Petition for Writ of Certiorari — Westmoreland Mining Holdings LLC, Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefJun 18, 2021
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APPENDIX
1a
APPENDIX A
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued: October 8, 2020
Decided: January 19, 2021
No. 19-1140
AMERICAN LUNG ASSOCIATION AND AMERICAN PUBLIC
HEALTH ASSOCIATION,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND ANDREW
WHEELER, ADMINISTRATOR,
RESPONDENTS
AEP GENERATING COMPANY, ET AL.,
INTERVENORS
Consolidated with 19-1165, 19-1166, 19-1173,
19-1175, 19-1176, 19-1177, 19-1179, 19-1185,
19-1186, 19-1187, 19-1188
On Petitions for Review of a Final Action
of the Environmental Protection Agency
2a
Steven C. Wu, Deputy Solicitor General, Office of
the Attorney General for the State of New York,
argued the cause for the State and Municipal
petitioners and intervenor Nevada. With him on the
briefs were Letitia James, Attorney General, Barbara
D. Underwood, Solicitor General, Matthew W. Grieco,
Assistant Solicitor General, Michael J. Myers, Senior
Counsel, Andrew G. Frank, Assistant Attorney
General of Counsel, Xavier Becerra, Attorney
General, Office of the Attorney General for the State
of California, Robert W. Byrne, Senior Assistant
Attorney General, David A. Zonana, Supervising
Deputy Attorney General, Jonathan A. Wiener, M.
Elaine Meckenstock, Timothy E. Sullivan, Elizabeth
B. Rumsey, and Theodore A.B. McCombs, Deputy
Attorneys General, William Tong, Attorney General,
Office of the Attorney General for the State of
Connecticut, Matthew I. Levine and Scott N.
Koschwitz, Assistant Attorneys General, Kathleen
Jennings, Attorney General, Office of the Attorney
General for the State of Delaware, Valerie S. Edge,
Deputy Attorney General, Philip J. Weiser, Attorney
General, Office of the Attorney General for the State
of Colorado, Eric R. Olson, Solicitor General, Robyn L.
Wille, Senior Assistant Attorney General, Clare E.
Connors, Attorney General, Office of the Attorney
General for the State of Hawaii, William F. Cooper,
Deputy Attorney General, Aaron M. Frey, Attorney
General, Office of the Attorney General for the State
of Maine, Laura E. Jensen, Assistant Attorney
General, Brian E. Frosh, Attorney General, Office of
the Attorney General for the State of Maryland, John
B. Howard, Jr., Joshua M. Segal, and Steven J.
Goldstein, Special Assistant Attorneys General,
Maura Healey, Attorney General, Office of the
3a
Attorney General for the Commonwealth of
Massachusetts, Melissa A. Hoffer and Christophe
Courchesne, Assistant Attorneys General, Megan M.
Herzog and David S. Frankel, Special Assistant
Attorneys General, Dana Nessel, Attorney General,
Office of the Attorney General for the State of
Michigan, Gillian E. Wener, Assistant Attorney
General, Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Peter N.
Surdo, Special Assistant Attorney General, Aaron D.
Ford, Attorney General, Office of the Attorney
General for the State of Nevada, Heidi Parry Stern,
Solicitor General, Gurbir S. Grewal, Attorney
General, Office of the Attorney General for the State
of New Jersey, Lisa J. Morelli, Deputy Attorney
General, Hector Balderas, Attorney General, Office of
the Attorney General for the State of New Mexico,
Tania Maestas, Chief Deputy Attorney General,
Joshua H. Stein, Attorney General, Office of the
Attorney General for the State of North Carolina,
Asher Spiller, Assistant Attorney General, Ellen F.
Rosenblum, Attorney General, Office of the Attorney
General for the State of Oregon, Paul Garrahan,
Attorney-in-Charge, Steve Novick, Special Assistant
Attorney General, Josh Shapiro, Attorney General,
Office of the Attorney General for the Commonwealth
of Pennsylvania, Ann R. Johnston, Senior Deputy
Attorney General, Aimee D. Thomson, Deputy
Attorney General, Peter F. Neronha, Attorney
General, Office of the Attorney General for the State
of Rhode Island, Gregory S. Schultz, Special Assistant
Attorney General, Thomas J. Donovan, Jr., Attorney
General, Office of the Attorney General for the State
of Vermont, Nicholas F. Persampieri, Assistant
Attorney General, Mark Herring, Attorney General,
4a
Office of the Attorney General for the Commonwealth
of Virginia, Donald D. Anderson, Deputy Attorney
General, Paul Kugelman, Jr., Senior Assistant
Attorney General and Chief, Environmental Section,
Caitlin Colleen Graham O’Dwyer, Assistant Attorney
General, Robert W. Ferguson, Attorney General,
Office of the Attorney General for the State of
Washington, Christopher H. Reitz and Emily C.
Nelson, Assistant Attorneys General, Joshua L. Kaul,
Attorney General, Office of the Attorney General for
the State of Wisconsin, Gabe Johnson-Karp, Assistant
Attorney General, Karl A. Racine, Attorney General,
Office of the Attorney General for the District of
Columbia, Loren L. AliKhan, Solicitor General, Tom
Carr, City Attorney, Office of the City Attorney for the
City of Boulder, Debra S. Kalish, Senior Counsel,
Mark A. Flessner, Corporation Counsel, Office of the
Corporation Counsel for the City of Chicago, Benna
Ruth Solomon, Deputy Corporation Counsel, Jared
Policicchio, Supervising Assistant Corporation
Counsel, Kristin M. Bronson, City Attorney, Office of
the City Attorney for the City and County of Denver,
Lindsay S. Carder and Edward J. Gorman, Assistant
City Attorneys, Michael N. Feuer, City Attorney,
Office of the City Attorney for the City of Los Angeles,
Michael J. Bostrom, Assistant City Attorney, James
E. Johnson, Corporation Counsel, New York City Law
Department, Christopher G. King, Senior Counsel,
Marcel S. Pratt, City Solicitor, City of Philadelphia
Law Department, Scott J. Schwarz and Patrick K.
O’Neill, Divisional Deputy City Solicitors, and
Thomas F. Pepe, City Attorney, City of South Miami.
Morgan A. Costello and Brian M. Lusignan, Assistant
Attorneys General, Office of the Attorney General for
the State of New York, Gavin G. McGabe, Deputy
5a
Attorney General, Anne Minard, Special Assistant
Attorney General, Office of the Attorney General for
the State of New Mexico, Cynthia M. Weisz, Assistant
Attorney General, Office of the Attorney General for
the State of Maryland, entered appearances.
Kevin Poloncarz argued the cause for Power
Company Petitioners. With him on the briefs were
Donald L. Ristow and Jake Levine.
Mark W. DeLaquil argued the cause for Coal
Industry Petitioners. With him on the briefs were
Shay Dvoretzky, Charles T. Wehland, Jeffery D.
Ubersax, Robert D. Cheren, and Andrew Grossman.
Theodore Hadzi-Antich argued the cause for
Robinson Enterprises Petitioners. With him on the
briefs were Robert Henneke and Ryan D. Walters.
Sean H. Donahue and Michael J. Myers argued the
causes for Public Health and Environmental
Petitioners. On the briefs were Ann Brewster Weeks,
James P. Duffy, Susannah L. Weaver, Joanne
Spalding, Andres Restrepo, Vera Pardee, Clare
Lakewood, Howard M. Crystal, Elizabeth Jones,
Brittany E. Wright, Jon A. Mueller, David Doniger,
Benjamin Longstreth, Melissa J. Lynch, Lucas May,
Vickie L. Patton, Tomas Carbonell, Benjamin Levitan,
Howard Learner, and Scott Strand. Alejandra Nunez
entered an appearance.
David M. Williamson argued the cause and filed the
briefs for Biogenic Petitioners.
Gene Grace, Jeff Dennis, and Rick Umoff were on
the brief for petitioners American Wind Energy
Association, et al.
6a
Theodore E. Lamm and Sean B. Hecht were on the
brief for amicus curiae Thomas C. Jorling in support
of petitioners.
Gabriel Pacyniak, Brent Chapman, and Graciela
Esquivel were on the brief for amici curiae the
Coalition to Protect America’s National Parks and the
National Parks Conservation Association in support
of petitioners.
Deborah A. Sivas and Matthew J. Sanders were on
the brief for amici curiae Administrative Law
Professors in support of petitioners.
Hope M. Babcock was on the brief for amici curiae
the American Thoracic Society, et al. in support of
petitioners.
Richard L. Revesz and Jack Lienke were on the brief
for amicus curiae the Institute for Policy Integrity at
New York University School of Law in support of
petitioners.
Steph Tai was on the brief for amici curiae Climate
Scientists in support of petitioners.
Michael Burger and Collyn Peddie were on the brief
for amici curiae the National League of Cities, et al.
in support of petitioners.
Keri R. Steffes was on the brief for amici curiae
Faith Organizations in support of petitioners.
Shaun A. Goho was on the brief for amici curiae
Maximilian Auffhammer, et al. in support of
petitioners.
Ethan G. Shenkman and Stephen K. Wirth were on
the brief for amici curiae Patagonia Works and
7a
Columbia Sportswear
petitioners.
Company
in
support
of
Mark Norman Templeton, Robert Adam Weinstock,
Alexander Valdes, and Benjamin Nickerson were on
the brief for amicus curiae Professor Michael
Greenstone in support of petitioners.
Nicole G. Berner and Renee M. Gerni were on the
brief for amicus curiae the Service Employees
International Union in support of petitioners.
Elizabeth B. Wydra, and Brianne J. Gorod were on
the brief for amici curiae Members of Congress in
support of petitioners.
Jonas J. Monast was on the brief for amici curiae
Energy Modelers in support of petitioners.
Katherine Konschnik was on the brief for amici
curiae Former Commissioners of the Federal Energy
Regulatory Commission in support of petitioners.
Michael Landis, Elizabeth S. Merritt, and Wyatt G.
Sassman were on the brief for amici curiae
Environment America and National Trust for
Historic Preservation in support of petitioners.
Cara A. Horowitz was on the brief for amici curiae
Grid Experts in support of petitioners.
Eric Alan Isaacson was on the brief for amici curiae
U.S. Senators in support of petitioners.
Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General, U.S. Department of Justice, and
Meghan E. Greenfield and Benjamin Carlisle,
Attorneys, argued the causes for respondents. With
them on the brief was Jeffrey Bossert Clark, Assistant
Attorney General.
8a
Lindsay S. See, Solicitor General, Office of the
Attorney General for the State of West Virginia,
argued the cause for State and Industry intervenors
in support of respondents regarding Affordable Clean
Energy Rule. With her on the brief were Patrick
Morrisey, Attorney General, Thomas T. Lampman,
Assistant Solicitors General, Thomas A. Lorenzen,
Elizabeth B. Dawson, Rae Cronmiller, Kevin G.
Clarkson, Attorney General at the time the brief was
filed, Office of the Attorney General for the State of
Alaska, Clyde Sniffen Jr., Attorney General, Leslie
Rutledge, Attorney General, Office of the Attorney
General for the State of Arkansas, Nicholas J. Bronni,
Solicitor General, Vincent M. Wagner, Deputy
Solicitor General, Dylan L. Jacobs, Assistant Solicitor
General, Steve Marshall, Attorney General, Office of
the Attorney General for the State of Alabama,
Edmund G. LaCour, Jr., Solicitor General,
Christopher M. Carr, Attorney General, Office of the
Attorney General for the State of Georgia, Andrew A.
Pinson, Solicitor General, Derek Schmidt, Attorney
General, Office of the Attorney General for the State
of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney
General, Curtis T. Hill, Jr., Attorney General, Office
of the Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Andrew Beshear, Governor,
Office of the Governor for the Commonwealth of
Kentucky, S. Travis Mayo, Chief Deputy General
Counsel, Taylor Payne, Deputy General Counsel,
Joseph A. Newberg, Deputy General Counsel and
Deputy Executive Director, Jeff Landry, Attorney
General, Office of the Attorney General for the State
of Louisiana, Elizabeth B. Murrill, Solicitor General,
Harry J. Vorhoff, Assistant Attorney General, Eric S.
Schmitt, Attorney General, Office of the Attorney
9a
General for the State of Missouri, D. John Sauer,
Solicitor General, Julie Marie Blake, Deputy Solicitor
General, Timothy C. Fox, Attorney General at the
time the brief was filed, Office of the Attorney General
for the State of Montana, Matthew T. Cochenour,
Deputy Solicitor General, Wayne Stenehjem, Attorney
General, Office of the Attorney General for the State
of North Dakota, Paul M. Seby, Special Assistant
Attorney General, Douglas J. Peterson, Attorney
General, Office of the Attorney General for the State
of Nebraska, Justin D. Lavene, Assistant Attorney
General, Dave Yost, Attorney General, Office of the
Attorney General of the State of Ohio, Benjamin M.
Flowers, Solicitor General, Cameron F. Simmons,
Principal Assistant Attorney General, Mike Hunter,
Attorney General, Office of the Attorney General for
the State of Oklahoma, Mithun Mansinghani,
Solicitor General, Jason R. Ravnsborg, Attorney
General, Office of the Attorney General for the State
of South Dakota, Steven R. Blair, Assistant Attorney
General, Alan Wilson, Attorney General, Office of the
Attorney General for the State of South Carolina,
James Emory Smith, Jr., Deputy Solicitor General,
Ken Paxton, Attorney General, Office of the Attorney
General for the State of Texas, Kyle D. Hawkins,
Solicitor General, Sean Reyes, Attorney General,
Office of the Attorney General for the State of Utah,
Tyler R. Green, Solicitor General, Bridget Hill,
Attorney General, Office of the Attorney General for
the State of Wyoming, James Kaste, Deputy Attorney
General, Todd E. Palmer, William D. Booth,
Obianuju Okasi, Carroll W. McGuffey, III, Misha
Tseytlin, C. Grady Moore, III, Julia Barber, F.
William Brownell, Elbert Lin, Allison D. Wood, Scott
A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven
10a
P. Lehotsky, Michael B. Schon, Emily Church
Schilling, Kristina R. Van Bockern, David M.
Flannery, Kathy G. Beckett, Edward L. Kropp, Amy
M. Smith, Janet J. Henry, Melissa Horne, Angela
Jean Levin, Eugene M. Trisko, John A. Rego, Reed W.
Sirak, Michael A. Zody, Jacob Santini, Robert D.
Cheren, Mark W. DeLaquil, and Andrew M.
Grossman. C. Frederick Beckner, III, James R.
Bedell, Margaret C. Campbell, Erik D. Lange, and
John D. Lazzaretti entered an appearance.
James P. Duffy argued the cause for Public Health
and Environmental Intervenors in support of
respondents. With him on the brief were Ann
Brewster Weeks, Sean H. Donahue, Susannah L.
Weaver, Joanne Spalding, Andres Restrepo, Vera
Pardee, Clare Lakewood, Elizabeth Jones, Brittany E.
Wright, Jon A. Mueller, David Doniger, Benjamin
Longstreth, Melissa J. Lynch, Lucas May, Vickie L.
Patton, Tomas Carbonell, Benjamin Levitan, Howard
Learner, and Scott Strand.
Letitia James, Attorney General, Office of the
Attorney General for the State of New York, Michael
J. Myers, Senior Counsel, Brian Lusignan, Assistant
Attorney General of Counsel, Barbara D. Underwood,
Solicitor General, Steven C. Wu, Deputy Solicitor
General, Matthew W. Grieco, Assistant Solicitor
General, Xavier Becerra, Attorney General, Office of
the Attorney General for the State of California,
Robert W. Byrne, Senior Assistant Attorney General,
David A. Zonana, Supervising Deputy Attorney
General, Jonathan A. Wiener, M. Elaine Meckenstock,
Timothy E. Sullivan, Elizabeth B. Rumsey, and
Theodore A.B. McCombs, Deputy Attorneys General,
William Tong, Attorney General, Office of the
11a
Attorney General for the State of Connecticut,
Matthew I. Levine and Scott N. Koschwitz, Assistant
Attorneys General, Kathleen Jennings, Attorney
General, Office of the Attorney General for the State
of Delaware, Valerie S. Edge, Deputy Attorney
General, Philip J. Weiser, Attorney General, Office of
the Attorney General for the State of Colorado, Eric
R. Olson, Solicitor General, Robyn L. Wille, Senior
Assistant Attorney General, Clare E. Connors,
Attorney General, Office of the Attorney General for
the State of Hawaii, William F. Cooper, Deputy
Attorney General, Aaron M. Frey, Attorney General,
Office of the Attorney General for the State of Maine,
Laura E. Jensen, Assistant Attorney General, Brian
E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, John B. Howard,
Jr., Joshua M. Segal, and Steven J. Goldstein, Special
Assistant Attorneys General, Maura Healey, Attorney
General, Office of the Attorney General for the
Commonwealth of Massachusetts, Melissa A. Hoffer
and Christophe Courchesne, Assistant Attorneys
General, Megan M. Herzog and David S. Frankel,
Special Assistant Attorneys General, Dana Nessel,
Attorney General, Office of the Attorney General for
the State of Michigan, Gillian E. Wener, Assistant
Attorney General, Keith Ellison, Attorney General,
Office of the Attorney General for the State of
Minnesota, Peter N. Surdo, Special Assistant
Attorney General, Aaron D. Ford, Attorney General,
Office of the Attorney General for the State of Nevada,
Heidi Parry Stern, Solicitor General, Gurbir S.
Grewal, Attorney General, Office of the Attorney
General for the State of New Jersey, Lisa J. Morelli,
Deputy Attorney General, Hector Balderas, Attorney
General, Office of the Attorney General for the State
12a
of New Mexico, Tania Maestas, Chief Deputy
Attorney General, Joshua H. Stein, Attorney General,
Office of the Attorney General for the State of North
Carolina, Asher Spiller, Assistant Attorney General,
Ellen F. Rosenblum, Attorney General, Office of the
Attorney General for the State of Oregon, Paul
Garrahan, Attorney-in-Charge, Steve Novick, Special
Assistant Attorney General, Josh Shapiro, Attorney
General, Office of the Attorney General for the
Commonwealth of Pennsylvania, Ann R. Johnston,
Senior Deputy Attorney General, Aimee D. Thomson,
Deputy Attorney General, Peter F. Neronha, Attorney
General, Office of the Attorney General for the State
of Rhode Island, Gregory S. Schultz, Special Assistant
Attorney General, Thomas J. Donovan, Jr., Attorney
General, Office of the Attorney General for the State
of Vermont, Nicholas F. Persampieri, Assistant
Attorney General, Mark Herring, Attorney General,
Office of the Attorney General for the Commonwealth
of Virginia, Donald D. Anderson, Deputy Attorney
General, Paul Kugelman, Jr., Senior Assistant
Attorney General and Chief, Environmental Section,
Caitlin Colleen Graham O’Dwyer, Assistant Attorney
General, Robert W. Ferguson, Attorney General,
Office of the Attorney General for the State of
Washington, Christopher H. Reitz and Emily C.
