June 18, 2014). Secretary of State John

Kerry announced that it was intended “to take a

bunch of [coal-fired power plants] out of commission.”

See Coral Davenport, Strange Climate Event: Warmth

Toward U.S., N.Y. Times (Dec. 11, 2014) at A14. The

EPA Administrator testified that the proposal’s objective was to transform the utility sector by forcing a

shift away from coal: “The great thing about this proposal is that it really is an investment opportunity.

This is not about pollution control. It’s about increased efficiency at our plants, no matter where you

want to invest. It’s about investments in renewables

and clean energy.” Gina McCarthy, Senate Environment and Public Works Committee (July 23, 2014).10

EPA finalized the CPP in 2015. 80 Fed. Reg. at

64,662. An Administration “fact sheet” stated that the

CPP was intended to effect an “aggressive transformation” of the electric sector by forcing “transition to

zero-carbon renewable energy sources.” State Petitioners’ Motion for Stay at Ex. B, West Virginia, et al.

Available

https://www.epw.senate.gov/public/index.cfm/2014/7/full-committee-hearing-entitled

-oversight-hearing-epas-proposed-carbon-pollution-standardsfor-existing-power-plants (archived webcast, advance to 1:22:45)

(last accessed June 15, 2021).

v. EPA, et al., No. 15-1363 (D.C. Cir. Oct. 23, 2015),

ECF 1579999 (hereinafter “White House Fact Sheet”).

Before the CPP, EPA had always established emission standards under Section 111(d) that were achievable by individual existing sources, see 80 Fed. Reg.

at 64,703 & n.275 (citing prior Section 111(d) rules),

but because emission controls at individual existing

coal plants could not yield sufficient emission reductions to meet its policy goals, EPA abandoned that approach in favor of restructuring the entire power sector by requiring States to reduce the use of existing

coal-fired power plants in favor of lower-emitting natural gas-fired power plants and renewable resources.

See id.; see also generally id. at 64,717–811.

To achieve this policy objective, EPA devised national “emission performance rates” for coal and gas

power plants based on three so-called “Building

Blocks.” Id. at 64,719–20, 64,752. The first, consistent

with EPA’s historic practice of achieving reductions

through facility-based controls and technology, was

based on improved combustion efficiency at individual coal-fired generating facilities. Id. at 64,745. But,

as EPA explained, that alone would not satisfy EPA’s

emissions-reduction goals. Id. at 64,769. Thus, the

other two Building Blocks were directed not at achieving operational emissions reductions at individual

sources, but at “ensur[ing] that owner/operators of affected steam EGUs as a group would have appropriate incentives not only to improve the steam EGUs’

efficiency but also to reduce generation from those

EGUs consistent with replacement of generation by

low- or zero-emitting EGUs.” Id. at 64,748. To that

end, Building Block 2 was based on displacing existing coal-fired generation with additional generation

from existing natural gas generating facilities. Id. at

64,745–46. And Building Block 3 was based on displacing both existing coal- and gas-fired generation

with large increases in generation from new renewable energy resources like wind and solar. Id. at

64,747–48. The fundamental restructuring of utility

sector reflected in Building Blocks 2 and 3 is what

EPA refers to as “generation shifting.”

Based on these “Building Blocks,” EPA set uniform

“emission performance rates” for existing fossil fuelfired generating facilities based on theoretical carbon

dioxide emission rates at which existing coal- and gasfired plants would have to operate to obtain the emission reductions assumed to be achievable through implementation of the three sector-wide Building

Blocks. See generally EPA, CO2 Emission Performance Rate and Goal Computation Technical Support

Document for CPP Final Rule (Aug. 2015).

EPA recognized that no existing facility could actually meet the CPP’s rates through pollution controls

or operational improvements. 80 Fed. Reg. at 64,754.

In fact, the rates were even stricter than those EPA

considers to be attainable for the “best” available

technology for brand new sources. Compare 80 Fed.

Reg. at 64,510, 64,513 with 80 Fed. Reg. at 64,707.

Instead, EPA attempted to strong-arm states into implementing Section 111(d) through either statewide,

40 C.F.R. § 60.5855(a), or multistate, id. § 60.5855(b),

emission-trading schemes.

