Opposition Brief — Westmoreland Mining Holdings LLC, Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefAug 5, 2021
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Nos. 20-1530, 20-1531, 20-1778, and 20-1780
In the Supreme Court of the United States
STATE OF WEST VIRGINIA, ET AL., PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
THE NORTH AMERICAN COAL CORPORATION, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
BRUCE S. GELBER
Deputy Assistant Attorney
General
MEGHAN E. GREENFIELD
ERIC G. HOSTETLER
BENJAMIN CARLISLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
Additional Captions Listed On Inside Cover
WESTMORELAND MINING HOLDINGS LLC, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
STATE OF NORTH DAKOTA, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
QUESTIONS PRESENTED
1. Whether the Clean Air Act, 42 U.S.C. 7401 et seq.,
unambiguously excludes generation shifting from the
measures that the Environmental Protection Agency
(EPA) may consider in determining the “best system of
emission reduction,” 42 U.S.C. 7411(a)(1), for purposes
of regulating carbon dioxide (CO2) emissions from existing power plants.
2. Whether EPA’s regulation of hazardous air pollutants from coal-fired power plants under 42 U.S.C. 7412
bars regulation of CO2 from those same sources under
42 U.S.C. 7411(d).
(I)
TABLE OF CONTENTS
Page
Opinion below ................................................................................ 2
Jurisdiction .................................................................................... 2
Statement ...................................................................................... 2
Argument..................................................................................... 16
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES
Cases:
American Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011).................................................... 8, 25, 32
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ................ 28
FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ........ 23
Hall v. Beals, 396 U.S. 45 (1969) .......................................... 19
Horne v. Flores, 557 U.S. 433 (2009) ................................... 29
Massachusetts v. EPA, 549 U.S. 497 (2007) ......................... 8
Michigan v. EPA, 576 U.S. 743 (2015) ............................ 2, 32
Negusie v. Holder, 555 U.S. 511 (2009) ......................... 18, 21
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ....... 19
Trump v. New York, 141 S. Ct. 530 (2020) .......................... 20
United States v. Welden, 377 U.S. 95 (1964) ....................... 31
Utility Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014)................................................................ 5
West Virginia v. EPA, 136 S. Ct. 1000 (2016) ........ 10, 18, 24
Statutes and regulations:
Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 2
42 U.S.C. 7408-7410........................................................... 5
42 U.S.C. 7408(a) ............................................................... 5
42 U.S.C. 7408(a)(1)........................................................... 5
42 U.S.C. 7409(a) ............................................................... 5
(III)
IV
Statutes and regulations—Continued:
Page
42 U.S.C. 7411 ......................................................... passim
42 U.S.C. 7411(a)(1)....................................... 3, 4, 9, 18, 19
42 U.S.C. 7411(a)(2)........................................................... 3
42 U.S.C. 7411(b) ........................................................... 2, 8
42 U.S.C. 7411(b)(1)(A) ............................................... 2, 21
42 U.S.C. 7411(b)(1)(B) ............................................... 2, 21
42 U.S.C. 7411(d) .................................................... passim
42 U.S.C. 7411(d)(1) ............................................ 3, 4, 7, 25
42 U.S.C. 7411(d)(1)(A) (1988) ..................................... 5, 6
42 U.S.C. 7411(d)(1)(A) ................................. 13, 25, 29, 31
42 U.S.C. 7411(d)(1)(A)(i) (1988) ...................................... 5
42 U.S.C. 7411(d)(1)(A)(i) ...................................... passim
42 U.S.C. 7411(d)(1)(A)(ii) .......................................... 8, 26
42 U.S.C. 7411(d)(2)(A) ..................................................... 4
42 U.S.C. 7411 note ........................................................... 7
42 U.S.C. 7412 ......................................................... passim
42 U.S.C. 7412(b) (1988).................................................... 6
42 U.S.C. 7412(b) ................................................. 26, 28, 29
42 U.S.C. 7412(b)(1)-(2)..................................................... 6
42 U.S.C. 7412(b)(1)(A) (1988) ......................................... 5
42 U.S.C. 7412(c)(1) ......................................................... 26
42 U.S.C. 7412(c)(9) ......................................................... 33
42 U.S.C. 7412(d) ............................................................... 5
42 U.S.C. 7412(n)(1)(A) ................................................... 32
42 U.S.C. 7602(g) ............................................................... 8
42 U.S.C. 7607(b) ....................................................... 18, 20
42 U.S.C. 7607(d)(5) ........................................................ 18
Clean Air Act Amendments of 1990, Pub. L. No.