Nelson, Assistant Attorneys General, Karl A. Racine,
Attorney General, Office of the Attorney General for
the District of Columbia, Loren L. AliKhan, Solicitor
General, Tom Carr, City Attorney, Office of the City
Attorney for the City of Boulder, Debra S. Kalish,
Senior Counsel, Mark A. Flessner, Corporation
Counsel, Office of the Corporation Counsel for the
City of Chicago, Benna Ruth Solomon, Deputy
Corporation Counsel, Jared Policicchio, Supervising
13a
Assistant Corporation Counsel, Kristin M. Bronson,
City Attorney, Office of the City Attorney for the City
and County of Denver, Lindsay S. Carder and
Edward J. Gorman, Assistant City Attorneys,
Michael N. Feuer, City Attorney, Office of the City
Attorney for the City of Los Angeles, Michael J.
Bostrom, Assistant City Attorney, James E. Johnson,
Corporation Counsel, New York City Law
Department, Christopher G. King, Senior Counsel,
Marcel S. Pratt, City Solicitor, City of Philadelphia
Law Department, Scott J. Schwarz and Patrick K.
O’Neill, Divisional Deputy City Solicitors, and
Thomas F. Pepe, City Attorney, City of South Miami
were on the brief for the State and Municipal
Intervenors in support of respondents. Jeremiah
Langston, Assistant Attorney General, Office of the
Attorney General for the State of Montana, Stephen
C. Meredith, Solicitor, Office of the Attorney General
for the Commonwealth of Kentucky, Margaret I.
Olson, Assistant Attorney General, Office of the
Attorney General for the State of North Dakota, and
Erik E. Petersen, Assistant Attorney General, Office
of the Attorney General for the State of Wyoming, and
Robert A. Wolf entered appearances.
Patrick Morrisey, Attorney General, Office of the
Attorney General for the State of West Virginia,
Lindsay S. See, Solicitor General, Thomas T.
Lampman, Assistant Solicitor General, Scott A.
Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven P.
Lehotsky, Michael B. Schon, Thomas A. Lorenzen,
Elizabeth B. Dawson, Rae Cronmiller, Steve
Marshall, Attorney General, Office of the Attorney
General for the State of Alabama, Edmund G.
LaCour, Jr., Solicitor General, Kevin G. Clarkson,
14a
Attorney General, Office of the Attorney General for
the State of Alaska at the time the brief was filed,
Clyde Sniffen, Jr., Attorney General, Leslie Rutledge,
Attorney General, Office of the Attorney General for
the State of Arkansas, Nicholas J. Bronni, Solicitor
General, Vincent M. Wagner, Deputy Solicitor
General, Dylan L. Jacobs, Assistant Solicitor General,
Christopher M. Carr, Attorney General, Office of the
Attorney General for the State of Georgia, Andrew A.
Pinson, Solicitor General, Derek Schmidt, Attorney
General, Office of the Attorney General for the State
of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney
General, Curtis T. Hill, Jr., Attorney General, Office
of the Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Andrew Beshear, Governor,
Office of the Governor for the Commonwealth of
Kentucky, S. Travis Mayo, Chief Deputy General
Counsel, Taylor Payne, Deputy General Counsel,
Joseph A. Newberg, Deputy General Counsel and
Deputy Executive Director, Jeff Landry, Attorney
General, Office of the Attorney General for the State
of Louisiana, Elizabeth B. Murrill, Solicitor General,
Harry J. Vorhoff, Assistant Attorney General, Eric S.
Schmitt, Attorney General, Office of the Attorney
General for the State of Missouri, D. John Sauer,
Solicitor General, Julie Marie Blake, Deputy Solicitor
General, Timothy C. Fox, Attorney General at the
time the brief was filed, Office of the Attorney General
for the State of Montana, Matthew T. Cochenour,
Deputy Solicitor General, Wayne Stenehjem, Attorney
General, Office of the Attorney General for the State
of North Dakota, Paul M. Seby, Special Assistant
Attorney General, Douglas J. Peterson, Attorney
General, Office of the Attorney General for the State
of Nebraska, Justin D. Lavene, Assistant Attorney
15a
General, Dave Yost, Attorney General, Office of the
Attorney General of the State of Ohio, Benjamin M.
Flowers, Solicitor General, Cameron F. Simmons,
Principal Assistant Attorney General, Mike Hunter,
Attorney General, Office of the Attorney General for
the State of Oklahoma, Mithun Mansinghani,
Solicitor General, Jason R. Ravnsborg, Attorney
General, Office of the Attorney General for the State
of South Dakota, Steven R. Blair, Assistant Attorney
General, Alan Wilson, Attorney General, Office of the
Attorney General for the State of South Carolina,
James Emory Smith, Jr., Deputy Solicitor General,
Ken Paxton, Attorney General, Office of the Attorney
General for the State of Texas, Kyle D. Hawkins,
Solicitor General, Sean Reyes, Attorney General,
Office of the Attorney General for the State of Utah,
Tyler R. Green, Solicitor General, Bridget Hill,
Attorney General, Office of the Attorney General for
the State of Wyoming, James Kaste, Deputy Attorney
General, Todd E. Palmer, William D. Booth,
Obianuju Okasi, Carroll W. McGuffey, III, Misha
Tseytlin, C. Grady Moore, III, Julia Barber, F.
William Brownell, Elbert Lin, Allison D. Wood, Emily
Church Schilling, Kristina R. Van Bockern, David M.
Flannery, Kathy G. Beckett, Edward L. Kropp, Amy
M. Smith, Janet J. Henry, Melissa Horne, Angela
Jean Levin, Eugene M. Trisko, John A. Rego, Reed W.
Sirak, Michael A. Zody, Jacob Santini, Robert D.
Cheren, Mark W. DeLaquil, and Andrew M. Grossman
were on the brief for State and Industry Intervenors
in support of respondents regarding Clean Power
Plan Repeal.
Wayne Stenehjem, Attorney General, Office of the
Attorney General for the State of North Dakota, and
16a
Paul M. Seby, Special Assistant Attorney General,
were on the brief for intervenor State of North Dakota
in support of the respondents. Jerry Stouck entered
an appearance.
Thomas J. Ward, Megan H. Berge, and Jared R.
Wigginton were on the brief for amicus curiae
National Association of Builders in support of
respondents.
Before: MILLET, PILLARD, and WALKER, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Opinion concurring in part, concurring in the
judgment in part, and dissenting in part filed by
Circuit Judge WALKER.
17a
TABLE OF CONTENTS
I.
II.
Background.................................................... 17
A.
The Clean Air Act .....................................17
B.
Electricity and Climate Change ...............21
1.
Electricity .........................................21
2.
Climate Change and the
Federal Government ........................24
C.
The Clean Power Plan ..............................29
D.
The ACE Rule............................................32
1.
Repeal of the Clean Power Plan .......32
2.
Best System of Emission
Reduction ...........................................33
3.
Degree of Emission
Limitation Achievable.......................36
4.
Implementing Regulations ...............38
E.
Petitions for Review ..................................38
F.
Jurisdiction and Standard of Review .......39
Section 7411 ................................................... 40
A.
B.
C.
Statutory Context .....................................40
1.
Text ....................................................46
2.
Statutory History, Structure,
and Purpose .......................................59
3.
Compliance Measures .......................71
The Major Questions Doctrine .................74
1.
The EPA’s Regulatory Mandate .......75
2.
Best System of Emission
Reduction ...........................................80
Federalism .................................................92
18a
III. The EPA’s Authority to Regulate Carbon
Dioxide Emissions Under Section 7411 ... 98
A.
B.
The Coal Petitioners’ Challenges .............98
1.
Endangerment Finding.....................99
2.
Section 7411 and Section 7412’s
Parallel Operation...........................111
The Robinson Petitioners’ Challenges ...132
IV. Amendments to the Implementing
Regulations .................................................. 138
V.
Vacatur and Remand ................................. 146
VI. Conclusion.................................................... 147
19a
As the Supreme Court recognized nearly fourteen
years ago, climate change has been called “the most
pressing environmental challenge of our time.”
Massachusetts v. EPA, 549 U.S. 497, 505 (2007)
(formatting modified). Soon thereafter, the United
States government determined that greenhouse gas
emissions are polluting our atmosphere and causing
significant and harmful effects on the human
environment. Endangerment and Cause or
Contribute Findings for Greenhouse Gases Under
Section 202(a) of the Clean Air Act (2009
Endangerment Finding), 74 Fed. Reg. 66,496, 66,497–
66,499 (Dec. 15, 2009). And both Republican and
Democratic administrations have agreed: Power
plants burning fossil fuels like coal “are far and away”
the largest stationary source of greenhouse gases and,
indeed, their role in greenhouse gas emissions
“dwarf[s] other categories[.]” EPA Br. 169; see also
Standards of Performance for Greenhouse Gas
Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units
(New Source Rule), 80 Fed. Reg. 64,510, 64,522 (Oct.
23, 2015) (fossil-fuel-fired power plants are “by far the
largest emitters” of greenhouse gases).
The question in this case is whether the
Environmental Protection Agency (EPA) acted
lawfully in adopting the 2019 Affordable Clean
Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8,
2019), as a means of regulating power plants’
emissions of greenhouse gases. It did not. Although
the EPA has the legal authority to adopt rules
regulating those emissions, the central operative
terms of the ACE Rule and the repeal of its
predecessor rule, the Clean Power Plan, 80 Fed. Reg.
20a
64,662 (Oct. 23, 2015), hinged on a fundamental
misconstruction of Section 7411(d) of the Clean Air
Act. In addition, the ACE Rule’s amendment of the
regulatory framework to slow the process for
reduction of emissions is arbitrary and capricious. For
those reasons, the ACE Rule is vacated, and the
record is remanded to the EPA for further proceedings
consistent with this opinion.
I. BACKGROUND
A. THE CLEAN AIR ACT
In 1963, Congress passed the Clean Air Act, 42
U.S.C. § 7401 et seq., “to protect and enhance the
quality of the Nation’s air resources so as to promote
the public health and welfare and the productive
capacity of its population[,]” id. § 7401(b)(1).
Animating the Act was Congress’ finding that “growth
in the amount and complexity of air pollution brought
about by urbanization, industrial development, and
the increasing use of motor vehicles[] has resulted in
mounting dangers to the public health and welfare[.]”
Id. § 7401(a)(2).
Section 111 of the Clean Air Act, which was added
in 1970 and codified at 42 U.S.C. § 7411, directs the
EPA to regulate any new and existing stationary
sources of air pollutants that “cause[], or contribute[]
significantly to, air pollution” and that “may
reasonably be anticipated to endanger public health
or welfare.” 42 U.S.C. § 7411(b)(1)(A); see id.
§ 7411(d), (f) (providing that the EPA Administrator
“shall” regulate existing and new sources of air
pollution). A “stationary source” is a source of air
pollution that cannot move, such as a power plant. See
id. § 7411(a)(3) (defining “stationary source” as “any
21a
building, structure, facility, or installation which
emits or may emit any air pollutant[]”). An example
of a common non-stationary source of air pollution is
a gas-powered motor vehicle. See Utility Air
Regulatory Group v. EPA (UARG), 573 U.S. 302, 308
(2014).
Within 90 days of the enactment of Section 7411,
the EPA Administrator was to promulgate a list of
stationary source categories that “cause[], or
contribute[] significantly to, air pollution[.]” 42 U.S.C.
§ 7411(b)(1)(A). In 1971, the Administrator included
fossil-fuel-fired steam-generating power plants on
that list. Air Pollution Prevention and Control: List of
Categories of Stationary Sources, 36 Fed. Reg. 5,931
(March 31, 1971); see also New Source Rule, 80 Fed.
Reg. at 64,527–64,528. Today’s power plants fall in
that same category. ACE Rule, 84 Fed. Reg. at 32,557
n.250.
Once a stationary source category is listed, the
Administrator must promulgate federal “standards of
performance” for all newly constructed sources in the
category. 42 U.S.C. § 7411(b)(1)(B). The Act defines a
“standard of performance” as
a standard for emissions of air pollutants
which reflects the degree of emission limitation
achievable through the application of the best
system of emission reduction which (taking into
account the cost of achieving such reduction and
any nonair quality health and environmental
impact
and
energy
requirements)
the
Administrator determines has been adequately
demonstrated.
Id. § 7411(a)(1).
22a
Once such a new source regulation is promulgated,
the Administrator also must issue emission
guidelines for already-existing stationary sources
within that same source category. 42 U.S.C.
§ 7411(d)(1)(A)(ii); see also American Elec. Power Co.,
Inc. v. Connecticut (AEP), 564 U.S. 410, 424 (2011).
While the new source standards are promulgated
and enforced entirely by the EPA, the Clean Air Act
prescribes a process of cooperative federalism for the
regulation of existing sources. Under that structure,
the statute delineates three distinct regulatory steps
involving three sets of actors—the EPA, the States,
and regulated industry—each of which has a flexible
role in choosing how to comply. See 42 U.S.C.
§ 7411(a)(1), (d). This allows each State to work with
the stationary sources within its jurisdiction to devise
a plan for meeting the federally promulgated
quantitative guideline for emissions. See id.
§ 7411(d).
The process starts with the EPA first applying its
expertise to determine “the degree of emission
limitation achievable through the application of the
best system of emission reduction” that “has been
adequately demonstrated.” 42 U.S.C. § 7411(a)(1); see
40 C.F.R. § 60.22a. That system must “tak[e] into
account the cost of achieving such reduction and any
nonair quality health and environmental impact and
energy requirements[.]” 42 U.S.C. § 7411(a)(1). Once
the Administrator identifies the best system of
emission reduction, she then determines the amount
of emission reduction that existing sources should be
able to achieve based on the application of that system
and adopts corresponding emission guidelines. Id.; see
23a
also, e.g., ACE Rule, 84 Fed. Reg. at 32,523; Clean
Power Plan, 80 Fed. Reg. at 64,719.
Each State then submits to the EPA a plan that (i)
establishes standards of performance for that State’s
existing stationary sources’ air pollutants (excepting
pollutants already subject to separate federal
emissions standards), and (ii) “provides for the
implementation and enforcement of such standards of
performance[]” by the State. 42 U.S.C. § 7411(d)(1);
see 40 C.F.R. § 60.23a. The standards of performance
must “reflect[]” the emission targets that the EPA has
determined are achievable. 42 U.S.C. § 7411(a)(1). In
this context, a state standard need not adopt the best
system identified by the EPA to “reflect[]” it. Id.; see
40 C.F.R. § 60.24a(c). Instead, the Clean Air Act
affords States significant flexibility in designing and
enforcing standards that employ other approaches so
long as they meet the emission guidelines prescribed
by the Agency.
If a State fails to submit a satisfactory plan, the
EPA may prescribe a plan for that State. 42 U.S.C.
§ 7411(d)(2)(A); see 40 C.F.R. § 60.27a(c)–(e).
Similarly, if the State submits a plan but fails to
enforce it, the EPA itself may enforce the plan’s
terms. Id. § 7411(d)(2)(B).
The third and final set of relevant actors are the
regulated entities themselves, to which, under the
Act, the States may afford leeway in crafting
compliance measures. See Clean Power Plan, 80 Fed.
Reg. at 64,666; ACE Rule, 84 Fed. Reg. at 32,555.
The EPA has exercised its authority under Section
7411 over the years to set emission limitations for
different types of air pollution from various categories
24a
of existing sources. See 42 Fed. Reg. 12,022 (March 1,
1977) (fluorides from phosphate fertilizer plants); 42
Fed. Reg. 55,796 (Oct. 18, 1977) (acid mist from
sulfuric acid plants); 44 Fed. Reg. 29,828 (May 22,
1979) (total reduced sulfur from kraft pulp plants); 45
Fed. Reg. 26,294 (April 17, 1980) (fluorides from
primary aluminum plants); 60 Fed. Reg. 65,387 (Dec.
19, 1995) (various pollutants from municipal waste
combustors); 61 Fed. Reg. 9905 (March 12, 1996)
(landfill gases from municipal solid waste landfills);
70 Fed. Reg. 28,606 (May 18, 2005) (mercury from
coal-fired power plants).
The Clean Air Act is a comprehensive statute that
includes a variety of regulatory programs for tackling
air pollution in addition to Section 7411. Regulated
parties may be subject to one or more programs. As
relevant here, the National Ambient Air Quality
Standards (NAAQS) provisions, 42 U.S.C. §§ 7408–
7410, govern the levels of specified air pollutants that
may be present in the atmosphere to protect air
quality and the public health and welfare. The
Hazardous Air Pollutants program, id. § 7412, directs
the EPA to establish strict emission limitations for
the most dangerous air pollutants emitted from major
sources. Section 7411’s cooperative federalism
program for existing sources operates as a gap-filler,
requiring the EPA to regulate harmful emissions not
controlled under those other two programs. Id.
§ 7411(d)(1)(i).
B. ELECTRICITY AND CLIMATE CHANGE
1. Electricity
Electricity powers the world. Chances are that you
are reading this opinion on a device that consumes
25a
electricity. Yet two distinct characteristics of
electricity make its production and delivery in the
massive quantities demanded by consumers an
exceptionally complex process. First, unlike most
products, electricity is a perfectly fungible commodity.
Grid Experts Amicus Br. 6. A watt of electricity is a
watt of electricity, no matter who makes it, how they
make it, or where it is purchased. Second, at least as
of now, this highly demanded product cannot be
effectively stored at scale after it is created. Paul L.
Joskow, Creating a Smarter U.S. Electricity Grid, 26
J. Econ. Persp. 29, 31–33 (2012).1 Instead, electricity
must constantly be produced, and is almost
instantaneously consumed. See Clean Power Plan, 80
Fed. Reg. at 64,677, 64,692; Grid Experts Amicus Br.
8.