EPA’s modeling predicted that the CPP would force

the immediate closure of several dozen coal-fired electric generating units, reduce coal production for

power sector use by 25 percent, and sacrifice thousands of jobs in the electricity, coal, and natural gas

sectors by 2025. EPA, Regulatory Impact Analysis for

The Clean Power Plan Final Rule, 6-25 (Oct. 23,

2015).11 And there is reason to believe that EPA’s projection is a substantial underestimate. Industry modeling demonstrated that the generation shifting mandated by the CPP would lead wholesale electricity’s

costs to rise by $214 billion, displace 40 percent of total coal generation, and cost another $64 billion just

to replace the capacity of the plants shuttered by the

CPP. See EPA’s Clean Power Plan: An Economic Impact Analysis, Nat’l Mining Ass’n, at 2 (Nov. 13, 2015)

(hereinafter “Economic Impact Analysis”).12

Dozens of parties, including 27 States, petitioned

for review of the CPP. After the D.C. Circuit denied

challengers’ request to stay the rule, numerous parties moved this Court for a stay. Their applications

11 Available at https://19january2017snapshot.epa.gov/sites/pro-

duction/files/2015-08/documents/cpp-final-rule-ria.pdf (last accessed June 15, 2021).

Available

http://nma.org/attachments/article/2368/

11.13.15%20NMA_EPAs%20Clean%20Power%20Plan%20%20

An%20Economic%20Impact%20Analysis.pdf. (last accessed

June 16, 2021).

disputed EPA’s authority under Section 111(d), raising the same two arguments presented by this Petition. E.g., Coal Industry Application for Stay, Murray

Energy Corp. v. EPA, No. 15A778 (U.S., filed Jan. 27,

2016); State Petitioners’ Application for Stay, West

Virginia v. EPA, No. 15A773 (U.S., filed Jan 26,

2016). The Court granted the applications and stayed

the CPP pending disposition of the petitions for review in the D.C. Circuit and any petitions for a writ

of certiorari or merits determination. Murray Energy

Corp. v. EPA, 577 U.S. 1127 (2016); West Virginia v.

EPA, 577 U.S. 1126 (2016).

The Affordable Clean Energy Rule

But the D.C. Circuit never decided the case. It sua

sponte ordered the case heard en banc, and the en

banc court heard a full day of argument in 2016. A few

months later, the incoming Administration asked

that the case be stayed pending its reconsideration of

the CPP, and the case was ultimately dismissed as

moot based on EPA’s subsequent actions.

In particular, EPA published the Affordable Clean

Energy, or “ACE,” Rule in July 2019. 84 Fed. Reg.

32,520 (July 8, 2019). The ACE Rule repealed the

CPP, reasoning that it exceeded EPA’s authority under the Clean Air Act because it established emission

standards based on activities that occurred outside

the fence-line of regulated power plants—i.e., Building Blocks 2 and 3. Accordingly, it adopted new performance standards based on emission reductions attainable at existing sources. Id. EPA, however, maintained the position that it has authority to impose

Section 111(d) regulation on facilities that are already

subject to Section 112 regulation. See id. at 32,533.

III. Proceedings Below

Numerous parties petitioned for review of the ACE

Rule. Petitioner here (among the “Coal Petitioners”

identified in the opinion below), petitioned on grounds

that the ACE Rule violated the Section 112 Exclusion.

Petitioner also intervened as a Respondent to support

the repeal of the CPP as unauthorized by the Act. The

vast political and economic consequences of the ACE

Rule drew challenge from all quarters, including 12

different consolidated lawsuits with over 45 parties

including the power generation industry, utilities,

federal, state, and local governmental entities, and a

variety of industry and environmental advocacy

groups and over 175 amici. Briefing exceeded a quarter of a million words, and the oral argument lasted

roughly nine hours.

On January 19, 2021, the panel below issued a split

2-1 decision that vacated the ACE Rule’s standards

and repeal of the CPP, effectively reinstating the

CPP. Pet.App.1a. The majority held that the Clean

Air Act was ambiguous regarding whether Section

111(d) emission standards must be based on the best

system of emission reductions attainable by individual sources, for whole source categories, or even just

“emissions” in general. Pet.App.62a–63a.

Relying on that purported ambiguity, the majority

interpreted EPA’s Section 111(d) authority to extend

beyond that claimed in the CPP. Congress, it held,

“imposed no limits” on EPA’s authority to set methods

for emission reductions for existing sources, as long as

EPA considers “cost, nonair quality health and environmental impact, and energy requirements.”

Pet.App.68a. Further, it indicated that EPA was required to implement generation shifting, because the

administrative record demonstrated that generation

shifting is capable of achieving far greater emission

reductions than controls physically confined at or to

the source. Pet.App.51a. The majority even went so

far as to state that EPA has the authority and perhaps the obligation to impose regulation of demandside activities or offsetting the effects of emissions rather than limiting emissions in the first place. See

Pet.App.90a (stating that the “EPA has tied its own

hands” by considering only measures that “reduce

emissions (rather than, for example, capturing emissions after they are released into the air by planting

trees)”) (emphasis added).

Dissenting, Judge Walker agreed with Petitioner

that “EPA has no authority to regulate coal-fired

power plants under § 111” because they are “already

regulated under § 112, and § 111 excludes from its

scope any power plants regulated under § 112.”

Pet.App.164a. Judge Walker also reasoned that EPA

lacks authority altogether to restructure the utility

sector, let alone to regulate demand and require

planting trees. Pet.App.164a–181a. “Hardly any

party in this case makes a serious and sustained argument that § 111 includes a clear statement unam-

biguously authorizing EPA to consider off-site solutions like generation shifting. And because the rule

implicates ‘decisions of vast economic and political

significance,’ Congress’s failure to clearly authorize

the rule means EPA lacked the authority to promulgate it.” Pet.App.164a. (quoting Util. Air Regul. Grp.,

573 U.S. at 324).

The court below partially stayed the mandate as to

the vacatur of the CPP repeal “until the EPA responds

to the court’s remand in a new rulemaking action.”

Order Granting Partial Stay of Mandate, Am. Lung

Assoc. v. EPA, No. 19-1140 (D.C. Cir. Feb. 22, 2021).

In light of the lower court’s directive to “consider the

question [of section 111(d) regulation] afresh,”

Pet.App.161a, EPA presumably is now considering

whether and how to update the now-obsolete figures

in the CPP and the more stringent measures that the

decision below suggests it is required to implement.

REASONS FOR GRANTING THE PETITION

The Petition Presents Recurring Issues

of Vast Importance that Require Prompt

Resolution by This Court

A. The importance of the questions presented

here cannot be seriously disputed and, in fact, has

been undisputed to date. EPA’s authority to regulate

carbon dioxide from existing fossil-fuel fired power

plants obviously “implicates decisions of vast economic and political significance.” Pet.App.164a

(Walker, J. dissenting) (quotation marks omitted).

How could it not? The CPP embodied EPA’s claim that

it possesses the power to fundamentally reconfigure

the energy sector by “shifting” generation from coalfired power plants to those sources preferred by EPA.

Indeed, then-president Obama hailed the CPP as “the

single most important step America has ever taken in

the fight against global climate change.” Andrew Rafferty, Obama Unveils Ambitious Plan to Combat Climate Change, NBC News (Aug. 3, 2015, 3:05 PM).13

In EPA’s own words, the CPP was intended to effect

through the States an “aggressive transformation” of

the electric sector by systematically forcing “transition to zero-carbon renewable energy sources.” White

House Fact Sheet. Whether Congress actually empowered EPA to take this “single most important

step” and transform an entire sector of the economy is

no minor question.

The consequences of EPA’s claimed authority speak

for themselves. EPA projected that the CPP would

force the imminent closure of dozens of coal-fired

plants, decrease coal production for power-sector use

by a full 25 percent by 2030, and cause a net decrease

of thousands of jobs in the electricity, coal, and natural gas sectors by 2025. EPA, Regulatory Impact Analysis for The Clean Power Plan Final Rule, 6-25 (Oct.

23, 2015).14 Other analyses found that EPA significantly underestimated costs, and that the CPP would

lead to wholesale electricity’s cost to rise by $214 billion, and cost another $64 billion just to replace the

capacity of the plants shuttered by the CPP. Economic

Impact Analysis, supra, at 2.

And all of these figures refer to the CPP that was

promulgated before the court below ruled that EPA

has the discretion or even obligation to regulate electricity demand across the nation and to impose mitigating measures like planting forests. According to

the policy of the current administration, that authority will be deployed to “reduce[] climate pollution in

every sector of the economy.” Executive Order No.

14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021). The CPP,

then, is just the tip of the iceberg.

The consequences of setting a national energy policy designed to destroy a particular industry (coalfired energy) are no less momentous than the eco-

Available at https://www.nbcnews.com/politics/barackobama/obama-unveilsambitious-plan-combat-climate-changen403296 (last accessed June 16, 2021).