Those unique attributes led to the creation of the
American electrical grid.2 The grid has been called the
1
Change in storage capacity is picking up speed. See
generally Richard L. Revesz & Burcin Unel, Managing the
Future of the Electricity Grid: Energy Storage and Greenhouse
Gas Emissions, 42 HARV. ENV’T L. REV. 139, 140–141 (2018)
(describing ongoing declines in cost of storage); LAZARD,
LAZARD’S LEVELIZED COST OF STORAGE ANALYSIS—VERSION 6.0
(2020) (noting “storage costs have declined across most use cases
and technologies, particularly for shorter-duration applications,
in part driven by evolving preferences in the industry”).
Nevertheless, the grid’s production capacity still far exceeds its
present storage capacity. Univ. of Mich. Ctr. for Sustainable
Sys.,
U.S.
GRID
ENERGY
STORAGE
(Sept.
2020),
http://css.umich.edu/sites/default/files/US%20Grid%20Energy%
20Storage_CSS15-17_e2020.pdf (last visited Jan. 11, 2021)
(United States has 1,100 gigawatts of installed generation
capacity and just 23 gigawatts of storage capacity).
Technically, “grids.” There are three regional grids in the
contiguous United States: Eastern, Western, and Texas. Grid
2
26a
“supreme engineering achievement of the 20th
century,” MASS. INST. OF TECH., THE FUTURE OF THE
ELECTRIC GRID 1 (2011) (formatting modified), and it
is an exceptionally complex, interconnected system.
“[A]ny electricity that enters the grid immediately
becomes a part of a vast pool of energy that is
constantly moving[.]” New York v. FERC, 535 U.S. 1,
7 (2002). That means that units of electricity as
delivered to the user are identical, no matter their
source. On the grid, there is no coal-generated
electricity or renewable-generated electricity; there is
just electricity. See Clean Power Plan, 80 Fed. Reg. at
64,692; Grid Experts Amicus Br. 7–8. Also, because
storing electricity for any length of time remains
technically challenging and often costly, the
components of the grid must operate as a perfectly
calibrated machine to deliver the amount of electricity
that all consumers across the United States need at
the moment they need it. Grid Experts Amicus Br. 8,
10–11; see also 80 Fed. Reg. at 64,677. “If [someone]
in Atlanta on the Georgia [leg of the] system turns on
a light, every generator on Florida’s system almost
instantly is caused to produce some quantity of
additional electric energy which serves to maintain
the balance in the interconnected system[.]” Federal
Power Comm’n v. Florida Power & Light Co., 404 U.S.
453, 460 (1972) (citation omitted). “Like orchestra
conductors signaling entrances and cut-offs, grid
operators use automated systems to signal particular
Experts Amicus Br. 9; see also United States Dep’t of Energy,
North
American
Electric
Reliability
Corporation
Interconnections, https://www.energy.gov/oe/downloads/northamerican-electric-reliability-corporation-interconnections (last
visited Jan. 11, 2021).
27a
generators to dispatch more or less power to the grid
as needed over the course of the day, thus ensuring
that power pooled on the grid rises and falls to meet
changing demand.” Grid Experts Amicus Br. 11.
Most generators of electricity on the American grid
create power by burning fossil fuels like coal, oil, and
natural gas. See United States Energy Information
Administration (EIA), Frequently Asked Questions:
What Is U.S. Electricity Generation by Energy Source?
(Nov.
2,
2020),
https://www.eia.gov/tools/faqs/faq.php?id=427&t=3
(last visited Jan. 11, 2021) (fossil fuels represented
62.6 percent of electricity generation in 2019). Some
of those power plants take a fossil fuel (usually coal)
and burn it in a water boiler to make steam. Other
power plants take a different fossil fuel (usually
natural gas), mix it with highly compressed air, and
ignite it to release a combination of super-hot gases.
Either way, that steam or superheated mixture is
piped into giant turbines that catch the gases and
rotate at extreme speeds. Those turbines turn
generators, which spin magnets within wire coils to
produce electricity. EIA, Electricity Explained (Nov. 9,
2020),
https://www.eia.gov/energyexplained/electricity/howelectricity-is-generated.php (last visited Jan 11,
2021).
2. Climate Change and the Federal
Government
Electrical power has become virtually as
indispensable to modern life as air itself. But
electricity generation has come into conflict with air
quality in ways that threaten human health and wellbeing when power generated by burning fossil fuels
28a
emits carbon dioxide and other polluting greenhouse
gases into the air.
Since the late 1970s, the federal government has
focused “serious attention” on the effects of carbon
dioxide pollution on the climate. Massachusetts v.
EPA, 549 U.S. at 507. In 1978, Congress adopted the
National Climate Program Act, Pub. L. No. 95-367, 92
Stat. 601, which directed the President to study and
devise an appropriate response to “man-induced
climate processes and their implications[,]” id. § 3; see
Massachusetts v. EPA, 549 U.S. at 507–508. In
response, the National Academy of Sciences’ National
Research Council reported “no reason to doubt that
climate changes will result” if “carbon dioxide
continues to increase,” and “[a] wait-and-see policy
may mean waiting until it is too late.” Massachusetts
v. EPA, 549 U.S. at 508 (quoting CLIMATE RESEARCH
BOARD, CARBON DIOXIDE & CLIMATE: A SCIENTIFIC
ASSESSMENT, at viii (1979)).
In 1987, Congress passed the Global Climate
Protection Act, which found that “manmade
pollution[,]” including “the release of carbon dioxide,
* * * may be producing a long-term and substantial
increase in the average temperature on Earth[.]” Pub.
L. No. 100-204, Title XI, § 1102(1), 101 Stat. 1407,
1408 (codified at 15 U.S.C. § 2901 note). The Climate
Protection Act directed the EPA to formulate a
“coordinated national policy on global climate
change.” Id. § 1103(b), 101 Stat. at 1408; see
Massachusetts v. EPA, 549 U.S. at 508.
It was no until the Supreme Court’s 2007 decision
in Massachusetts v. EPA, however, that the Court
confirmed that carbon dioxide and other greenhouse
29a
gas emissions constituted “air pollutant[s]” covered by
the Clean Air Act. See 549 U.S. at 528. The Supreme
Court explained that the Clean Air Act’s “sweeping
definition of ‘air pollutant’ includes ‘any air pollution
agent or combination of such agents, including any
physical, chemical . . . substance or matter which is
emitted into or otherwise enters the ambient air[.]’”
Id. at 528–529 (quoting 42 U.S.C. § 7602(g)). The Act,
the Supreme Court held, “is unambiguous” in that
regard. Id. at 529. “On its face, the definition
embraces all airborne compounds of whatever stripe,
and underscores that intent through the repeated use
of the word ‘any.’” Id. And “[c]arbon dioxide” and other
common greenhouse gases are “without a doubt”
chemical substances that are “emitted into . . . the
ambient air.” Id. (quoting 42 U.S.C. § 7602(g)).
Given that statutory command, the Supreme Court
ruled that the EPA “can avoid taking further action”
to regulate such pollution “only if it determines that
greenhouse gases do not contribute to climate change”
or offers some reasonable explanation for not
resolving that question. Massachusetts v. EPA, 549
U.S. at 533.
Taking up the mantle, the EPA in 2009 found
“compelling[]” evidence that emissions of greenhouse
gases are polluting the atmosphere and are
endangering human health and welfare by causing
significant damage to the environment. 2009
Endangerment Finding, 74 Fed. Reg. at 66,497; see id.
(“[T]he Administrator finds that greenhouse gases in
the atmosphere may reasonably be anticipated both
to endanger public health and to endanger public
welfare. * * * The Administrator has determined that
the body of scientific evidence compellingly supports
30a
this finding.”); id. at 66,497–66,499. The EPA
concluded that “‘compelling’ evidence supported the
‘attribution of observed climate change to
anthropogenic’ [that is, human-influenced] emissions
of greenhouse gases[.]” AEP, 564 U.S. at 417 (quoting
74 Fed. Reg. at 66,518). The “[c]onsequent dangers of
greenhouse gas emissions,” the EPA determined,
include
increases in heat-related deaths; coastal
inundation and erosion caused by melting
icecaps and rising sea levels; more frequent and
intense hurricanes, floods, and other “extreme
weather events” that cause death and destroy
infrastructure; drought due to reductions in
mountain snowpack and shifting precipitation
patterns; destruction of ecosystems supporting
animals and plants; and potentially “significant
disruptions” of food production.
Id. (quoting 74 Fed. Reg. at 66,524–66,535).
Not long thereafter, the Supreme Court ruled that
the significant greenhouse gas pollution caused by
fossil-fuel-fired power plants is subject to regulation
under Section 7411 of the Clean Air Act. AEP, 564
U.S. at 424 (holding that Section 7411 “speaks
directly to emissions of carbon dioxide from [fossilfuel-fired] plants[]”) (internal quotation marks
omitted). The Court concluded that the EPA’s
expertise made it “best suited to serve as primary
regulator of greenhouse gas emissions.” Id. at 428.
In 2015, with the 2009 carbon dioxide
endangerment finding continuing in effect, the EPA
reaffirmed that greenhouse gases “endanger public
health, now and in the future.” New Source Rule, 80
31a
Fed. Reg. at 64,518. The EPA explained that, “[b]y
raising average temperatures, climate change
increases the likelihood of heat waves, which are
associated with increased deaths and illnesses[,]”
particularly among “[c]hildren, the elderly, and the
poor[.]” Id. at 64,517. In addition, the EPA found that
“[c]limate change impacts touch nearly every aspect
of public welfare.” Id. Among the “multiple threats
caused by human emissions of [greenhouse gases],”
the EPA pointed to climate changes that “are
expected to place large areas of the country at serious
risk of reduced water supplies, increased water
pollution, and increased occurrence of extreme events
such as floods and droughts.” Id. The EPA
“emphasize[d] the urgency of reducing [greenhouse
gas] emissions due to * * * projections that show
[greenhouse gas] concentrations climbing to everincreasing levels in the absence of mitigation[,]” citing
independent assessments finding that, “without a
reduction in emissions, CO2 concentrations by the end
of the century would increase to levels that the Earth
has not experienced for more than 30 million years.”
Id. at 64,518.
The federal government’s consistent recognition of
the danger to public health and welfare caused by
climate change, and the signal contribution of
greenhouse gas emissions from power plants to global
warming, continues to the present. In 2018, President
Trump’s administration concluded that “Earth’s
climate is now changing faster than at any point in
the history of modern civilization, primarily as a
result of human activities.” U.S. GLOBAL CHANGE
RESEARCH PROGRAM, FOURTH NATIONAL CLIMATE
ASSESSMENT, VOLUME II: IMPACTS, RISKS, AND
32a
ADAPTATION IN THE UNITED STATES (REPORT-INBRIEF) 24 (2018). The administration added that “the
evidence of human-caused climate change is
overwhelming and continues to strengthen,” and “the
impacts of climate change are intensifying across the
country[.]” Id. at 26 (emphasis omitted). “Climaterelated changes in weather patterns and associated
changes in air, water, food, and the environment are
affecting the health and well-being of the American
people, causing injuries, illnesses, and death.” Id. at
102. The administration’s report concluded that
urgent action is needed to mitigate these dangers
because “[f]uture risks from climate change depend
primarily on decisions made today.” Id. at 13.
In preparing the ACE Rule, the EPA expressly
acknowledged its continued adherence to the 2015
endangerment finding. 84 Fed. Reg. at 32,533 (The
2015 New Source Rule “continues to provide the
requisite predicate for applicability of [Clean Air Act]
section 111(d).”); id. at 32,557 n.250; see also Emission
Guidelines for Greenhouse Gas Emissions from
Existing Electric Utility Generating Units; Revisions
to Emission Guideline Implementing Regulations;
Revisions to New Source Review Program: Proposed
Rule, 83 Fed. Reg. 44,746, 44,751 (Aug. 31, 2018)
(confirming that the 2015 New Source Rule “remains
on the books[]”); EPA Br. 217.
That endangerment finding provided the essential
factual foundation—and triggered a statutory
mandate—for the EPA to regulate greenhouse gas
emissions from both new and existing power plants.
See New Source Rule, 80 Fed. Reg. at 64,527, 64,529–
64,532; Clean Power Plan, 80 Fed. Reg. at 64,683–
64,690; see also 42 U.S.C. §§ 7411(b)(1)(A)–(B) (duty
33a
to regulate new stationary sources that contribute
significantly to dangerous pollution identified in
endangerment finding), 7411(d)(1)(A)(ii) (duty to
regulate existing stationary sources that would be
regulated under § 7411(b) if they were new stationary
sources). Recall, Section 7411(b)(1)(A) provides that
the EPA Administrator “shall” regulate any category
of sources that, “in his judgment * * * causes, or
contributes significantly to, air pollution which may
reasonably be anticipated to endanger public health
or welfare.” The EPA endangerment findings reflect
such well-established risks.
C. THE CLEAN POWER PLAN
In the last decade, the EPA has heavily focused its
regulation of greenhouse gases on the power sector
because “power plants are far and away the largest
stationary-category source of greenhouse gases[,]”
and “power plants’ contributions to CO2 pollution * *
* dwarf[] other categories[.]” EPA Br. 169.
In October 2015, the EPA issued greenhouse gas
emission standards for new and modified power
plants. See New Source Rule, 80 Fed. Reg. at 64,510.
In so doing, the EPA found that, “[a]ll told, these fossil
fuel-fired [power plants] emit almost one-third of all
U.S. [greenhouse gas] emissions, and are responsible
for almost three times as much as the emissions from
the next ten stationary source categories combined.”
Id. at 64,531. That rule and finding remain in effect
and are not challenged in this litigation.
The EPA then turned to the regulation of existing
power plants. The EPA began, as the Clean Air Act
requires, by determining the best system of emission
reduction that has been adequately demonstrated for
34a
existing fossil-fuel-fired power plants. See 42 U.S.C.
§ 7411(a)(1); Clean Power Plan, 80 Fed. Reg. at
64,718. In identifying that system, the EPA chose to
build on the established grid system and methods of
operation already adopted by and familiar to the
power sector. See 80 Fed. Reg. at 64,725, 64,727–
64,728. The regulations and standards that the EPA
formulated came to be known as the Clean Power
Plan. Id. at 64,663.
In the Clean Power Plan, the EPA determined that
a combination of three existing methods of emission
reduction—which the Plan referred to as building
blocks, 80 Fed. Reg. at 64,667—formed the “best
system of emission reduction,” 42 U.S.C. § 7411(a)(1).
First,
the
system
incorporated
heat-rate
improvements—that is, technological measures that
improve efficiency at coal-fired steam power plants
and, in that way, reduce the amount of coal that must
be burned to produce each watt of electricity to the
grid. 80 Fed. Reg. at 64,667.
Second, the system added the “substitut[ion of]
increased generation from lower-emitting existing
natural gas combined cycle units for generation from
higher-emitting affected steam generating” power
plants, which are mostly coal-fired. 80 Fed. Reg. at
64,667.
Third, the system prioritized the use of electricity
generated from zero-emitting renewable-energy
sources over electricity from the heavily greenhousegas-polluting fossil-fuel-fired power plants. 80 Fed.
Reg. at 64,667.
Those second and third methods of emission control
are often referred to as “generation shifting” because
35a
the reductions occur when the source of power
generation shifts from higher-emission power plants
to less-polluting sources of energy. See Clean Power
Plan, 80 Fed. Reg. at 64,728–64,729. As the EPA
observed, such shifts in generation already occur all
the time as a matter of grid mechanics. That is, within
the grid’s “Constrained Least-Cost Dispatch” system,
production from “generators with the lowest variable
costs” will be dispatched “first, as system operational
limits allow, until all demand is satisfied.” Grid
Experts Amicus Br. 12. “[R]enewable energy
generators typically receive dispatch priority because
they have lower variable costs than fossil-fuel-fired
generators, which must purchase fuel.” Id. at 13
(citing 80 Fed. Reg. at 64,693). The EPA found that
most electricity is generated by diversified utilities
that could achieve most or all of the shift to lower- or
no-emission generation by reassessing the dispatch
priority of their own assets. See 80 Fed. Reg. at
64,796, 64,804.
As required by Section 7411(a)(1), the EPA then
quantified the degree of emission reduction
achievable under that three-tier best system for the
relevant fossil-fuel-fired power plants and translated
it into state-specific emissions goals for 2030. Clean
Power Plan, 80 Fed. Reg. at 64,824–64,825. To permit
additional flexibility, the Plan actually provided two
alternative types of targets: rate-based goals,
reflecting the rate of emission per certain amount of
generation, and mass-based goals, reflecting the total
emission from a State’s sources. Id. at 64,820, 64,824–
64,825 Tables 12, 13. The alternative metrics were an
added source of flexibility for States in choosing how
they would meet the federal limits.
36a
Under the Clean Air Act, States could then propose
plans that set standards of performance for their
existing power plants that would meet those emission
goals. Clean Power Plan, 80 Fed. Reg. at 64,664. In
doing so, the States and their power plants were
under no obligation to use the three specific methods
that the EPA had identified in determining the best
system of emission reduction. Rather, consistent with
Section 7411(d)’s cooperative federalism approach,
States were free to choose any measures, approaches,
or technologies that they deemed appropriate to meet
the federal guidelines. For example, they could adopt
technological controls already in use by some power
plants like carbon capture and sequestration (by
which carbon dioxide is captured from the plant’s flue
gas before it is emitted and then securely stored so it
cannot reach the atmosphere) or co-firing (where fuels
that release less carbon dioxide are burned alongside
fuels that release more to reduce the amount of the
latter used). See id. at 64,883. The EPA also suggested
that States might rely on emissions-trading programs
(often referred to as cap-and-trade) and other
potential compliance strategies. Id. at 64,887.
The EPA found that its proposed approach was
“consistent with, and in some ways mirrors, the
interconnected, interdependent and highly regulated
nature of the utility power sector[]” and its grid, as
well as “the daily operation of affected [power plants]
within this framework, and the critical role of utilities
in providing reliable, affordable electricity at all times
and in all places within this complex, regulated
system.” Clean Power Plan, 80 Fed. Reg. at 64,678.
The Clean Power Plan was challenged in this court.
West Virginia v. EPA, No. 15-1363 (and consolidated
37a
cases) (D.C. Cir. Oct. 23, 2015). After we heard
argument en banc, but before we issued a decision,
that litigation was held in abeyance and ultimately
dismissed as the EPA reassessed its position. No. 151363, Docs. 1673071, 1806952.