14 Available at https://19january2017snapshot.epa.gov/sites/pro-

duction/files/2015-08/documents/cpp-final-rule-ria.pdf (last accessed June 16, 2021).

nomic ramifications. Under the view of EPA’s authority adopted by the court below, Section 111(d) standards subordinate energy diversity, consumer protection, reliability, and other policies in current state dispatch law to the single overarching goal of shifting the

generation of electricity to zero- or low-carbon resources. And the reason EPA proposed regulation of

GHG under Section 111(d) in the first place was specifically that Congress had not authorized such

changes. Evan Lehmann & Nathanael Massey,

Obama Warns Congress to Act on Climate Change, or

He Will, Scientific American (Feb. 13, 2013), (“‘But if

Congress won’t act soon to protect future generations,

I will,’ Obama said. ‘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.’”).15

There are few historical examples of such brazen and

well-documented attempts of the Executive Branch

seeking to arrogate Congress’s legislative power.

This Court’s review is also needed to resolve confusion among the courts of appeals as to the scope and

substance of this Court’s major rules doctrine (or “major questions doctrine”). The court below gave short

shrift to this Court’s admonition against implying authority for rules of vast political and economic significance in the absence of a clear and specific statement

Available at https://www.scientificamerican.com/article/

obama-warnscongress-to-act-on-climate-change-or-he-will/ (last

accessed June 16, 2021).

from Congress, disparaging the “so-called” major

questions doctrine and its lineage of only a “few”

cases. Pet.App.83a. As recently as 2017, the D.C. Circuit has refused to even take a position on “the precise

contours” or even the “existence” of the doctrine, U.S.

Telecom Ass’n v. FCC, 855 F.3d 381, 384 (D.C. Cir.

2017), and other courts have likewise expressed confusion over the scope and status of the doctrine, see,

e.g., Chamber of Com. v. U.S. Dep’t of Labor, 885 F.3d

360, 387–88 (5th Cir. 2018) (recognizing confusion

over “the precise status of a ‘major questions’” doctrine); Int’l Refugee Assistance Project v. Trump, 883

F.3d 233, 328 n.3 (4th Cir. 2018), (Wynn, J., concurring) (“[N]o judicially accepted standard appears to

have emerged for determining when a question is sufficiently ‘major’ to warrant application of the doctrine”) judgment vacated, 138 S. Ct. 2710 (2018). This

Court’s review is needed to provide guidance to the

lower courts as well as agencies now contemplating

rules of vast political and economic import based on

ambiguous grants of authority.

B. The Court’s intervention is needed now. For

nearly a decade, uncertainty over the basic question

of EPA’s authority in this area has hamstrung both

government at every level and industry. The most recent two administrations have seen their signature

climate policies upended by court decisions on the precise issues presented here. Congress, meanwhile, has

been sidelined by the prospect of administrative action by a third, and current, Administration on a politically contentious issue, when it may turn out that

the prospect was illusory all along. And even the Judicial Branch has faced confusion and consternation,

with the D.C. Circuit hearing argument on these issues three separate times to date and this Court entering a stay of a major executive action. States, in

turn, have no ability to plan for their energy needs in

the face of massive regulatory uncertainty and have

wasted untold sums in rushing to comply with

measures, like the CPP and ACE, that may never go

into full force. Meanwhile, industry is stymied in its

ability to make long-term investments in electrical infrastructure, resource projects, and other capital expenditures.

The decision below only exacerbates these problems

by extending and amplifying the uncertainty over

EPA’s authority. By reviving the CPP, while recognizing the need for EPA to revise it, the court below gave

EPA marching orders to continue down the path

blazed by the CPP notwithstanding the real risk that

this Court may ultimately rule against EPA’s assertion of authority to so proceed. Indeed, the new rule is

likely to target an even broader swathe of the economy, based on the view of the decision below that Section 111(d) effectively imposes “no limits” on EPA’s

power and its suggestion that EPA “tied its own

hands” in believing that it was limited to considering

only things that “reduce emissions.” Pet.App.90a. The

current administration has indicated that it will accept that invitation to impose even greater disruption.

See, e.g., David Vetter, Biden Commits U.S. To Halving Greenhouse Gas Emissions By 2030, Forbes (Apr.

22, 2021) (reporting that the Biden Administration intends to implement far greater reductions in emissions than its predecessors).16

The directive of the court below to adopt regulations

consistent with its interpretation of EPA’s Section

111(d) authority as functionally limitless is a powerful reason for prompt review by this Court, not a reason to “stand on the dock and wave goodbye as EPA

embarks on this multiyear voyage of discovery.” Util.

Air Regul. Grp., 573 U.S. at 328. Whatever action

EPA eventually takes under that directive will necessarily be contingent on the decision below remaining

good law despite the strong indications by this Court

that it is not. Absent this Court’s intervention now,

the inevitable result will be another half-decade of uncertainty as EPA undertakes another round of rulemaking, followed by judicial review involving vast litigation across various industries, and, in all likelihood, more rounds of stay and merits proceedings and

potentially review by this Court at the end of it all.

Such delay would force EPA to waste significant time

considering and proposing actions that are outside

the scope of its authority, ultimately delay implementation of regulatory actions which actually would be

within EPA’s authority to implement, and hamstring

industry actions to provide for the nation’s energy

needs, given the hesitancy of investors to commit to

Available at https://www.forbes.com/sites/davidrvetter/2021

/04/22/biden-will-commit-us-to-halving-greenhouse-gas-emissions-by-2030/?sh=20b836dd7f1d (last accessed June 16, 2021).

projects that entail significant regulatory uncertainty, and the “considerable advance planning”

which this Court has recognized is required for the

capital investments necessary to build out new

sources of electricity generation. See Pac. Gas & Elec.

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

461 U.S. 190, 201–02 (1983).

Only this Court can end this turmoil by resolving

the issue once and for all.

II. The Decision Below Is Wrong

When this Court stayed implementation of the CPP

based on the same two arguments presented in this

Petition, it necessarily found “a fair prospect” that one

or both was likely to prevail. Maryland v. King, 567

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

The decision below held to the contrary on the merits.

In so doing, it waved away what Congress stated

clearly, that Section 111(d) does not permit EPA to

impose new performance standards on source categories already subject to the stringent regulatory regime

of Section 112. And it embraced what Congress did

not say at all, that EPA has authority under Section

111(d) to restructure the entire utility sector and regulate based on practically anything that might affect

emissions.

Coal Power Plants Cannot Be

Regulated Under Section 111(d)(1)

So Long as EPA Regulates Them

Under Section 112

At the same time that Congress expanded Section

112’s stringent “hazardous air pollutant” program,

Congress restricted Section 111(d) to bar new standards for source categories already subject to the more

stringent program. As amended, Section 111(d) prohibits EPA from imposing “standards for performance

for any existing source for any air pollutant…which is

not…emitted from a source category which is regulated under section 7412.” Pet.App.207a. For a decade—across three administrations and numerous official publications and statements—EPA acknowledged that the literal reading of this prohibition bars

EPA from regulating under Section 111(d) any existing “source category … regulated under section [1]12.”

70 Fed. Reg. 15,994, 16,031 (Mar. 29, 2005). This

Court also had no trouble in discerning what this language means: “EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are

regulated under…the ‘hazardous air pollutants’ program, § 7412. See § 7411(d)(1).” AEP, 564 U.S. at 424

n.7; see also New Jersey v. EPA, 517 F.3d 574 (D.C.

Cir. 2008) (holding Section 111(d) “cannot be used to

regulate sources listed under section 112.”).

The only thing that changed since then was that

EPA adopted the policy objective of restricting the

carbon-dioxide emissions of a Section 112-regulated

source category, coal-fired power plants. What did not

change, however, was the clear statutory prohibition.

The court below proffered three independent rationales to circumvent that prohibition, none of which

withstands scrutiny.

First, its convoluted textual analysis is indefensible. Contra Pet.App.130a–132a. The court below purported to apply the “last antecedent” rule to ascertain

that the limiting language of Section 111(d)(1)(i) excludes from regulation only the “same pollutants

[that] are already regulated under the NAAQS or

[Section 112],” Pet.App.131a—a complete non sequitur that rests on nothing more than the court’s say-so.

Repeating its error of assuming the result, the court

then reasoned that, because Section 112 regulates

“only [the] emission of hazardous air pollutants,” the

limiting language of Section 111(d)(1)(i) necessarily

excludes only pollutants subject to Section 112, as opposed

Section

112-regulated

sources.