D. THE ACE RULE
In 2019, the EPA issued a new rule that repealed
and replaced the Clean Power Plan: The Affordable
Clean Energy (ACE) Rule. See Repeal of the Clean
Power Plan; Emission Guidelines for Greenhouse Gas
Emissions from Existing Electric Utility Generating
Units;
Revisions
to
Emission
Guidelines
Implementing Regulations, 84 Fed. Reg. 32,520 (July
8, 2019). That Rule is the subject of this litigation.
1. Repeal of the Clean Power Plan
At the outset, the ACE Rule repealed the Clean
Power Plan. The EPA explained that it felt itself
statutorily compelled to do so because, in its view,
“the
plain
meaning”
of
Section
7411(d)
“unambiguously” limits the best system of emission
reduction to only those measures “that can be put into
operation at a building, structure, facility, or
installation.” ACE Rule, 84 Fed. Reg. at 32,523–
32,524. Because the Clean Power Plan’s best system
was determined by using some emission control
measures that the EPA characterized as physically
operating off the site of coal-fired power plants—such
as some forms of generation shifting and emissions
trading—the EPA concluded that it had no choice but
to repeal the Plan. Id. The EPA emphasized “that [its]
action is based on the only permissible reading of the
statute and [it] would reach that conclusion even
without consideration of the major question doctrine,”
38a
while adding that application of that latter doctrine
“confirms the unambiguously expressed intent” of
Section 7411. Id. at 32,529.
2. Best System of Emission Reduction
Considering its authority under Section 7411 to be
confined to physical changes to the power plants
themselves, the EPA’s ACE Rule determined a new
best system of emission reduction for coal-fired power
plants only. The EPA left unaddressed in this
rulemaking (or elsewhere) greenhouse gas emissions
from other types of fossil-fuel-fired power plants, such
as those fired by natural gas or oil. ACE Rule, 84 Fed.
Reg. at 32,533.
The EPA’s proposed system relied solely on heatrate improvement technologies and practices that
could be applied at and to existing coal-fired power
plants. ACE Rule, 84 Fed. Reg. at 32,525, 32,537. The
EPA selected only seven heat-rate improvement
techniques as components of its best system. Id. at
32,537. Six of those measures were new-to-the-plant
technologies or “equipment upgrades.” Id. at 32,536–
32,537 (naming as part of the best system (1) adding
or upgrading neural networks and intelligent
sootblowers; (2) upgrading boiler feed pumps; (3)
replacing or upgrading air heater and duct leakage
control devices; (4) adding variable frequency drives
in feed pumps and induced-draft fans; (5) blade path
upgrades; and (6) redesigning or replacing
economizers). The seventh measure was the use of
“best operating and maintenance practices”
implementing heat-rate improvement techniques. Id.
at 32,537, 32,540. The EPA limited itself to
techniques that could be “applied broadly” to the
39a
Nation’s coal-fired plants, which primarily amounted
to upgrades to existing equipment. Id. at 32,536.
The EPA explained that only five of the seven listed
techniques directly reduce the heat rate of power
plants. See ACE Rule, 84 Fed. Reg. at 32,538–32,540.
The other two techniques—replacing or upgrading
the boiler feed pump and installing variable
frequency drives—serve to reduce the amount of
energy that a power plant must use to run its own
general operations. Id. at 32,538–32,539.3 So those
two techniques do not make a power plant more
efficient in turning coal into power, but instead allow
power plants to dispatch more of the power they
produce to the grid rather than using it internally. Id.
The EPA identified two of its other chosen
techniques—blade path and economizer upgrades—
as the measures that, of all the considered
technologies, were “expected to offer some of the
largest [heat-rate] improvements.” ACE Rule, 84 Fed.
Reg. at 32,537 (showing table predicting highest heat-
3
The boiler feed pump is a device that is used to pump
water into the boiler. 84 Fed. Reg. at 32,538. It consumes a “large
fraction” of the power used to run the plant. Id. Because the
boiler feed pump requires so much energy, the EPA suggested
that “maintenance on these pumps should be rigorous to ensure
both reliability and high-efficiency operation.” Id. Variable
frequency drives “enable[] very precise and accurate speed
control” of both boiler feed pumps and “induced draft (ID) fans,”
which “maintain proper flue gas flow through downstream air
pollutant control equipment[.]” Id. at 32,539. This precise control
would reduce the excess use of fans and pumps, requiring less
energy. See id.
40a
rate improvement range in economizer redesign or
replacements and blade path upgrades).4
But the EPA then stated that it expected some
power plants would not adopt those two technologies
because their use could trigger additional regulation
that the companies would find burdensome. 84 Fed.
Reg. at 32,537 (“[B]ased on public comments * * *,
[blade path upgrades and economizer redesign or
replacement]
are
[heat-rate
improvement]
technologies that have the most potential to trigger
[New Source Review] requirements.”). In fact, the
EPA did not model those two techniques in its
regulatory impact analysis precisely because it was
unlikely that they would be adopted. J.A. 1656–1657.
Finally, the EPA acknowledged that the proposed
technologies could create a “rebound effect.” ACE
Rule, 84 Fed. Reg. at 32,542. A rebound effect means
that net carbon dioxide emissions actually increase as
a result of the efficiency improvements made by
power plants. Id. This happens because, as the
efficiency upgrades make coal-based energy cheaper
to produce, coal-fired power plants will have an
incentive to run more often, thereby increasing their
overall emissions. Id. The EPA found that risk of
increased emissions irrelevant because its best
system of emission reduction “is aimed at improving
a source’s emissions rate performance at the unitlevel,” rather than reducing the overall volume of
emissions by individual sources. Id. at 32,543.
4
“Blade path upgrades” consist of upgrades to the steam
turbine. Economizers are heat-exchange devices that “capture
waste heat from boiler flue gas” and use that captured heat to
help heat the boiler feedwater. Id. at 32,540.
41a
In choosing its seven proposed power-plant-based
heat-rate improvement technologies, the EPA
excluded from its best system several other suggested
methods of reducing emissions, including (1) natural
gas co-firing, repowering, and refueling; (2) biomass
co-firing; and (3) carbon capture and storage
technologies. ACE Rule, 84 Fed. Reg. at 32,543–
32,547. The EPA rejected biomass co-firing primarily
because “any potential net reductions in emissions
from biomass use occur outside of the regulated
source,” and so do not fall within the EPA’s reading of
Section 7411(d) as confined to emission limits
imposed at and to individual plants. Id. at 32,546. The
EPA excluded natural gas co-firing and carbon
capture and storage from its own best system, citing
cost, geographical, and operational concerns. Id. at
32,544–32,545, 32,547–32,548. The EPA provided
that sources could choose to use natural gas co-firing
or carbon capture—but not biomass co-firing—to
meet state-established standards of performance. Id.
at 32,555.
3. Degree of Emission Limitation Achievable
Having determined its best system of emission
reduction, the EPA then purported to prescribe the
“degree of emission limitation achievable,” which
States could use to create their own standards of
performance. 42 U.S.C. § 7411(a)(1). What the EPA
produced as its emission guidelines was a chart that
prescribed heat-rate improvement “ranges” for each
of the EPA’s chosen heat-rate improvement
technologies, organized by power plants of differing
sizes. ACE Rule, 84 Fed. Reg. at 32,537. The ranges
show how much heat-rate improvement can be
42a
“expected” from use of each of the identified
technologies. Id.
The EPA was explicit, though, that the “potential”
range of heat-rate reduction was only illustrative and
that the actual reduction for each of the EPA’s chosen
technologies would be “unit-specific” and would
“depend upon a range of unit-specific factors.” ACE
Rule, 84 Fed. Reg. at 32,537–32,538. In that way, the
ACE Rule made States responsible for evaluating
“[heat-rate
improvement] potential, technical
feasibility, and applicability for each of the [best
system of emission reduction] candidate technologies”
on a power-plant-by-power-plant basis. Id. at 32,538.
The ACE Rule expressly left States free to establish
their own standards of performance for their power
plants that “reflect a value of [heat-rate
improvement] that falls outside” the ranges provided
in the EPA’s chart. Id. (emphasis added). In other
words, the minimums listed in the EPA’s emissionreduction chart were only suggestions.
The EPA explained that its non-mandatory ranges
of efficiency reduction were valid because the
applicability of the heat-rate improvement techniques
to different plants and the effectiveness of each power
plant’s existing technology may vary. See ACE Rule,
84 Fed. Reg. at 32,538 (stating that “not all” of the
technologies would be “applicable or warranted at the
level of a particular facility due to source-specific
factors such as the site-specific operational and
maintenance history, the design and configuration,
[or] the expected operating plans”).
The EPA predicted that its ACE Rule would reduce
carbon dioxide emissions by less than 1% from
43a
baseline emission projections by 2035. J.A. 1651. That
calculation did not reflect emission increases that
could result from the rebound effect.
4. Implementing Regulations
The ACE Rule included some new regulations
under Section 7411(d). ACE Rule, 84 Fed. Reg. at
32,575–32,584 (codified at 40 C.F.R. pt. 60, subpart
Ba). As relevant here, the regulations significantly
extend the States’ deadlines for the development and
submittal of their plans for emission reduction from
nine months to three years. See 40 C.F.R.
§ 60.23a(a)(1). Similarly, the new regulations extend
the EPA’s deadline to act on those plans from four
months to one year. 40 C.F.R. § 60.27a(b). The new
regulations also extend the EPA’s deadline to
substitute its own plan for a non-compliant State’s
plan from six months after the submission deadline to
two years after a finding that the plan was
incomplete, disapproved, or unsubmitted. Seeb40
C.F.R. § 60.27a(c). Finally, the requirement that
States demonstrate compliance progress is now
triggered only where a State’s compliance schedule
stretches more than two years from when its plan was
originally due, as opposed to the one-year period in
the prior regulations. See 40 C.F.R. § 60.24a(d).
E. PETITIONS FOR REVIEW
Twelve petitions for review of the ACE Rule were
timely filed in this court and consolidated in this case.
Nos. 19-1140 (lead case), 19-1165, 19-1166, 19-1173,
19-1175, 19-1176, 19-1177, 19-1179, 19-1185, 191186, 19-1187, 19-1188. The petitioners fall into three
groups.
44a
The first grouping consists of petitioners who seek
review of the ACE Rule’s conclusion that Section 7411
only permits emission reduction measures that can be
implemented at and applied to the source. Those
petitioners include (i) a coalition of State and
municipal governments; (ii) power utilities; (iii) trade
associations from the renewable energy industry; and
(iv) several public health and environmental advocacy
groups.5
The second grouping is petitioners who challenge
the ACE Rule’s imposition of any emission limits as
unlawful because, in their view, (i) the EPA failed to
make a specific endangerment finding for carbon
dioxide emitted from existing power plants; (ii) the
EPA’s regulation of mercury emissions from coal-fired
power plants under Section 7412 precludes the
regulation of greenhouse gas emissions under Section
7411; and (iii) the EPA should have regulated carbon
dioxide from stationary sources, including power
plants, under the NAAQS program, 42 U.S.C.
§§ 7408–7410.
The third petitioner group is the Biogenic CO2
Coalition. They object only to the ACE Rule’s
determination that States may not count biomass cofiring as a method of complying with numerical
emission limits.
F. JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction to review these petitions
under the Clean Air Act. 42 U.S.C. § 7607(b)(1); see
5
The public health and environmental advocacy groups
also challenge the third prong of the ACE Rule—the new
implementing regulations—as arbitrary and capricious.
45a
also Sierra Club v. EPA, 955 F.3d 56, 61 (D.C. Cir.
2020).
We may set aside the ACE Rule if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 42 U.S.C. § 7607(d)(1)(C),
(d)(9)(A); see also Maryland v. EPA, 958 F.3d 1185,
1196 (D.C. Cir. 2020) (“[W]e apply the same standard
of review under the Clean Air Act as we do under the
Administrative Procedure Act.”) (quoting Allied Local
& Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C.
Cir. 2000)).
II. SECTION 7411
A. STATUTORY CONTEXT
In enacting the Clean Air Act, “Congress delegated
to EPA the decision whether and how to regulate
carbon-dioxide
emissions
from
powerplants.”
American Elec. Power Co. v. Connecticut (AEP), 564
U.S. 410, 426 (2011). As the Supreme Court has
observed, 42 U.S.C. § 7411 “speaks directly to” and
outlines the framework for that regulation. Id. at 424
(internal quotation marks omitted). Specifically,
Section 7411 marks out a pair of distinct regulatory
tracks for stationary sources of air pollutants. See 42
U.S.C. § 7411(a)(2), (6). The first track applies to new
sources, id. § 7411(b), and the second to existing
sources, id. § 7411(d). The statute calls for federalstate cooperation in regulating existing sources,
affording distinct roles to the federal and state
agencies in arriving at what Section 7411 calls
“standards of performance” for the emission of air
pollutants. Id. § 7411(a)(1), (c), (d)(1).
The regulatory regimes for new and existing
sources differ in the process by which such standards
46a
are established—and the roles played by the
respective regulatory actors. The Act assigns the EPA
the main regulatory role in specifying the new-source
pollution controls: After the EPA determines that a
particular “category of sources * * * causes, or
contributes significantly to, air pollution which may
reasonably be anticipated to endanger public health
or welfare,” it publishes regulations establishing
standards of performance for new sources in that
category. Id. § 7411(b)(1).
The process for regulating existing sources—which
raise distinct concerns about sunk costs and the
health and environmental effects of older processes—
involves more actors and steps. Regulation of a given
category of existing sources is triggered by the same
EPA air-pollution determination as for new sources.
But for existing sources the Act adopts a cooperativefederalism approach that leaves the States discretion
in determining how their State and industry can best
meet quantitative emissions guidelines established
by the EPA. See AEP, 564 U.S. at 424. Under Section
7411(d), the EPA and the States thus have distinct
but complementary roles subject to different
procedures and limitations. See 42 U.S.C. § 7411
(a)(1), (d)(1). This case concerns the mechanics of that
cooperative framework for existing sources and,
specifically, restrictions the Agency now claims the
statute imposes on regulation of the air pollutants
those sources emit.
Two provisions of Section 7411 shape the existingsource framework. Subsection (a)(1) defines a
standard of performance, by reference to the “degree
of emission limitation” that the EPA determines is
“achievable,” as:
47a
a standard for emissions of air pollutants which
reflects the degree of emission limitation
achievable through the application of the best
system of emission reduction which (taking into
account the cost of achieving such reduction and
any nonair quality health and environmental
impact
and
energy
requirements)
the
Administrator determines has been adequately
demonstrated.
42 U.S.C. § 7411(a)(1).
Subsection (d)(1), in turn, requires the
Administrator to set up a system by which willing
States can submit to the EPA “a plan which []
establishes standards of performance for any existing
source.” Id. § 7411(d)(1). Only “where [a] State fails to
submit a satisfactory plan” may the EPA step in and
directly promulgate standards of performance for
existing sources. Id. § 7411(d)(2).
Putting these two provisions together results in
what are best understood as three distinct steps
involving three sets of actors, each exercising a degree
of leeway in choice of control measures. See ACE Rule,
84 Fed. Reg. at 32,533, 32,549–32,550; Clean Power
Plan, 80 Fed. Reg. at 64,665–64,666.
First, under subsection (a)(1), the EPA determines
the “best system of emission reduction” that is
“adequately demonstrated,” taking into consideration
certain enumerated statutory criteria: cost, any
nonair quality health and environmental impacts,
and energy requirements. 42 U.S.C. § 7411(a)(1). The
Agency then issues emission guidelines that quantify
the “degree of emission limitation achievable through
the application of the best system” it has identified.
48a
Id.; 40 C.F.R. § 60.22a; see AEP, 564 U.S. at 424; EPA
Br. 21–22; ACE Rule, 84 Fed. Reg. at 32,523, 32,551.
Second, under subsection (d)(1), States issue
standards of performance for existing sources that
comply with the EPA’s emission guidelines and
“reflect” the achievable degree of emission limitation
set in those guidelines. AEP, 564 U.S. at 424; 42
U.S.C. § 7411(d)(1); 40 C.F.R. § 60.23a; see also Clean
Power Plan, 80 Fed. Reg. at 64,666. That the
standards must “reflect” the emission guidelines does
not mean that they must embody the methods EPA
contemplated in identifying the best system; rather,
the States have flexibility in determining the specifics
of the standards they issue so long as they accomplish
the “degree of emission limitation” the EPA calculated
based on its “best system.”
Third, the operators of regulated stationary sources
implement measures to ensure they will in practice
comply with the standards of performance their state
agency has established for them. See ACE Rule, 84
Fed. Reg. at 32,555. States often grant regulated
entities some discretion in how they meet those
standards. See, e.g., N.Y. COMP. CODES R. & REGS. TIT.
6 § 201-6.4(f) (2013) (describing the “operational
flexibility” afforded to Title V facility owners in New
York State to “propose a range of operating conditions
that will allow flexibility [for a facility] to operate
under more than one operating scenario”).
The issue before us arises at the first step—the
EPA’s determination of the best system of emission
reduction. In the Clean Power Plan, the Agency
determined that the best system was one that both
improved the heat rate at power plants and
49a
prioritized generation from lower-emitting plants
ahead of high-emitting plants. Clean Power Plan, 80
Fed. Reg. at 64,707. The EPA then calculated specific
emission reductions achievable through application of
that best system that it published as emission
guidelines for States. Id. Had the Clean Power Plan
gone into effect, States would then have submitted to
the EPA plans based on the Agency’s guidelines that
established standards of performance for sources in
their jurisdictions, as provided for in subsection (d)(1).
The Clean Power Plan left States flexibility in the
measures they included in their plans, so long as they
achieved a reduction in emissions at least as great as
that achieved by EPA-established quantitative
guidelines. See, e.g., id. at 64,665, 64,756–64,757,
64,734–64,737, 64,832–64,837. And it further allowed
States, at their option, to give leeway to sources to
select alternate compliance measures to make the
requisite reductions. See id. at 64,834–64,835.
Based on what it now perceives to be an express and
unambiguous textual limitation in Section 7411 that
it says the Clean Power Plan overlooked, the EPA
repealed that Plan and replaced it with the ACE Rule.
The EPA’s new reading of the statute requires the
Agency, in modeling its “best system of emission
reduction,” to consider only emission-reduction
measures that “can be applied at and to a stationary
source.” ACE Rule, 84 Fed. Reg. at 32,534; see also id.
at 32,526–32,532.