Pet.App.131a–132a. This is less interpretation than

contrivance, wielding a particular view of what Congress should have done to override the language Congress actually enacted. The court’s justification for its

novel interpretation is statutory “context,” but context makes clear that Congress intended to prohibit

sources from being whipsawed in exactly the situation

faced here: EPA imposing stringent emissions standards under Section 112, with billions in compliance

costs, and then socking the same facilities with additional standards and billions more in compliance costs

under Section 111(d).

Confirming its error, the decision below actually interprets the same statutory language in two different

ways. The term “air pollutant” appears only once in

Section 111(d)(1) and is used to define both the scope

of the Exclusion and the scope of the emissions that

may be subject to Section 111(d) standards. It was

nothing more than atextual opportunism for the court

below to hold that the term “air pollutant” extended

beyond HAPs so as to empower EPA to reach carbon

dioxide under Section 111(d), Pet.App.145a, but to restrict the same language to HAPs so as to avoid the

Section 112 Exclusion, id.

Second, the court’s attempt to find discretion-conferring ambiguity in an unexecuted Senate amendment that EPA has admitted was a scrivener’s error

fares no better. Omnibus legislation often includes

conforming amendments to update statutory crossreferences, and the ordinary rule is that such amendments fail to execute when, as here, the cross-reference is itself deleted by another provision.17 Consistent with that ordinary rule and its own consistent

practice, the Office of the Law Revision Counsel understood and codified the 1990 Amendments in precisely that fashion. See 42 U.S.C. § 7411, 1990 Amendments, Subsec. (d)(1)(A)(i) (2012) (explaining that

Senate amendment 302(a) “could not be executed, because of the prior amendment by…§108(g)”). Anyway,

National Bituminous Coal Group Comments to Affordable

Clean Energy Rule Proposal, Docket ID No. EPA-HQ-OAR-20170355, at 34–35 & n.22 (Oct. 31, 2018) (identifying dozens of such

examples).

even executing the Senate amendment would not

change the answer to the statutory question here, as

that amendment does not conflict with the House

amendment’s exclusion of Section 112-regulated

sources. See Pet.App.197a (Walker, J., dissenting).

And even if there were a conflict, “the House Amendment controls” because “the most lucid piece of legislative history says the Senate intended to recede to

the House.” Pet.App.191a (Walker, J., dissenting).

Third and finally, the court below laid its policy

cards on the table in its contention that applying the

Section 112 Exclusion according to its terms would be

a “trojan horse” that would “cripple Section 7411’s correlative function in the statutory scheme” by creating

a regulatory gap that “broadly insulated stationary

sources from regulatory oversight for their non-hazardous but still dangerously polluting emissions.” See

Pet.App.133a–135a. The court’s policy analysis was

obviously misplaced: not “even the most formidable

policy arguments” can “overcome a clear statutory directive” like the Section 112 Exclusion, BP p.l.c. v.

Mayor and City Council of Balt., 141 S. Ct. 1532, 1542

(2021) (cleaned up); see also SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348, 1358–59 (2018) (“[P]olicy considerations cannot create an ambiguity when the words on

the page are clear”).

Far from formidable, the policy argument embraced

by the court below is flat-out wrong. As EPA has

acknowledged, the Section 112 Exclusion reflects

Congress’s considered decision to avoid double-regulation of sources under Section 112 and Section

111(d). 70 Fed. Reg. at 16,031. During the legislative

process that resulted in the 1990 Amendments, this

precise issue arose at a key hearing, and the EPA Assistant Administrator testified that imposing double

regulation of source categories “in seriatim,” even for

different pollutants, would be “ridiculous.”18 The

House, in turn, wrought that sensible view in legislative language. It determined that existing sources,

which have significant capital investments and sunk

costs, should not be burdened by both the expanded

Section 112 program and performance standards under Section 111(d). 70 Fed. Reg. at 16,031–32. The

CPP itself illustrates the wisdom of this approach,

given that it would have imposed tens of billions of

dollars only three years after EPA, in one of its most

expensive regulations ever, promulgated Section 112

standards for the same coal-fired power plants that

the CPP severely burdens.

Interpreting Section 111(d) according to its terms

does not, as the court below asserted, “cripple” the

provision by undermining its gap-filling function. By

its terms, Section 111(d) authorizes regulation of noncriteria emissions from sources that are not regulated

under Section 112. 42 U.S.C. § 7412(c)(3); Id.