We address below the EPA’s arguments regarding
how the text and structure of Section 7411
purportedly support this limitation. That discussion
is necessarily somewhat abstract and technical. So,
50a
for starters, it is worth bringing the matter more
concretely into view.
Consider the effect the EPA’s new statutory
interpretation had on its resulting Rule. First,
because generation shifting is not, in the EPA’s view,
a measure that can be applied “at and to” any one
individual source, the ACE Rule limits the best
system of emission reduction to heat-rate
improvements alone. 84 Fed. Reg. at 32,534–32,535.
Then, instead of publishing emission guidelines
quantifying emission reductions achievable through
application of the best system, the ACE Rule
identifies what the Agency has determined are the
most effective heat-rate technologies available and a
potential range of heat-rate improvements achievable
through application of each of those technologies. Id.
32,535–32,537.
As under the Clean Power Plan, the ACE Rule
grants States flexibility in establishing standards of
performance for sources pursuant to the Agency’s
emission guidelines. Unlike the Clean Power Plan,
however, the ACE Rule does not require that the
States reach any specified minimum emission
reduction. Instead, States must merely “evaluate the
applicability of each of the candidate technologies” to
sources within their jurisdiction and report their
conclusions back to the Agency. ACE Rule, 84 Fed.
Reg. at 32,550, 32,538–32,561.
The Rule recites that regulated entities have “broad
discretion” in meeting state-established standards,
ACE Rule, 84 Fed. Reg. at 32,555, yet at the same
time the Rule deems impermissible any compliance
measure that cannot be applied at and to the source,
51a
id. The ACE Rule thereby disqualifies compliance by,
for example, burning biofuel, id. at 32,557–32,558,
which emits recently captured carbon dioxide, in
contrast to fossil fuels’ release of carbon dioxide stored
away millions of years ago. See generally Center for
Biological Diversity v. EPA, 722 F.3d 401, 405–06
(D.C. Cir. 2013).
The question here is a relatively discrete one. We
are not called upon to decide whether the approach of
the ACE Rule is a permissible reading of the statute
as a matter of agency discretion. Instead, the sole
ground on which the EPA defends its abandonment of
the Clean Power Plan in favor of the ACE Rule is that
the text of Section 7411 is clear and unambiguous in
constraining the EPA to use only improvements at
and to existing sources in its best system of emission
reduction.
The EPA contends that its current interpretation is
“the only permissible interpretation of the scope of the
EPA’s authority.” ACE Rule, 84 Fed. Reg. at 32,535.
Our task is to assess whether Section 7411 in fact
compels the EPA’s new interpretation. And because
“deference to an agency’s interpretation of a statute is
not appropriate when the agency wrongly believes
that interpretation is compelled by Congress,” Peter
Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety
Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006) (quoting
PDK Labs., Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir.
2004) (internal quotation marks omitted)), we may
not defer to the EPA’s reading if it is but one of several
permissible interpretations of the statutory language,
see Negusie v. Holder, 555 U.S. 511, 521 (2009). That
is, the “regulation must be declared invalid, even
though the agency might be able to adopt the
52a
regulation in the exercise of its discretion, if it ‘was
not based on the agency’s own judgment but rather on
the unjustified assumption that it was Congress’
judgment that such a regulation is desirable” or
required. Prill v. NLRB, 755 F.2d 941, 948 (D.C. Cir.
1985) (quoting FCC v. RCA Commc’ns, 346 U.S. 86,
96, (1953) (formatting modified)); accord Arizona v.
Thompson, 281 F.3d 248, 259 (D.C. Cir. 2002)
(quoting Prill, 755 F.2d at 948).
For the reasons explained below, Section 7411 does
not, as the EPA claims, constrain the Agency to
identifying a best system of emission reduction
consisting only of controls “that can be applied at and
to a stationary source.” ACE Rule, 84 Fed. Reg. at
32,534. The EPA here “failed to rely on its own
judgment and expertise, and instead based its
decision on an erroneous view of the law.” Prill, 755
F.2d at 956. We accordingly must vacate and remand
to the Agency “to interpret the statutory language
anew.” Peter Pan Bus Lines, 471 F.3d at 1354.
1.
Text
As just noted, Section 7411 contemplates distinct
roles for the EPA and the States in regulating existing
stationary sources. See 42 U.S.C. § 7411(a)(1)
(granting authority to the EPA to designate the best
system and determine achievable degree of emissions
reduction); id. § 7411(d)(1) (outlining the States’ role
in setting standards of performance for their sources).
Nevertheless, the EPA now contends that language in
Section 7411(a)(1) and (d)(1) “unambiguously limits
the [best system of emission reduction] to those
systems that can be put into operation at a building,
structure, facility, or installation.” ACE Rule, 84 Fed.
53a
Reg. at 32,524 (emphasis in original); see id. at 32,528;
EPA Br. 70.
In the Agency’s current view, the only pollutioncontrol methods the Administrator can consider in
selecting the “best system of emission reduction”
within the meaning of Section 7411(a) are add-ons or
retrofits confined to the level of the individual fossilfuel-fired power plant. ACE Rule, 84 Fed. Reg. at
32,524. That is so even though the record before the
EPA shows that generation shifting to prioritize use
of the cleanest sources of power is one of the most costeffective means of reducing emissions that plants
have already adopted and that have been
demonstrated to work, and that generation shifting is
capable of achieving far more emission reduction than
controls physically confined to the source. See, e.g.,
Clean Power Plan, 80 Fed. Reg. at 64,693, 64,728–
64,729; 2 J.A. 598; Grid Experts Amicus Br. 13–16. In
other words, the EPA reads the statute to require the
Agency to turn its back on major elements of the
systems that the power sector is actually and
successfully using to efficiently and cost-effectively
achieve the greatest emission reductions. See Grid
Experts Amicus Br. 22 (observing that the ACE Rule
“imposes greater abatement costs on industry than
other approaches would to achieve the same effect”).
The Clean Power Plan could not stand, the EPA
now concludes, because its consideration of
generation shifting exceeded the Agency’s narrow
authority under Section 7411’s plain text. ACE Rule,
84 Fed. Reg. at 32,526–32,527. In promulgating the
Clean Power Plan, the EPA read “system of emission
reduction” to mean “a set of measures that work
together to reduce emissions and that are
implementable by the sources themselves.” Clean
54a
Power Plan, 80 Fed. Reg. at 64,762. And it concluded
that both heat-rate improvements and generation
shifting “are components of a best system of emission
reduction for the affected [electricity generating
units] because they entail actions that the affected
[units] may themselves undertake that have the effect
of reducing their emissions.” Id. at 64,709 (internal
quotation marks omitted).
All of that is wrong, the EPA has since decided.
“[T]he Agency now recognizes that Congress ‘spoke to
the precise question’ of the scope of [42 U.S.C.
§ 7411](a)(1) and clearly precluded the unsupportable
reading of that provision asserted in the [Clean Power
Plan].” ACE Rule, 84 Fed. Reg. at 32,527. The EPA
insists that its current reading is mandated by the
statutory text.
It is the EPA’s current position that is wrong.
Nothing in Section 7411(a)(1) itself dictates the “at
and to the source” constraint on permissible
ingredients of a “best system” that the Agency now
endorses. For the EPA to prevail, its reading must be
required by the statutory text. Peter Pan Bus Lines,
471 F.3d at 1354. It fails for at least three reasons,
any of which is alone fatal.
First, the plain language of Section 7411(a)(1), the
root of the EPA’s authority to determine the best
system, announces its own limitations. Those
limitations simply do not include the source-specific
caveat that the EPA now interposes and casts as
unambiguous.
Second, there is no basis—grammatical, contextual,
or otherwise—for the EPA’s assertion that the sourcespecific language of subsection (d)(1) must be read
upstream into subsection (a)(1) to equate the EPA’s
55a
“application of the best system” with the controls
States eventually will apply “at and to” an individual
source. As the EPA at times acknowledges, the two
subsections address distinct steps in the regulatory
process, one focused on the EPA’s role and the other
focused on the States’. Any question as to which
limitations pertain to each regulatory actor cannot
reasonably be said to have been resolved by Congress
in favor of the unambiguous meaning the EPA now
advocates.
Third, even if subsections (a)(1) and (d)(1) were read
together in the way the EPA proposes, they would not
confine the EPA to designating a best system
consisting of at-the-source controls. The EPA’s entire
theory hinges on the Agency’s unexplained
replacement of the preposition “for” in “standards of
performance for any existing source” with the
prepositions “at” and “to.” Yet the statutory text calls
for standards of performance “for” existing sources.
Emission-reduction measures “for” sources may
readily be understood to go beyond those that apply
physically “at” and “to” the individual source.
Emissions trading, for example, might be a way “for”
a source to meet a standard of performance.
The shortcomings of its statutory interpretation are
more than enough to doom the Agency’s claim that
Section 7411 announces an unambiguous limit on the
best system of emission reduction. The issue is not
whether the EPA’s counterarguments to each of these
points might show its interpretation to be permissible
as an exercise of discretion. Again, the EPA has not
claimed to be exercising any such discretion here. It
insists instead that the unambiguous terms of the
statute tie its hands.
56a
After reviewing what Section 7411 clearly says
about the nature and limits of the “best system of
emission reduction” that Congress called on the EPA
to determine, we take up each of the EPA’s arguments
to show why Section 7411 does not unambiguously
support its at-the-source restriction.
a.
Section 7411(a) Defines the Best
System
The EPA acknowledges, as it must, that Section
7411(a) is the source of the EPA’s authority and
responsibility to determine the best system of
emission reduction for existing sources and set
corresponding emission guidelines. See, e.g., ACE
Rule, 84 Fed Reg. at 32,534. Indeed, that is the only
subsection in which the term “best system of emission
reduction” appears. But the EPA offers no reading of
subsection (a)(1) itself.
Section 7411(a)(1) expresses Congress’ expectation
that the EPA will study all “adequately
demonstrated” means of emission reduction. And it
directs the EPA to draw on “adequately
demonstrated” methods to determine the “best”
system to reduce emissions. Congress imposed no
limits on the types of measures the EPA may consider
beyond three additional criteria: cost, any nonair
quality health and environmental impacts, and
energy requirements. 42 U.S.C. § 7411(a)(1).
Congress largely called on the expert judgment of the
EPA to determine for a particular source category and
pollutant which already-demonstrated methods
compose the “best system.”
Because it did not set out separate definitions for
either “system” or “best,” those words take their
ordinary meanings. See Sandifer v. United States
57a
Steel Corp., 571 U.S. 220, 227 (2014). Webster’s
Dictionary offers a representative definition of
“system” contemporaneous with the Act’s adoption:
“[A] complex unity formed of many often diverse parts
subject to a common plan or serving a common
purpose.”
System,
WEBSTER’S
THIRD
NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH
LANGUAGE UNABRIDGED 2322 (2d ed. 1968). The
superlative “best” as applied to a “system of emission
reduction” plainly places a high priority on efficiently
and effectively reducing emissions. See Best,
Merriam-Webster,
https://www.merriamwebster.com/dictionary/best (last visited Jan. 11,
2021) (“excelling all others,” “offering or producing the
greatest advantage, utility, or satisfaction”).
The ordinary meanings of these terms “reflect[] an
intentional effort to confer the flexibility necessary”
for effective regulation appropriate to the context.
Massachusetts v. EPA, 549 U.S. 497, 532 (2007). As
the Supreme Court has acknowledged, “the degree of
agency discretion that is acceptable varies according
to the scope of the power congressionally conferred.”
Whitman v. American Trucking Ass’n, 531 U.S. 457,
475 (2001); see Gaughf Props., L.P. v. Commissioner,
738 F.3d 415, 424–425 (D.C. Cir. 2013); Sabre, Inc. v.
Department of Transp., 429 F.3d 1113, 1122, 1124–
1125 (D.C. Cir. 2005). Congress in Section 7411
deliberately charged the EPA with identifying the
best system of emission reduction to keep pace with
escalating threats to air quality, and, within
expressed limits, empowered it to make the
judgments how best to do so.
The Agency simply ignores how the statutory text
defines the “best system of emission reduction,”
asserting instead that definitional language does not
58a
confer regulatory authority. See, e.g., EPA Br. 58–59
(“[I]t is not Section 7411(a) (‘Definitions’) that grants
the agency authority to act.”). Section 7411(a)(1)’s
designation as a definitional provision deprives it of
standalone meaning, the EPA contends. The EPA
instead reads it as “subsidiary” to Section 7411(d),
regarding state standards of performance for existing
sources. EPA Br. 58. But Congress does indeed use
definitional provisions to confer regulatory authority.
See, e.g., Weinberger v. Bentex Pharm., Inc., 412 U.S.
645, 652–653 (1973) (holding that the statutory
definition of “new drug” confers authority upon the
FDA). That is precisely what it did in Section
7411(a)(1). See Sierra Club v. Costle, 657 F.2d 298,
321 (D.C. Cir. 1981) (describing Section 7411(a)(1) as
authorizing the EPA to determine the best system of
emission reduction and regulate accordingly); 40
C.F.R. 60.22a.
The EPA offers no support—apart from its own
newfound version of “statutory interpretation 101,”
EPA Br. 65—for ignoring how the Act itself defines
and limits the “best system” determination. Nor does
it offer any sound justification for importing language
from a different provision governing States’
“standards of performance.” The EPA’s “at and to the
source” limitation on “best system” finds no footing in
the text of Section 7411(a)(1).
b.
Section 7411(d)(1) Does Not Change
the Definition
Even taking the EPA’s argument on its own terms
does not work because Section 7411(d)(1)’s text and
statutory context get it no further. To support its
narrow reading of the EPA’s authority to determine
the “best system,” the Agency focuses on the phrase
59a
“through the application of” in Section 7411(a)(1).
That provision defines a “standard of performance” as
an emission standard that “reflects the degree of
emission limitation achievable through the
application of the best system of emission
reduction[.]” The EPA says the “application” phrase
“requires both a direct object and an indirect object.”
ACE Rule, 84 Fed. Reg. at 32,524; accord EPA Br. 66–
68. And, it continues, Congress cannot have meant to
leave its indirect object undefined. The EPA says that,
grammatically speaking, someone must apply
something (the direct object) to something else (the
indirect object). EPA Br. 115–116, 118–119. It then
picks its preferred, narrow indirect object from a
different statutory subsection and casts that object as
the only statutorily permissible choice. See 84 Fed
Reg. at 32,524.
The EPA locates an indirect object in Section
7411(d). Unlike subsection (a)(1), subsection (d)—
entitled “Standards of performance for existing
sources”—explicates an indirect object. 42 U.S.C.
§ 7411(d). Borrowing from subsection (d), then, the
EPA imports into subsection (a)(1) a limitation of the
“best system of emission reduction” to measures that
can be applied “to and at an individual existing
source—i.e., any building or facility subject to
regulation.” EPA Br. 58 (emphasis added); see also
ACE Rule, 84 Fed. Reg. at 32,534.
But the language to which the EPA points supplies
the indirect object only of “standards of performance”
adopted by States pursuant to Section 7411(d)(1), not
of the EPA’s “best system of emission reduction”
determined pursuant to Section 7411(a)(1). The latter
phrase does not even appear in Section 7411(d)(1). To
reach its preferred result, the Agency invokes surmise
60a
rather than statutory text. It insists that the
limitations on States’ standards of performance in
Section 7411(d)(1)—the second step in the regulatory
process—must be read upstream to limit the EPA’s
“best system of emission reduction” in subsection
(a)(1). Nothing in the statute so requires.
In the text, States’ standards of performance need
only “reflect” the emission guidelines (or “degree of
emission limitation achievable”) the EPA calculates
based on the “best system of emission reduction” it
determines. As laid out in the statute and explained
above,
those
state-developed
“standards
of
performance” follow on but are legally and
functionally distinct from the “best system” that the
EPA develops. The EPA is simply wrong that the
statute clearly and unambiguously requires that the
unstated indirect object of “application of the best
system of emission reduction” under Section
7411(a)(1) must be the same as the indirect object of
States’ standards of performance as stated in Section
7411(d)(1).
Neither does the grammatical rule the EPA invokes
to bridge the gap between these subsections hold up.
The crux of the EPA’s textual argument is that “the
verb ‘to apply,’ requires both a direct object and an
indirect object.” ACE Rule, 84 Fed. Reg. at 32,524;
EPA Br. 66–68. The first obvious problem is that, in
the relevant passage of Section 7411(a)(1), Congress
did not use the verb “apply,” but rather the noun
“application.” The EPA acknowledges this distinction
in passing in the ACE Rule, but dismisses it without
discussion, offering only that “‘application’ is derived
from the verb ‘to apply[.]’” 84 Fed. Reg. at 32,524.
That is, of course, true, as far as it goes. The phrase
“application of the best system of emission reduction”
61a
is what is called a nominalization, a “result of forming
a noun or noun phrase from a clause or a verb.”
Nominalization,
Merriam-Webster
Dictionary
https://www.merriamwebster.com/dictionary/nominalization (last visited
Jan. 11, 2021). Grammar assigns direct or indirect
objects only to verbs—not nouns. No objects are
needed to grammatically complete the actual
statutory phrase. So much for the grammatical
imperative.
Even if we were to take the EPA’s leap to the verb
“apply” from the noun “application” that actually
appears in the statute, the Agency comes up short.
The EPA is incorrect to insist that the verb “apply”
requires an indirect object. There is nothing
ungrammatical about the sentence “In its effort to
reduce emissions, the EPA applied the best system of
emission reduction.” The verb “apply,” like its
nominalization, may properly be used in a sentence
with or without an explicit indirect object. See Apply,
THOMAS HERBST ET AL., A VALENCY DICTIONARY OF
ENGLISH 41–42 (Ian F. Roe et al. eds., 2004) (listing
examples of grammatically correct uses with and
without direct and indirect objects).6
6
Take, for instance, the following sentences: “It appears to
violate GATT regulations, but the rules for applying the
regulations are vague and the Netherlands has so far escaped
censure”; “This information may not apply in Scotland, which
has a different legal system.” Apply, THOMAS HERBST ET AL., A
VALENCY DICTIONARY OF ENGLISH 41–42 (examples from sections
D1 and D5). Additional examples abound. See, e.g., Apply,
OXFORD ENGLISH DICTIONARY (3d ed. 2008) (def. I.9) (“Crest
bought the firm[,] and, by applying its marketing and
distribution muscle, has turned it into a $200 million category
killer.”).
62a
The EPA’s shift from nominalization to verb does
not, in any event, accomplish much. Either way, the
lack of an explicit indirect object in Section 7411(a)(1)
does not require that one be borrowed from Section
7411(d)(1). Equally logical indirect objects include, for
example, the entire category of stationary sources, or
the air pollutant to be limited. In any event, the best
system cannot reasonably be said to be
unambiguously applicable only to the indirect object
the EPA suggests.
The EPA faults the Clean Power Plan for reading
“application of” to be functionally equivalent to
“implementation of,” because “implement” “does not
require an indirect object.” EPA Br. 73. But neither
does “application.” So “application” textually supports
adoption of the Clean Power Plan just as well as
“implementation.” Again, so much for grammar
mandating the EPA’s result.
The argument fails either way, but the fact is that
Congress used the nominalization “application of” the
best system of emission reduction. A nominalization
enables the drafter to leave certain information
unspecified—namely, who is acting and where their
action is directed. See, e.g., George D. Gopen, Who
Done It? Controlling Agency in Legal Writing, Part II,
39 LITIG. 12, 12–13 (Spring 2013) (describing how
nominalizations create ambiguity). Legal writers,
including Congress, employ nominalizations all the
time. And they do so with the full awareness that
their use preserves flexibility.
Congress reasonably built in leeway for the EPA to
exercise technical expertise in applying Section 7411,
given the variety of pollution problems that it covers
and the importance of allowing States maneuvering
63a
room under the cooperative federalism scheme.
Congress may avoid specifying subjects, objects, or
other grammatical information because a degree of
adaptability suits the statutory role and purpose. One
way Congress can denote that it has delegated to an
agency’s judgment the task of filling in the on-theground details of a statutorily defined program is by
declining to dictate grammatically optional
information, see Lehrfeld v. Richardson, 132 F.3d
1463, 1465–1466 (D.C. Cir. 1998); Appalachian Power
Co. v. EPA, 135 F.3d 791, 808–810 (D.C. Cir. 1998),
including an indirect object that the rules of grammar
do not require be explicitly stated, see, e.g., Peter Pan
Bus Lines, 471 F.3d at 1353–1354.
Even if an implicit indirect object can be surmised,
there is more than one plausible candidate here, and
the statute does not unambiguously dictate the object.
There certainly is no rule—grammatical or
otherwise—that the specific indirect object must be
the one to which the EPA now points. At the least,
other contextually appropriate indirect objects of the
“best system” include the source category or the
emissions. The EPA has failed to establish that the
sole and unambiguous indirect object must be the
individual source. The EPA, of course, “may fill the
gap[s] the Congress left,” and any such “regulation is
entitled to deference.” Gaughf Props., 738 F.3d at 424;
see also Appalachian Power, 135 F.3d at 811–812. But
in the ACE Rule and in its briefing here, the EPA has
assiduously denied the existence of any gap at all.
That was error.
c.
EPA’s Reading Itself Falls Short
The third and equally fatal flaw in the EPA’s
textual analysis is its unexplained substitution of the
64a
prepositions “at” and “to” where the text it would have
us borrow from subsection (d)(1) actually says “for” in
referencing “standards of performance for any
existing source.” See, e.g., ACE Rule, 84 Fed. Reg. at
32,534. As we do with any words enacted by Congress,
we must give effect to the preposition it chose. Cf.
Telecommunications Res. & Action Ctr. v. FCC, 801
F.2d 501, 517–518 (D.C. Cir. 1986) (finding decisive
Congress’ use of the preposition “under” instead of
“by”). The word Congress actually used—”for” the
source—lacks the site-specific connotation on which
the EPA’s case depends.
In its brief, the EPA presents the compound
construction it says inexorably follows from reading
text from subsection (a)(1) together with text from
subsection (d)(1), and says it is restricted to
determining a “best system of emission reduction for
any building, structure, facility, or installation.” EPA
Br. 56 (formatting modified) (quoting 42 U.S.C.
§ 7411(a)(1), (a)(3), (a)(6), (d)(1)). The Agency then
asserts that “the natural reading” of its proffered
construction is that “the methods planned would be
‘for’ and act at the level of the singular, individual
source.” Id. at 62 (emphasis added).
In the preamble to the ACE Rule, the EPA went
further, fully substituting the prepositions “at” and
“to” in place of the preposition “for” that actually
appears in the text the Agency says must be borrowed
from subsection (d)(1). ACE Rule, 84 Fed. Reg. at
32,534. It relies on that further substitution to insist
that the best system of emission reduction designated
by the EPA must be limited to controls “that can be
applied at and to,” not “for,” “a stationary source.” Id.;
see also id. at 32,524 (“at”); id. at 32,532, 32,534,
32,556 (“at and to”); id. at 32,555, 32,529 (“to and at”);
65a
id. at 32,543 (“at or to”); id. at 32,526 n.65 (“to or at”);
EPA Br. 4, 58, 74. But nowhere in the ACE Rule does
the EPA explain this swap of one preposition for two
meaningfully more restrictive ones. See, e.g., 84 Fed.
Reg. at 32,523–32,524, 32,534–32,535.
The EPA rewrites rather than reads the plain
statutory text. Section 7411(a)(1), even if crossreferenced to subsection (d)(1) in the way the EPA
says it must be, calls for the Agency to determine “the
degree of emission limitation achievable through the
application of the best system of emission reduction
for any existing source”—not the application of the
best system “at” and “to” such a source. And the word
“for” lacks the physical on-site connotation that is so
critical to the EPA’s reading of the statutory text.
Indeed, a standard of performance or system of
emission reduction “for” a source just means that the
system is “with regard or respect to” or “concerning”
the source. See For, OXFORD ENGLISH DICTIONARY (2d
ed. 1989) (def. 26). In contrast, “at” and “to” tend to
connote direct physical proximity or contact. See At,
OXFORD ENGLISH DICTIONARY (3d ed. 2008) (def. 1.a)
(“usually determining a point or object with which a
thing or attribute is practically in contact”); To,
OXFORD ENGLISH DICTIONARY (3d. ed 2008) (def. 5.a)
(“Into (or in) contact with; on, against”). A best system
“for” a source thus might entail a broader array of
controls that concern but are not immediately
physically proximate to the source—such as, for
instance, generation shifting.
***
In sum, the straitened vision of the EPA’s best
system that the Agency espies in Section 7411 is
simply not supported by the text, let alone plainly and
66a
unambiguously required by it. The Act calls on the
EPA to determine the degree of emission limitation
achievable through “application of the best system of
emission reduction” without specifying the system’s
indirect object, and uses the preposition “for” when it
calls on the States to develop “standards of
performance for existing sources.” 42 U.S.C.
§ 7411(a), (d). It simply does not unambiguously bar a
system of emission reduction that includes generation
shifting.
The EPA’s position depends critically on words that
are not there. It erroneously treats a nominalization
of a verb as requiring an indirect object, collapses two
separate functions and provisions of the Act in order
to supply a borrowed indirect object, does so without
any evidence that the borrowed indirect object was
what Congress necessarily intended, and narrowly
focuses the Agency’s authority on that indirect object
by using a different preposition from the one that
actually appears in the borrowed text. Each of those
interpretive moves was a misstep. Read faithfully,
Section 7411(a)(1) lacks the straitjacket that the EPA
imposes.
Policy
priorities
may
change
from
one
administration to the next, but statutory text changes
only when it is amended. The EPA’s tortured series of
misreadings of Section 7411 cannot unambiguously
foreclose the authority Congress conferred. The EPA
has ample discretion in carrying out its mandate. But
it may not shirk its responsibility by imagining new
limitations that the plain language of the statute does
not clearly require.
2.
Statutory History, Structure, and
Purpose
67a
Even looking beyond the text does nothing to
substantiate the EPA’s proposed reading of Section
7411. See Kiewit Power Constructors Co. v. Secretary
of Labor, 959 F.3d 381, 395 (D.C. Cir. 2020)
(Henderson, J.) (“To discern the Congress’s intent, we
generally examine the statutory text, structure,
purpose and its legislative history.”) (quoting Lindeen
v. SEC, 825 F.3d 646, 653 (D.C. Cir. 2016)). These
other tools of statutory interpretation underscore the
flexibility of Section 7411(a)’s text, not the cabined
reading the EPA proposes.
We begin by acknowledging Section 7411’s role
within the Clean Air Act. It is a catch-all, intended to
ensure that the Act achieves comprehensive pollution
control by guaranteeing that there are “no gaps in
control activities pertaining to stationary source
emissions that pose any significant danger to public
health or welfare.” S. REP. NO. 91-1196, at 20 (1970).
In other words, Section 7411 is intended to reach
pollutants that do not fit squarely within the ambit of
the Act’s other regulatory provisions. It authorizes
regulation of pollutants not controlled by the other
programs under the Act. The EPA does not contest
that greenhouse gases emitted by powerplants fit that
description.
The Agency points to statutory structure and
history for evidence that Congress restricted the “best
system of emission reduction” under Section 7411(a)
to physical controls that are applied “at and to” an
existing source. But the history and structure only
confirm what the text shows: Nothing the EPA has
identified suggests that Congress in Section 7411
meant to so constrict what might be part of a “best
system of emission reduction.”
68a
The Congress that enacted Section 7411 was well
aware that what a “best system” might comprise is
necessarily dynamic and evolving. Congress’ main
limitation was that the “best system” selected by the
EPA must be “adequately demonstrated.” 42 U.S.C.
§ 7411(a)(1). And it stated three other key criteria—
cost, nonair quality health and environmental impact,
and energy requirements—as factors the EPA must
take into account. See id. With those parameters in
place, Congress largely left the identification of the
best system of emission reduction to the Agency’s
expert scientific judgment.
Consider cues from the Clean Air Act as a whole. In
contrast to other systemic benchmarks in the Act,
Section 7411(a)(1)’s prescription of the “best system of
emission reduction” is striking for its paucity of
restrictive language. References to more specific
categories of emission-reduction tools appear
elsewhere in the Act. A provision governing the
Nitrogen Oxides Emissions Reduction Program, for
example, directs the Administrator to establish limits
based on the “degree of reduction achievable through
the retrofit application of the best system of
continuous emission reduction, taking into account
available technology[.]” 42 U.S.C. § 7651f(b)(2)
(emphasis added). The Act’s regional haze program is
likewise specific in its call for use of the “best
available retrofit technology.” Id. § 7491(b)(2)(A),
(g)(2). The specificity of those other provisions
highlights the comparative generality of Section
7411(a)’s reference to the “best system of emission
reduction.”
The sole provision the EPA highlights to shore up
its at-the-source theory only further undermines it.
The EPA points to the Act’s Prevention of Significant
69a
Deterioration (PSD) program, 42 U.S.C. § 7475, and
its requirement of controls at least as stringent as
limits set under Section 7411, see id. § 7479(3), to
argue that that “the interrelationship between the
two types of standards”—the best system of emission
reduction and the best available control technology—
”is only intelligible if the standards are in pari
materia.” EPA Br. 85. But the distinct roles of the two
provisions make clear that the limits in Section 7475
have no place in Section 7411(a)(1).
To qualify for a permit under the PSD program
before a source may be built or modified, an applicant
must affirm that it will apply to each source the “best
available control technology,” or BACT, to limit its
emissions. 42 U.S.C. § 7475(a)(4). The statute defines
BACT as the degree of control that the permitting
agency “determines is achievable for such [major
emitting] facility through application of production
processes and available methods, systems, and
techniques, including fuel cleaning, clean fuels, or
treatment
or
innovative
fuel
combustion
techniques[.]” Id. § 7479(3). The statute further
provides that BACT cannot “result in emissions of any
pollutants which will exceed the emissions allowed by
any applicable standard established pursuant to
[S]ection 7411 or 7412 of this title.” Id. § 7479(3). The
listed BACT options, EPA observes, are all physically
applicable to the source unit. EPA Br. 85.
But the EPA ignores a critical detail: The BACT
requirement applies only to newly constructed or
modified sources. See Alaska Dep’t of Env’t
Conservation v. EPA, 540 U.S. 461, 472 (2004)
(describing 42 U.S.C. § 7475). Any standard
established under Section 7411 and also “applicable,”
per the statutory cross-reference, to a facility
70a
regulated for prevention of significant deterioration
under Section 7475 would be a standard for new or
modified sources established pursuant to Section
7411(b). The BACT requirement does not apply to the
existing sources covered by the provision at issue
here, Section 7411(d). See New York v. EPA, 413 F.3d
3, 13 (D.C. Cir. 2005). Even if Section 7475 tracks
Section 7411(b), there is simply no conflict between,
on one hand, requiring new source construction to
employ the newest and best at-the-source control
technologies and, on the other, empowering the EPA
to look to a wider range of ways to reduce emissions
when it regulates older, existing sources.
The anomaly of looking to Section 7475(a)(4) to
confine Section 7411 is highlighted by the fact that
BACT permits are required only in so-called
“attainment” areas of the country. See 42 U.S.C.
§§ 7407, 7472, 7474. We are unpersuaded that
Congress buried a limit on the EPA’s Section 7411
authority to address pollution from existing sources
throughout the Nation by making reference to a floor
for certain new facilities in certain parts of the
country.
The statutory history of the BACT requirement
further demonstrates that Congress did not intend
that it weaken Section 7411(d). Sections 7475 and
7479 were enacted in the 1977 Clean Air
Amendments, Pub. L. No. 95-95, §§ 165, 169, 91 Stat.
685, 735–742 (Aug. 7, 1977). In the very same
legislation, Congress restricted the best system of
emission reduction for new sources to technological
methods while explicitly allowing the best system for
existing sources to include non-technological methods.
§ 109(c)(1)(A), 91 Stat. at 700. If Congress wanted to
confine Section 7411 to at-the-source technologies, it
71a
would have done so directly rather than hiding such
a substantial limitation in an implicit inference from
a more remote statutory provision.
The Clean Air Act’s legislative history, including
the history of the 1970 enactment of Section 7411 and
the 1977 and 1990 amendments, further shows that
Congress never imposed on the “best system of
emissions reduction” the constraints the EPA now
advocates. Before Congress settled on the best-system
language it enacted in 1970, the Senate bill proposed
to authorize the EPA to set standards for stationary
sources “reflect[ing] the greatest degree of emission
control” achievable through “the latest available
control technology, processes, operating methods, or
other alternatives.” S. 4358, 91st Cong. § 6 (1970).
The phrase “other alternatives” was understood to
encompass “[t]he maximum use of available means of
preventing and controlling air pollution”—without
limitation to technological or at-the-source means. S.
REP. NO. 91-1196, at 16. The Senate believed that was
“essential” to limit emissions from both new and
existing sources. Id. The House, for its part, proposed
an initial version of Section 7411 that would have
“require[d] new sources to ‘prevent and control [their]
emissions to the fullest extent compatible with the
available technology and economic feasibility,’” H.R.
17255, 91st Cong. § 5 (1970), but included no
provision regarding the regulation of existing sources.
As enacted, Section 7411 simply requires that the
EPA identify as its benchmark for existing sources
the “best system of emission reduction.” 42 U.S.C.
§ 7411(a)(1). Nothing that the EPA identifies or that
we discern in the relevant history shows the enacting
Congress myopically “focused on steps that can be
taken at and by individual sources to reduce
72a
emissions.” EPA Br. 69. And of course, even if
Congress at that time was only thinking of at-thesource controls, the EPA was well aware that
environmental problems and their solutions rapidly
evolve. At the end of the day, it is the statutory text
that governs. See Bostock v. Clayton County, 140 S.
Ct. 1731, 1738 (2020).
Congress has consistently relied on the EPA’s
expert judgment in identifying the “best system” for
existing sources. Its action in making, and then
undoing, a limiting amendment to Section 7411’s
“best system of emission reduction” just for new and
modified sources—not existing sources—underscores
the point. First, Congress in 1977 amended the
standard for new sources to require use of “the best
technological system of continuous emission
reduction,” but did not make any parallel change to
the standard for existing sources to add those
“technological” and “continuous” limitations. Clean
Air Amendments Act of 1977, Pub. L. No. 95-95,
§ 109(c)(1)(A), 91 Stat. 685; see also id. at 700 (adding
Section 7411(a)(1)(C)). Then, in 1990, Congress again
amended Section 7411, this time to remove those
additional limitations, reverting for new sources to
the “best system of emission reduction” that had
applied all along to existing sources. Clean Air Act
Amendments of 1990, Pub. L. No. 101-549, § 403(a),
104 Stat. 2399, 2631 (1990).
The amendment and re-amendment of the newsource “best system” language emphasizes 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. And it shows that Congress had always
73a
understood the existing-source “best system”
language to go beyond the technological restrictions
that it briefly imposed on the parallel new source
provision.
The ACE Rule is the first EPA rule to read the
statute as so strictly boxing in the Agency. Although
agency practice cannot directly show whether
Congress had a specific intent on the matter in
question, it is notable that the regulators closest to
the issue never before saw what the EPA now insists
is obvious on the face of Section 7411.
Over the last half century, no prior Administrator
read the Act to foreclose from consideration in the
“best system” all but at-the-source means of emission
control. Rather, the EPA has exercised latitude to
consider any adequately demonstrated approach to
reducing harmful pollutants from existing source
categories that it believed met the cost, gridreliability and other statutory criteria. 42 U.S.C.
§ 7411(a)(1). Where the characteristics of the source
category and the pollutant at issue point to emissions
trading programs or production shifts from higher- to
lower-emitting sources as components of the “best
system,” the EPA has in the past consistently
concluded that it had the authority to consider them.
During the administration of President George W.
Bush, for example, the EPA adopted the Clean Air
Mercury Rule, 70 Fed. Reg. 28,606 (May 18, 2005),
which included a mercury cap-and-trade program as
a component of its best system of emissions reduction
for existing coal-fired power plants, see id. at 28,619–
28,620; id. at 28,617 (“EPA has determined that a
cap-and-trade program based on control technology
available in the relevant timeframe is the best system
74a
for reducing [mercury] emissions from existing coalfired Utility Units.”).7
The EPA’s Clinton-era regulation of nitrogen oxide
emissions from municipal solid waste combustors
likewise relied on Section 7411(d), together with the
EPA’s waste-management authority under Section
7429, to authorize States to include emissions-trading
programs in their State Plans. 40 C.F.R.
§ 60.33b(d)(2). Under state standards of performance
designed to meet guidelines the EPA derived from its
“best system,” regulated entities were permitted to
average the emission rates of multiple units within a
single plant as well as trade emission credits with
other plants. Municipal Waste Combustors Rule, 60
Fed. Reg. 65,387, 65,402 (Dec. 19, 1995).