18 Energy Policy Implications of the Clean Air Act Amendments

of 1989: Hearings Before the S. Comm. on Energy & Natural

Res., 101st Cong. 7, at 603 (1990); see also Clean Air Act Amendments (Part 3): Hearings Before the Subcomm. On Health & the

Env’t of the H. Comm. on Energy & Commerce, 101st Cong. 356–

58, 470–71 (1990) (expressing concerns about regulating power

plants under Section 112 and the new Title IV acid rain program).

§ 7412(n)(1). The existence of such sources was always envisioned by Congress, including when it authorized EPA to stop listing area sources after reaching 90 percent of area-source emissions of the 30 most

dangerous hazardous pollutants. Id. § 7412(c)(3). In

fact, Congress specifically contemplated that coalfired power plants could have been among those nonSection 112 sources potentially subject to Section

111(d) if EPA had not found that their listing under

Section 112 was appropriate and necessary. Id.

§ 7412(n)(1)(A). Particularly given the minor role of

Section 111(d) to date, any remaining “gap” is not so

“large…in any event” as to be “demonstrably at odds”

with congressional intent because it would not in any

way render “the regulatory scheme” “unworkable or

absurd.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,

1090–93 (D.C. Cir. 1996). Quite the opposite: the Section 112 Exclusion as written makes sound regulatory

sense.

EPA Lacks Authority to Restructure

the U.S. Energy System Under Section

111(d)

In addition to erring concerning the Section 112 Exclusion, the decision below further erred in finding

that EPA was permitted to restructure the U.S. energy system under Section 111(d) based on perceived

ambiguity in the Act.

Under this Court’s precedent, administrative agencies require clear congressional authorization for major agency rules. As Justice Scalia put it clearly in

Utility Air Regulatory Group, “We expect Congress to

speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” 573

U.S. at 324 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). In other words,

while an agency may resolve statutory ambiguity to

issue ordinary rules resolving interstitial matters, the

major rules doctrine prevents an agency from relying

on statutory ambiguity to issue major rules that involve fundamental policy determinations that the

Constitution delegates to Congress.

This is a firmly established doctrine. In a series of

important decisions over the last three decades, this

Court has repeatedly rejected agency attempts to take

major regulatory action without clear congressional

authorization. E.g., MCI Telecom. Corp. v. Am. Tel. &

Tel. Co., 512 U.S. 218, 231 (1994) (striking down an

FCC rule that completely exempted certain telephone

companies from rate-filing requirements, explaining

that it was highly unlikely that Congress would leave

the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency

discretion); Brown & Williamson, 529 U.S. at 160

(striking down an FDA rule regulating the tobacco industry on grounds that despite the FDA’s broad and

general authority under the Food, Drug, and Cosmetic Act to regulate drugs and devices, that Congress did not intend to delegate a decision of such

“economic and political significance” to an agency in

so cryptic a fashion); Gonzales v. Oregon, 546 U.S.

243, 262 (2006) (striking down rule barring physi-

cians from prescribing controlled substances for assisted suicides on grounds that the Controlled Substances Act did not clearly permit the Attorney General to declare an entire class of activity outside the

course of professional practice); Util. Air Regul. Grp.,

573 U.S. at 302 (holding that it was impermissible for

EPA to interpret the Clean Air Act to subject millions

of previously unregulated emitters of carbon dioxide

to Clean Air Act permitting requirements absent Congress “speak[ing] clearly” on the subject).

“The lesson from [this Court’s] cases is apparent. If

an agency wants to exercise expansive regulatory authority over some major social or economic activity —

regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for

example — an ambiguous grant of statutory authority

is not enough. Congress must clearly authorize an

agency to take such a major regulatory action.” U.S.

Telecom Ass’n, 855 F.3d at 422 (Kavanaugh, J., dissenting from the denial of rehearing en banc) (emphasis added).

There may be some cases where the question of the

minor versus major nature of a rule is reasonably disputable. This is not one of them. If what the President

has described as the single most important step

America has ever taken in the fight against global climate change is not “major,” if the transformation of

the U.S. energy sector by shutting down coal power

plans and shifting to energy sources preferred by EPA

is not “major,” if imposing billions of dollars of costs

on the coal industry and the regions of the country

that rely on that industry for providing essential and

reliable base load power and for the wellbeing of their

communities and their citizens is not “major,” then

nothing is major.

Thus, the relevant question is whether these major

policy questions have been answered by Congress and

clearly delegated to EPA to implement. The answer is

clearly “no.”

Judge Walker’s dissent below puts the point crisply:

In its clearest provisions, the Clean

Air Act evinces a political consensus.