The EPA’s efforts to distinguish those other Section
7411(d)(1) programs do not work. The EPA claims
that the Mercury Rule did not primarily rely on a capand-trade or dispatch shifting program, but rather
that the best system rested on a “combination of a capand-trade mechanism and * * * the technology needed
to achieve the chosen cap level.” EPA Br. 72 n.20
(quoting ACE Rule, 84 Fed. Reg. at 32,526). To be
clear, that sort of hybrid best system, involving both
on-site and system-wide elements, is precisely what
7
We vacated the Mercury Rule for unlawfully delisting
mercury-emitting electric utility steam generating units from
the Section 7412 Hazardous Air Pollutants list. See New Jersey
v. EPA, 517 F.3d 574, 582–584 (D.C. Cir. 2008). Because we held
those mercury sources must be listed, and because Section 7411
cannot be used to regulate air pollutants listed under Section
7412, the existing-source rule the EPA had adopted under
Section 7411(d) to control those same mercury emissions from
power plants failed as well.
75a
the EPA now insists is unprecedented and expressly
barred by the statute’s text.
Lest there be any doubt that the Mercury Rule’s
best system rested in significant part on the cap-andtrade mechanism, we note that the EPA in fact
approved state implementation plans that adopted
none of the on-site controls included in the best
system and instead relied entirely on implementation
of the best system’s cap-and-trade program. See, e.g.,
Notice of Intent, 32 La. Reg. 869, 870 (May 20, 2006)
(proposing an implementation plan solely reliant on
cap-and-trade); Approval and Promulgation of State
Plan for Designated Facilities and Pollutants:
Louisiana, 72 Fed. Reg. 46,188, 46,188 (Aug. 17, 2007)
(approving Louisiana’s proposal on the basis that it
“would meet [Clean Air Mercury Rule] requirements
by participating in the EPA administered cap-andtrade program addressing [mercury] emissions”).
Contrary to the EPA’s assertions, e.g. EPA Br. 4, the
Agency plainly has previously embraced beyond-thesource measures of emission reduction as authorized
by the statutory text.
The EPA’s invocation of its own past practice under
Section 7411 falls wide of the mark. It errs in insisting
that “the more than seventy Section 7411 rules”
promulgated for “roughly forty-five years” somehow
reflect a consistent adherence to the Agency’s new
view. EPA Br. 4, 88; see id. at 37–38, 88–89; ACE
Rule, 84 Fed. Reg. at 32,526. Almost all of the rules to
which it refers are irrelevant to the issue at hand.
They were for new sources, subject to Section 7411(b),
not existing sources under Section 7411(d). See 84
Fed. Reg. at 32,526.
76a
Older facilities that may be capable only of
outdated, more polluting methods of generation
present different regulatory challenges than new
sources. As discussed above in connection with the
EPA’s reference to BACT requirements for newsource permitting under the PSD program, a
requirement that owners and operators constructing
new facilities apply state-of-the-art, lowest-emitting
equipment and methods “at and to the source” might
well be the best available means of reducing
emissions for that source category. The same cannot
be said for existing sources. A central error of the ACE
Rule is that it fails to appreciate that difference. It
identifies a handful of measures applicable to and at
the source that the EPA suggests may achieve slight
reductions. But industry practice demonstrates that
better, lower-emitting, reliable, and cost-effective
systems for reducing emissions from existing power
plants typically also shift generation away from
higher-emitting, fossil-fuel-fired capacity when
renewable or lower- or zero-emitting generation is an
available substitute.
Because the best, most efficient and effective
systems for controlling emissions from existing
sources ordinarily differ from the best systems for
new sources, they are regulated via a distinct
statutory track. Only the Section 7411(d) rules are
relevant to the EPA’s prior understanding of its
authority to regulate existing sources. Those prior
EPA rules contradict the EPA’s position here. Before
its about-face in the ACE Rule, all three of the
Agency’s most recent Section 7411(d) rules included
emissions trading or generation shifting to loweremitting sources. See Clean Power Plan, 80 Fed. Reg.
at 64,755–64,756; Clean Air Mercury Rule, 70 Fed.
77a
Reg. at 28,606, 28,617, 28,619–28,620; Municipal
Waste Combustors Rule, 60 Fed. Reg. 65,387, 65,402
(Dec. 19, 1995).
To put the EPA’s mistaken reading of Section 7411
in perspective, consider how it effectively relegates
federal regulators back to the sidelines where they
stood before Congress overhauled the Clean Air Act in
1970. The federal government had until then done
little more than provide information and guidance to
cheer on States’ air-quality regulators. See Train v.
NRDC, 421 U.S. 60, 64 (1975) (noting that the States’
response to earlier iterations of the Act focused on
information and incentives had been “disappointing”).
With the 1970 amendments, a virtually unanimous
Congress dramatically strengthened the federal
government’s hand in combatting air pollution. See
Train, 421 U.S. at 64 (“These Amendments sharply
increased federal authority and responsibility. * * *
The difference * * * was that the States were no longer
given any choice as to whether they would meet th[eir
statutory] responsibility.”); cf. EPA v. EME Homer
City Generation, LP, 572 U.S. 489, 497 (2014) (noting
this progression toward “increasing[ly] rigor[ous]”
federal regulation of interstate air pollution).
Congress did so “to protect and enhance the quality of
the Nation’s air resources so as to promote the public
health and welfare and the productive capacity of its
population[.]” 42 U.S.C. § 7401(b)(1). The EPA’s
newly enhanced authority was “designed to provide
the basis” for “a massive attack on air pollution.” S.
REP. NO. 91-1196, at 1. Section 7411(d) ensured that
there would be “no gaps in control activities
pertaining to stationary source emissions that pose
any significant danger to public health or welfare.” Id.
at 20.
78a
Describing the Act shortly before its passage,
Republican Senator John Cooper explained that the
“philosophy of the bill abandons the old assumption of
requiring the use of only whatever technology is
already proven and at hand” and instead “set[s] out
what is to be achieved.” 116 CONG. REC. 32,919 (1970).
To that end, the Act did not finely detail specific
approaches to enumerated sources or types of air
pollution. See 116 CONG. REC. 32,901–32,902 (1970)
(statement of Sen. Muskie). Congress chose instead to
entrust the EPA with flexible powers to craft effective
solutions. Only by doing so could air quality
regulation hope to reflect developing understandings
of escalating problems and bring to bear as-yetunseen solutions.
American air quality is the proof of that approach.
The EPA has worked closely with industry, States,
and the public to develop the world’s most nimble,
responsive, and effective regime of air pollution
regulation. For example, in the half-century since the
1970 Act, “the combined emissions of * * * six key
pollutants regulated under the National Ambient Air
Quality Standards dropped by 73 percent” between
1970 and 2017. EPA Releases 2018 Power Plant
Emissions Demonstrating Continued Progress, EPA
(Feb.
20,
2019),
https://www.epa.gov/newsreleases/epa-releases-2018power-plant-emissions-demonstrating-continuedprogress (last visited Jan. 11, 2021).
The EPA’s new reading of Section 7411 would
atrophy the muscle that Congress deliberately built
up. The EPA asserts it lacks authority to curb a
pollutant that the Agency itself has repeatedly
deemed a grave danger to health and welfare but that
eludes effective control under other provisions of the
79a
Act. We do not believe that Congress drafted such an
enfeebled gap-filling authority in Section 7411.
***
In sum, traditional tools of statutory interpretation
reveal nothing in the text, structure, history, or
purpose of Section 7411 that compels the reading the
EPA adopted in the ACE Rule.
3. Compliance Measures
In the ACE Rule, the EPA also limited the
measures that sources may use to comply with the
States’ standards of performance set under Section
7411(d). Recognizing that sources generally have
“broad discretion” in how they comply with state
standards, 84 Fed. Reg. at 32,555, the EPA
nonetheless categorically excluded two specific
measures from the States’ consideration: averaging
and trading, and biomass co-firing. It did so on the
ground that these measures do not meet two criteria
it determined were required of compliance measures:
that they be (1) “capable of being applied to and at the
source” and (2) “measurable at the source using data,
emissions monitoring equipment or other methods to
demonstrate compliance[.]” Id. The EPA identified
these criteria on account of “both legal and practical
concerns[.]” Id.
The Agency’s legal concern was that non-sourcespecific compliance measures “would be inconsistent
with the EPA’s interpretation of the” best system of
emission reduction as itself plant-specific. ACE Rule,
84 Fed. Reg. at 32,555–32,556. In that way, the EPA
extended to States’ compliance measures the same
incorrect textual interpretation of the Clean Air Act
that underlay its determination of what best systems
may include—namely, that the system must be one
80a
that can be applied to and at the individual source.
The EPA reasoned that “implementation and
enforcement of such standards should correspond
with the approach used to set the standard in the first
place.” Id. at 32,556.
The Agency’s practical concern was that
compliance measures that are not source-specific
could result in “asymmetrical regulation[,]” meaning
the stringency of standards could vary across sources.
ACE Rule, 84 Fed. Reg. at 32,556. It argues here that
such regulation “could have significant localized
adverse consequences” in the case of many pollutants
regulated under Section 7411(d). EPA Br. 240.
Because we hold that the EPA erred in concluding
Section 7411 unambiguously requires that the best
system of emission reduction be source specific, we
necessarily reject the ACE Rule’s exclusion from
Section 7411(d) of compliance measures it
characterizes as non-source-specific. The Agency tied
that exclusion to its flawed interpretation of the
statute as unambiguously confined to measures taken
“at” individual plants, so it falls with that decision.
ACE Rule, 84 Fed. Reg. at 32,555–32,556.
The statute says nothing about the measures that
sources may use to comply with the standards States
establish under Section 7411(d), and the EPA cites no
separate authority that would require compliance
measures to be source-specific, or that Congress
meant to so hogtie the States in devising standards of
performance. Regardless of any policy-based reasons
the EPA offers for limiting compliance measures,
then, its decision to exclude averaging and trading
and biomass co-firing is foreclosed by its legally
erroneous starting point.
81a
Neither can the EPA’s policy-based reasons sustain
its decision to exclude its disfavored non-sourcespecific compliance measures in the context of carbon
dioxide emissions. Apart from its statutory
interpretation, the EPA’s only ground for excluding
those compliance measures is the Agency’s stated
concern to avoid asymmetrical regulation. ACE Rule,
84 Fed. Reg. at 32,556. It argues that asymmetrical
regulation “could have significant localized adverse
consequences for public health and the environment.”
EPA Br. 240. The Agency points to the case of
fluoride—another pollutant regulated under Section
7411(d)—to note that allowing sources to meet state
standards of performance by averaging emissions
across units or between facilities “could cause serious
environmental impacts on local communities where
pollution was under-controlled, causing localized
damage.” Id. In light of such considerations, the EPA
worried that a system of averaging and trading
“would undermine the EPA’s determination” of the
best system of emission reduction, leading to the sort
of localized consequences the system is designed to
guard against. ACE Rule, 84 Fed. Reg. at 32,557.
But that point does not support the EPA’s
categorical rule, let alone prove that the statute
unambiguously compels the Agency’s reading. Unlike
pollutants such as fluoride, carbon dioxide emissions
do not pose localized concerns at the site of emission.
Whereas the EPA might determine that the best
system for reducing fluoride emissions is one that can
be applied to and at the source, and it would be
reasonable for the EPA in turn to limit compliance
measures to correspond with such a “best system,” the
same cannot be said of carbon dioxide. Indeed, the
EPA recognizes that “CO2 is a global pollutant with
82a
global effects[,]” meaning “there may be few direct
and area public health consequences from
asymmetrical regulation of carbon dioxide within a
State.” EPA Br. 239.
The Agency
defends its concern
about
asymmetrical regulation in the context of carbon
dioxide emissions with the unsupported contention
that an interpretation of Section 7411(d) that allowed
non-source-specific compliance measures “would not
be limited to carbon dioxide alone.” EPA Br. 240. But
there is no reason to conclude, and petitioners do not
argue, that the statute requires the EPA to permit
non-source-specific compliance measures for every
pollutant it regulates under Section 7411. The statute
is not so rigid as EPA supposes. In fact, Section 7411
itself does not textually restrict the States’ choice of
compliance measures for their sources at all. See also
Power Cos. Pet’rs Br. 25–26; Biogenic Pet’r Br. 16–17.
Even if the EPA might reasonably limit compliance
measures in specific situations based on its
determination of the best system for reducing
particular types of emissions with localized
consequences, the statute imposes no requirement
that such limitations be uniform across the regulation
of different pollutants.
In sum, the EPA’s conclusion on compliance by
sources rises and falls with its legally flawed
interpretation of the statute. The Agency’s practical
concern about asymmetrical regulation could not, in
any event, support the exclusion of biomass co-firing
or averaging and trading in the particular context of
carbon dioxide emission regulation.
83a
B. THE MAJOR QUESTIONS DOCTRINE
The EPA also references the so-called “major
questions” doctrine in defense of its statutory
interpretation and the ACE Rule. 84 Fed. Reg. at
32,529. But that doctrine does not confine the EPA to
adopting solely emission standards that can be
implemented physically to and at the individual
plant.
The Supreme Court has said in a few cases that
sometimes an agency’s exercise of regulatory
authority can be of such “extraordinary” significance
that a court should hesitate before concluding that
Congress intended to house such sweeping authority
in an ambiguous statutory provision. See King v.
Burwell, 576 U.S. 473, 485–486 (2015); Gonzales v.
Oregon, 546 U.S. 243, 262, 266–267 (2006); FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120,
159 (2000); accord Utility Air Regulatory Group v.
EPA (UARG), 573 U.S. 302, 324 (2014); see also MCI
Telecommc’ns v. AT&T, 512 U.S. 218, 231 (1994).
Where there are special reasons for doubt, the
doctrine asks whether it is implausible in light of the
statute and subject matter in question that Congress
authorized such unusual agency action. See, e.g.,
UARG, 573 U.S. at 324 (considering whether the
challenged rule would “bring about an enormous and
transformative expansion in EPA’s regulatory
authority without clear congressional authorization”);
Brown & Williamson, 529 U.S. at 161 (holding that
the FDA could not regulate tobacco because it was
“plain that Congress ha[d] not given the FDA the
authority that it s[ought] to exercise”).
In the ACE Rule, the EPA stated that, while its
interpretation of Section 7411 did not depend on the
84a
“major question[s] doctrine[,]” the Agency believed
that “that doctrine should apply here[.]” 84 Fed. Reg.
at 32,529. The Agency reasoned that the Clean Power
Plan would have had “billions of dollars of impact on
regulated parties and the economy,” would have
“affected every electricity customer[,]” was “subject to
litigation involving almost every State,” and would
have upset the balance of regulatory authority
between federal agencies and the States. Id. For those
reasons, the Agency concluded that the “interpretive
question raised”—whether the “best system of
emission reduction” can include measures other than
improvements to and at the physical source—”must
be supported by a clear[]statement from Congress.”
Id. That was incorrect.
1. The EPA’s Regulatory Mandate
Unlike cases that have triggered the major
questions doctrine, each critical element of the
Agency’s regulatory authority on this very subject has
long been recognized by Congress and judicial
precedent.
Most importantly, there is no question that the
regulation of greenhouse gas emissions by power
plants across the Nation falls squarely within the
EPA’s wheelhouse. The Supreme Court has ruled
specifically that greenhouse gases are “air pollutants”
covered by the Clean Air Act. Massachusetts v. EPA,
549 U.S. at 532. More to the point, the Court has told
the EPA directly that it is the Agency’s job to regulate
power plants’ emissions of greenhouse gases under
Section 7411. “Congress delegated to EPA the
decision whether and how to regulate carbon-dioxide
emissions from powerplants” through a “§ 7411
rulemaking[.]” AEP, 564 U.S. at 426–427. The
85a
separate opinion agrees. See Separate Op. at 14
(“Does the Clean Air Act direct the EPA to make our
air cleaner? Clearly yes. Does it require at least some
carbon reduction? According to Massachusetts v. EPA,
again yes.”).
On top of that, the issuance of regulations
addressing greenhouse gas pollution is mandatory
under the statute because of longstanding
endangerment findings. In Massachusetts v. EPA, the
Supreme Court directed the EPA either to make an
endangerment finding under the statute for
greenhouse gas pollution, or to explain why it would
not do so. 549 U.S. at 532–535. The EPA complied. For
now more than a decade—from 2009 to the present
day in the ACE Rule itself—the EPA has consistently
and repeatedly recognized the serious danger that
greenhouse gas pollution poses to human health and
welfare. See ACE Rule, 84 Fed. Reg. at 32,533; New
Source Rule, 80 Fed. Reg. at 64,530–64,531; 2009
Endangerment Finding, 74 Fed. Reg. at 66,496–
66,497. By statute, that finding triggers a mandatory
duty on the EPA to regulate greenhouse gas pollution.
42 U.S.C. § 7521(a)(1) (motor vehicle emissions); 42
U.S.C. § 7411(b) (stationary sources that contribute
significantly to such dangerous pollution).8
As discussed below with respect to the challenge brought
by the Coal Petitioners (infra at III.A.1), the legal basis for the
EPA’s regulation of greenhouse gas emissions from existing
power plants in both the Clean Power Plan and the ACE Rule
was the Agency’s prior 2015 decision to issue standards of
performance for carbon dioxide emitted from new power plants.
That decision, in turn, was based on the Agency’s recognition
(since the 1970s) that fossil-fuel-fired power plants contribute
significantly to air pollution, which “may reasonably be
anticipated to endanger the public health or welfare.” 42 U.S.C.
§ 7411(b)(1)(A); see Air Pollution Prevention and Control: List of
8
86a
So the EPA has not just the authority, but a
statutory duty, to regulate greenhouse gas pollution,
including specifically from power plants.
In that way, the pollution measures in the Clean
Power Plan do not fit the major-question mold of prior
cases. For example, in Brown & Williamson, the
major question was whether the agency had authority
to regulate tobacco at all. There, the Supreme Court
ruled that there was “reason to hesitate” before
concluding that the provisions of the Food, Drug, and
Cosmetic Act covering restricted devices, Brown &
Williamson, 529 U.S. at 134 (citing 21 U.S.C.
§ 360j(e)), gave the Food and Drug Administration the
authority to regulate tobacco given its “unique
political history” and its role as a “significant portion
of the American economy.” Id. at 159. The Court
reasoned based on the overall drug-regulatory
scheme, as well as Congress having “created a distinct
regulatory scheme for tobacco products,” that
Congress “could not have intended to delegate a
decision of such economic and political significance to
an agency in so cryptic a fashion.” Id. at 159–160.