For example, according to Massachusetts v. EPA, carbon dioxide is clearly

a pollutant, and the Act’s § 202 unambiguously directs EPA to curb pollution from new cars. 549 U.S. 497, 532–

35 (2007). But for every question regarding carbon dioxide answered in

that case, many more were not even

presented. For example, does the

Clean Air Act force the electric-power

industry to shift from fossil fuels to renewable resources? If so, by how

much? And who will pay for it? Even

if Congress could delegate those decisions, Massachusetts v. EPA does not

say where in the Clean Air Act Congress clearly did so.

Pet.App.166a–67a.

The Clean Air Act—let alone Section 111(d)—answers none of these questions. Section 111(d) limits

EPA to establishing emission guidelines under which

states would apply “standard[s] of performance” to existing sources based on the “best system of emission

reduction” that (1) has been “adequately demonstrated” for the type of “source” to be regulated and

(2) will “assure continuous emission reduction” when

the source is operating. 42 U.S.C. §§ 7411(a)(1),

7602(k), 7602(l). Section 111 further provides that a

standard of performance must be “achievable through

the application of the best system of emission reduction” to an individual “source,” which the CAA defines

as a “building, structure, facility, or installation” that

emits air pollution. Id. § 7411(a)(3). Over the last 45

years, during which EPA has established over 75

“standards of performance” for new and existing

sources under Section 111, all of these performance

standards have been based on technological means of

reducing emissions from a source.

Where these questions have been posed—but never

answered—is in the parade of legislative attempts to

address carbon dioxide. A generation of Members of

Congress have spent their careers considering—some

ending their careers by supporting—bills that would

provide authority for regulation of carbon dioxide and

energy generation shifting. See, e.g., American Clean

Energy and Security Act, H.R. 2454, 111th Cong.

(2009) (a cap-and-trade regime similar to that attempted under the CPP); Save Our Climate Act, H.R.

3242, 112th Cong. (2011) (taxing carbon dioxide from

burning fossil fuels); American Renewable Energy

and Efficiency Act, H.R. 5301, 113th Cong. (2014), (a

renewable energy credit scheme); see also

Pet.App.168a–69a (citing various carbon dioxide-related laws rejected by Congress). The CPP was a brazen attempt to answer a question that Congress has

considered but so far declined to answer itself or delegate to EPA. And the decision below not only placed

its imprimatur on this usurpation of congressional

authority, but also declared that EPA now has “no

limits” on its ability to restructure the economy to enact its climate change goals so long as it considers the

costs of doing so. Allowing EPA to set its own scope of

authority and approach to regulation based on its own

policy preferences will provide a perpetually shifting

target for defining compliance.

This Court’s statement that Section 7411 “speaks

directly to emissions of carbon dioxide” from fossilfuel-fired plants does not counsel a contrary decision.

Contra Pet.App.45a (quoting AEP, 564 U.S. at 424).

Not only did AEP provide that any regulation of carbon dioxide under Section 111(d) was subject to the

Section 112 Exclusion, AEP, 564 U.S. at 424 n.7, but

there was no indication that the Court believed that

EPA would attempt to employ Section 111(d) in the

manner contemplated by the decision below as a

means of restructuring the U.S. electric system, rather than employing the type of achievable carbon dioxide efficiency standards set forth in the now-vacated ACE Rule.

Accordingly, faithful application of this Court’s

precedents presents a simple and independently adequate reason to uphold the ACE rule’s repeal of the

CPP: Congress did not clearly authorize EPA to implement generation-shifting policies under Section

111(d). These are issues of major political and economic importance. Congress has debated generationshifting policies, and greenhouse gas regulations for

many years, but Congress has never enacted such legislation or clearly authorized EPA to impose generation shifting on electric generation providers. The lack

of clear congressional authorization matters, and the

decision below vacating repeal of the CPP and authorizing an even-more-transformative successor is therefore unlawful.

CONCLUSION

The Court should grant the petition.

Respectfully Submitted,

MARTIN T. BOOHER

JOSHUA T. WILSON

BAKERHOSTETLER LLP

2000 Key Tower

127 Public Square

Cleveland, Ohio 44114

(216) 621-0200

MARK W. DELAQUIL

ANDREW M. GROSSMAN

Counsel of Record

BAKERHOSTETLER LLP

1050 Connecticut Ave., NW

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

Counsel for Petitioner

JUNE 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.