That question of agency authority to regulate the
matter in question was absent for the Clean Power
Plan. In fact, the Supreme Court in Massachusetts v.
Categories of Stationary Sources, 36 Fed. Reg. 5931, 5931
(March 31, 1971); Air Pollution Prevention and Control: Addition
to the List of Categories of Stationary Sources, 42 Fed. Reg.
53,657, 53,657 (Oct. 3, 1977). The EPA also determined in 2015
that power plants contribute significantly to greenhouse gas
pollution in particular. See New Source Rule, 80 Fed. Reg. at
64,531. That determination, combined with the determination
that greenhouse gases are dangerous to public health and
welfare, triggers a mandatory duty to regulate under Section
7411(b)(1)(A).
87a
EPA rejected the analogy between regulation of
greenhouse gases as a pollutant under the Clean Air
Act and regulation of tobacco as a drug under the
Food, Drug, and Cosmetic Act. 549 U.S. at 530–531.
Treating tobacco as a drug would have been wholly
novel, requiring the agency to ban virtually all
tobacco products—a result the Court suspected
Congress did not intend. Id. at 531; Brown &
Williamson, 529 U.S. at 143. By contrast, the
Supreme Court explained, greenhouse gases are air
pollutants that fall squarely within the Clean Air
Act’s coverage, and the Act would subject such
pollutants, if the agency makes the necessary
findings, only to regulation, not prohibition.
Massachusetts v. EPA, 549 U.S. at 531.
The Clean Air Act also contains its own limits on
regulation, like mandating that the EPA take into
account such factors as available technology and the
cost of compliance. Id. (citing 42 U.S.C. § 7521(a)(2));
see also 42 U.S.C. § 7411(a)(1) (requiring
consideration of health and environmental impacts,
energy requirements, and cost). In that way, Congress
designed the Clean Air Act’s processes for regulating
air pollution to adapt to “changing circumstances and
scientific
developments”
without
imposing
unreasonable technological or financial burdens on
industry. Massachusetts v. EPA, 549 U.S. at 532. So,
unlike the major question of tobacco regulation in
Brown
&
Williamson,
there
is
“nothing
counterintuitive” about the EPA’s reasonable
regulation of dangerous airborne substances like
greenhouse gases. Id. at 531–532.
Similarly, the major question in UARG was whom
the EPA was attempting to regulate. In that case, the
Supreme Court held that the EPA’s statutory
88a
permitting authority for the construction and
modification of stationary sources was “designed to
apply to, and cannot rationally be extended beyond, a
relative handful of large sources capable of
shouldering heavy substantive and procedural
burdens”—sources like power plants. 573 U.S. at 322.
The Court held that, without clear statutory
grounding, the EPA’s effort to extend permitting
requirements to literally millions of small sources of
greenhouse gas pollution but of no other regulated
pollutants—sources like schools, hospitals, churches,
and shopping malls—overshot its statutory authority.
Id. at 324, 328.
The Clean Power Plan, by contrast, regulated the
very entities the EPA was told by the Supreme Court
in AEP and UARG to regulate—fossil-fuel-fired power
plants. And it employed statutory tools that were
“suitable” for application to the long-regulated power
industry. See UARG, 573 U.S. at 323, 324 n.7.
American Electric Power pointed the Agency to
regulation under Section 7411 specifically, explaining
that “Congress delegated to EPA the decision whether
and how to regulate carbon-dioxide emissions from
[new, modified, and existing] powerplants” using the
regulatory tools laid out in Section 7411. 564 U.S. at
424–426.
That is no doubt a significant task for the EPA. But
that is not because of any agency overreach. It is the
product of Congress’ charge that the EPA regulate air
pollution nationwide. And with respect to regulating
greenhouse gas pollution in particular, it reflects the
fact that fossil-fuel-fired power plants predominate
the power industry and are spread across the Nation.
See
United
States
Energy
Information
Administration (EIA), Frequently Asked Questions:
89a
What is U.S. Electricity Generation by Source? (Nov.
2,
2020),
https://www.eia.gov/tools/faqs/faq.php?id=427&t=2
(last visited Jan. 11, 2021); EIA, U.S. Energy
Mapping
System,
https://www.eia.gov/state/maps.php (last visited Jan.
11, 2021). So much so that they “are by far” the
greatest stationary contributor to greenhouse gas
pollution and the significant dangers it causes for the
public health and welfare. New Source Rule, 80 Fed.
Reg. at 64,522.
2. Best System of Emission Reduction
So what the EPA may regulate (greenhouse gas
pollution), and whom it may target (power plants),
and how (under Section 7411) have all been resolved
and so do not trigger the major questions doctrine.
That leaves the EPA no place to house its majorquestion objection other than in the interpretation of
the statutory term “best system of emission
reduction,” 42 U.S.C. § 7411(a)(1). More specifically,
the EPA says the use of any emission-control
measures that do not operate at the individual
physical plant level requires an express statement
from Congress, and that federal standards that might
encourage
generation-shifting
are
therefore
categorically forbidden under Section 7411.
But the major questions doctrine does not apply
there either for a number of reasons.
a. Statutory Design
For starters, the “best system of emission
reduction” plays a cabined role in the statutory
scheme. The determination of the best system of
emission reduction is entirely internal to the EPA.
90a
The EPA itself evaluates relevant scientific,
technological, and economic evidence to identify, in its
judgment, the “best system of emission reduction”
available, and the “degree of emission limitation
achievable” through it. 42 U.S.C. § 7411(a)(1).
In making that determination, the statute
significantly reins in the EPA’s judgment by requiring
the Agency to (1) “tak[e] into account the cost of
achieving such reduction,” (2) factor in “any nonair
quality health and environmental impact,” (3)
balance the effect on “energy requirements,” and (4)
ensure that the system has been “adequately
demonstrated[.]” 42 U.S.C. § 7411(a)(1). To be
“adequately demonstrated[,]” we have explained, the
system must be shown to be reasonably “reliable,”
“efficient,” and “expected to serve the interests of
pollution control without becoming exorbitantly
costly[.]” Essex Chem. Corp. v. Ruckelshaus, 486 F.2d
427, 433 (D.C. Cir. 1973), cert. denied, 416 U.S. 969
(1974); see also Portland Cement Ass’n v.
Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973)
(whether a system is adequately demonstrated
“cannot be based on ‘crystal ball’ inquiry”).9
Once the EPA identifies a best system that meets
those requirements and calculates the degree of
emission limitation it allows, the Clean Air Act leaves
it to the States to set their own standards of
performance for their existing pollution sources. 42
9
In addition to these statutory constraints, the EPA has
tied its own hands by requiring that the best system include only
actions touching three bases: (i) they reduce emissions (rather
than, for example, capturing emissions after they are released
into the air by planting trees), (ii) sources themselves can
implement them, and (iii) they target supply-side activities. See
Clean Power Plan, 80 Fed. Reg. at 64,776, 64,778–64,779.
91a
U.S.C. § 7411(d). The cooperative-federalism design
of Section 7411(d) gives the States broad discretion in
achieving those emission limitations. See AEP, 564
U.S. at 428 (“The Act envisions extensive cooperation
between federal and state authorities, generally
permitting each State to take the first cut at
determining how best to achieve EPA emissions
standards within its domain[.]”) (internal citations
omitted). In addition, Section 7411(d) expressly
allows States, in setting their emission standards, to
“take into consideration, among other factors, the
remaining useful life” of its existing sources. 42
U.S.C. § 7411(d).
So the EPA’s scientific and technological
identification of the best system of emission reduction
cannot bear the major-question label. Determining
the system is a task expressly and indisputably
assigned by Congress to the EPA and requiring
specialized agency expertise. That system serves only
as the basis for the EPA to set the emission-reduction
targets in its quantitative guidelines. The States
retain the choice of how to meet those guidelines
through standards of performance tailored to their
various sources. Neither exercise entails resolution of
a major question.
The EPA argues that its own best-system process
raised a major question by “impos[ing] ‘generation
shifting[.]’” EPA Br. 99. But under Section 7411(d),
the EPA does not impose the “best system of emission
reduction” on anyone. Instead, each State decides for
itself what measures to employ to meet the emission
limits, and in so doing may elect to consider the
“remaining useful life” of its plants and “other
factors.” 42 U.S.C. § 7411(d). See Clean Power Plan,
80 Fed. Reg. at 64,709–64,710, 64,783. The Clean
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Power Plan, in fact, afforded States considerable
flexibility in choosing how to calculate and meet their
emissions targets. See, e.g., id. at 64,665, 64,756–
64,757, 64,834–64,837.10
Congress already focused on the issue and made
the decision to rope the EPA’s selection of a best
system of emission reduction about with all of those
substantive and structural limitations. So the major
questions doctrine does not provide any basis for
concluding that the Clean Air Act categorically
forecloses the EPA’s consideration of even those
generation-shifting measures that are already widely
in use by States and power plants and have been
demonstrated to be reasonable, reliable, effective, and
not unduly disruptive to the regulated industry. See
Clean Power Plan, 80 Fed. Reg. at 64,735, 64,769.
10 The Clean Power Plan expressly contemplated that States
and sources might choose to meet their emissions targets by
using measures other than the specific heat-rate improvements
and generation shifting that the EPA had identified in its best
system. See 80 Fed. Reg. at 64,755–64,758. The EPA offered a
list of alternative available technologies that reduced power
plants’ carbon dioxide emissions per megawatt, including carbon
capture and storage, heat-rate improvements at non-coal plants,
fuel switching to gas, fuel switching to biomass, and waste heatto-energy conversion. Id. at 64,756. In certain situations, for
example, modifying coal-fired plants to burn natural gas could
“help achieve emission limits consistent with the [best system].”
Id. The Agency also identified a list of alternative measures that
States could implement to lower overall emissions from fossilfuel-fired plants. Those measures included, for example,
demand-side energy efficiency—a policy tool that the EPA
expected some States to use because “the potential emission
reductions from demand-side [energy efficiency] rival those from
[generation shifting] in magnitude[.]” Id.
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In that respect, the EPA’s argument sounds much
like a second argument rejected by the Supreme
Court in UARG. In addition to the scope question
discussed above, the Court addressed whether the
EPA could require facilities that emit conventional
pollutants also to implement the “best available
control technology” for greenhouse gases. UARG, 573
U.S. at 329–333 (citing 42 U.S.C. § 7475(a)(4)). Like
the EPA here, the industry petitioners argued that
the “best available control technology” standard was
“fundamentally unsuited” to greenhouse gas
emissions because it had “traditionally” focused on
“end-of-stack controls.” Id. at 329–330. “[A]pplying it
to greenhouse gases,” the industry petitioners
insisted, would make the “best available control
technology” standard “more about regulating energy
use, which will enable regulators to control every
aspect of a facility’s operation and design[.]” Id. at 330
(internal quotation marks omitted).
The Supreme Court rejected that challenge. The
Court explained that the EPA’s guidance
contemplated both “end-of-stack”—type controls and
energy efficiency measures. UARG, 573 U.S. at 330.
And, critically, the Court emphasized that the statute
and regulations already imposed “important
limitations on [best available control technology] that
may work to mitigate petitioners’ concerns about
‘unbounded’ regulatory authority.” Id. at 331. Among
those limitations was the EPA’s longstanding
statutory interpretation that the best available
control technology was required “only for pollutants
that the source itself emits,” and the EPA’s existing
guidance that permitting authorities should “consider
whether a proposed regulatory burden outweighs any
reduction in emissions to be achieved.” Id. The statute
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also required the EPA to determine the best available
control technology with reference to “energy,
environmental, and economic impacts and other
costs.” 42 U.S.C. § 7479(3); see also UARG, 573 U.S.
at 333 n.9.
So too here: The numerous substantial and explicit
constraints on the EPA’s selection of a best system of
emission reduction foreclose using the major
questions doctrine to write additional, extratextual,
and inflexibly categorical limitations into a statute
whose “broad language * * * reflects an intentional
effort to confer the flexibility necessary to forestall * *
* obsolescence.” Massachusetts v. EPA, 549 U.S. at
532; see also Transmission Access Policy Study Group
v. FERC, 225 F.3d 667, 711 (D.C. Cir. 2000) (where
Congress has spoken, court upholds as within agency
authority an order that “fundamentally change[d] the
regulatory environment in which utilities operate”
and “introduc[ed] meaningful competition into an
industry that since its inception has been highly
regulated and affecting all utilities in a similar way”),
aff’d sub nom. New York v. FERC, 535 U.S. 1 (2002).
The EPA points to the Supreme Court’s statement
in UARG that “[w]hen an agency claims to discover in
a long-extant statute an unheralded power to regulate
‘a significant portion of the American economy,’ we
typically greet its announcement with a measure of
skepticism.” 573 U.S. at 324 (quoting Brown &
Williamson, 529 U.S. at 159).
True. But, as already explained, the EPA made no
new discovery of regulatory power with the Clean
Power Plan. While power plants are significant
players in the American economy, they have been
subject to regulation under Section 7411 for nearly
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half a century. See, e.g., Costle, 657 F.2d at 318; Oljato
Chapter of Navajo Tribe v. Train, 515 F.2d 654, 656–
57 (D.C. Cir. 1975). Their emission of massive
amounts of carbon dioxide has long been known. And
the source of the EPA’s duty to regulate that
greenhouse gas pollution from power plants was the
plain statutory text and Supreme Court precedent,
not something the EPA pulled out of a hat. See AEP,
564 U.S. at 425; Massachusetts v. EPA, 549 U.S. at
532.
In sum, the Clean Air Act expressly confers
regulatory authority on the EPA to set standards for
reducing greenhouse gas emissions from fossil-fuelfired power plants nationwide. Congress knew both
the scope and importance of what it was doing. And it
cabined the EPA’s authority with concrete and
judicially enforceable statutory limitations. The
major questions doctrine is meant to discern, not
override, such statutory judgments. Doubly so when
the regulatory authority and its reach have been
affirmed and enforced by the Supreme Court.
b. Regulatory Consequences
The problems with the EPA’s approach to the
major-question analysis do not stop there. The Agency
also conflates the significance of greenhouse gas
regulation of power plants generally with any
significance attributable solely to the EPA’s choice of
a “best system of emission reduction”—the statutory
provision where the EPA tried to anchor its majorquestion objection. Remember, the EPA concluded
that the major questions doctrine was triggered
centrally by (i) the Clean Power Plan’s “billions of
dollars of impact” on the economy; (ii) its effect on
“every electricity customer”; (iii) the number of
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litigation challenges it spawned, “involving almost
every State”; and (iv) its perceived shifting of
regulatory authority between federal agencies and
the States. ACE Rule, 84 Fed. Reg. at 32,529.
Taking the characterizations as true, those
consequences are a product of the greenhouse gas
problem, not of the best-system’s role in the solution.
Given the number and dispersion of fossil-fuel-fired
power plants, any nationwide regulation of their
greenhouse gas pollution that meaningfully
addresses emissions will necessarily affect a broad
swath of the Nation’s electricity customers. Under the
EPA’s grave endangerment finding, so too would a
failure to regulate those greenhouse gas emissions.
See 2009 Endangerment Finding, 74 Fed. Reg. at
66,496.
As for the “billions of dollars of impact[,]” the EPA
has offered no evidence tying that cost to generation
shifting rather than physical plant adjustments or a
variety of other means States might choose for
complying with emission limits. As the EPA itself
previously acknowledged, generation shifting can be
cheaper than other demonstrated methods of
reducing greenhouse gas emissions, like carbon
capture and storage, that take place “at” the source
(and thus fall within the EPA’s current statutory
vision). See Clean Power Plan, 80 Fed. Reg. at
64,727.11 Moreover, the Clean Power Plan’s
11 The EPA now takes the position that natural gas co-firing
is not adequately demonstrated and that neither co-firing nor
carbon capture and storage is part of the best system of emission
reduction. See ACE Rule, 84 Fed. Reg. at 32,544–32,545, 32,549.
But those methods are amenable to implementation “to” and “at”
the source, in keeping with the EPA’s statutory view.
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significant projected economic impact was not
atypical for Clean Air Act rulemakings by the EPA.
See, e.g., Costle, 657 F.2d at 314 (upholding 1979 new
source performance standards governing emission
control by coal-burning power plants that imposed
“tens of billions of dollars” of costs on the power
sector).
Even assuming that the EPA’s federalism concerns
could trigger the major questions doctrine (rather
than the federalism clear-statement canon), they
carry no material weight here. That is because the
statutory role of the best system of emission reduction
under Section 7411(d) textually preserves and
enforces the States’ independent role in choosing from
among the broadest range of options to set standards
of performance appropriate to sources within their
jurisdiction. In fact, it is the ACE Rule’s unreasoned
barriers to certain compliance measures, like
generation shifting and biomass co-firing, that
hamstring the States. See supra Part II.A.3
(analyzing ACE Rule, 84 Fed. Reg. at 32,555–32,556).
Finally, it seems doubtful that the volume of
litigation aimed at a regulation can reasonably bear
on its major-question status. The Supreme Court has
certainly never embraced that idea. For good reason.
A doctrine at the mercy of litigation stratagems, or
the mere existence of disagreements over which
parties find advantage in filing suit, cannot be an
elucidating or even logically relevant tool of statutory
interpretation.
In any event, the EPA offers no basis for concluding
that the best-system determination is what lit the
litigation fire. After all, the ACE Rule too has been
“subject to litigation” involving 43 States and all
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manner of other interested parties, despite the Rule’s
jettisoning of generation shifting as part of the best
system of emission reduction. See Opinion Caption,
supra.
c. Regulating in the Electricity Sector
The ACE Rule’s last attempt to wrap the bestsystem determination in the major-question mantle
asserts that including generation shifting as part of
the best system of emission reduction lacks a “valid
limiting principle,” and that, by “shifting focus to the
entire grid[,]” it would “empower” the Agency “to
order the wholesale restructuring of any industrial
sector[.]” ACE Rule, 84 Fed. Reg. at 32,529. But that
is entirely wrong. The Clean Power Plan was aimed
not at regulating the grid, but squarely and solely at
controlling air pollution—a task at the heart of the
EPA’s mandate. Indeed, the EPA’s reasoning in the
ACE Rule defeats its own argument.
The EPA suggests that counting generation
shifting among the tools for emission reduction risks
expanding the Agency’s regulatory sights
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