101-549, 104 Stat. 2399:
Tit I:
§ 108, 104 Stat. 2465 .................................................... 6
V
Statutes and regulations—Continued:
Page
§ 108(g), 104 Stat. 2467................................................ 6
Tit. III:
§ 301, 104 Stat. 2531 .................................................... 6
§ 302, 104 Stat. 2574 .................................................... 6
§ 302(a), 104 Stat. 2574 ................................................ 6
1 U.S.C. 204(a) ....................................................................... 31
2 U.S.C. 285 et seq.................................................................... 7
40 C.F.R.:
Pt. 50 ................................................................................... 5
Pt. 60 ................................................................................. 21
Subpt. Ba ...................................................................... 4
Miscellaneous:
36 Fed. Reg. 5931 (Mar. 31, 1971) .......................................... 8
42 Fed. Reg. 53,657 (Oct. 3, 1977) .......................................... 8
61 Fed. Reg. 9905 (Mar. 12, 1996) ........................................ 20
70 Fed. Reg. 15,994 (Mar. 29, 2005) ..................................... 31
77 Fed. Reg. 9304 (Feb. 16, 2012) ........................................ 32
80 Fed. Reg. 64,510 (Oct. 23, 2015) .................................... 7, 8
80 Fed. Reg. 64,662 (Oct. 23, 2015) .................... 6, 7, 9, 10, 29
81 Fed. Reg. 24,420 (Apr. 25, 2016) ..................................... 33
81 Fed. Reg. 35,824 (June 3, 2016) ....................................... 20
84 Fed. Reg. 32,520 (July 8, 2019).................10, 11, 17, 23, 24
85 Fed. Reg. 31,286 (May 22, 2020) ..................................... 33
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ....................... 4
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 28
In the Supreme Court of the United States
No. 20-1530
STATE OF WEST VIRGINIA, ET AL., PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 20-1531
THE NORTH AMERICAN COAL CORPORATION, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 20-1778
WESTMORELAND MINING HOLDINGS LLC, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 20-1780
STATE OF NORTH DAKOTA, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION
(1)
2
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-203a 1)
is reported at 985 F.3d 914.
JURISDICTION
The judgment of the court of appeals was entered on
January 19, 2021. The petition for a writ of certiorari in
No. 20-1530 was filed on April 29, 2021. The petition for
a writ of certiorari in No. 20-1531 was filed on April 30,
2021. The petitions for writs of certiorari in Nos. 20-1778
and 20-1780 were filed on June 18, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Clean Air Act, 42 U.S.C. 7401 et seq., “establishes a series of regulatory programs to control air pollution from stationary sources,” such as factories and
power plants. Michigan v. EPA, 576 U.S. 743, 747 (2015).
One of those programs is set forth in 42 U.S.C. 7411.
a. As a preliminary step to regulation, Section 7411
directs the Administrator of the Environmental Protection Agency (EPA) to list “categories of stationary
sources” that, “in his judgment,” “cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
42 U.S.C. 7411(b)(1)(A). Once the Administrator lists a
particular category of stationary sources, Section
7411(b) requires EPA to “establish[] Federal standards
of performance for new sources within such category.”
42 U.S.C. 7411(b)(1)(B). A “new source” is “any stationary source, the construction or modification of which is
commenced after the publication of regulations (or, if
earlier, proposed regulations) prescribing” an applicable
References to “Pet. App.” are to the appendix to the petition for
a writ of certiorari in No. 20-1530.
1
3
“standard of performance” under Section 7411. 42 U.S.C.
7411(a)(2). The statute 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.
42 U.S.C. 7411(a)(1).
Once EPA has established standards of performance
for new sources within a particular category, Section
7411(d) requires regulation of certain air pollutants
emitted by “existing” sources within the same category.
42 U.S.C. 7411(d)(1). Under Section 7411(d), “[t]he Administrator shall prescribe regulations which shall establish a procedure * * * under which each State shall
submit to the Administrator a plan” that “establishes
standards of performance” for those existing sources
and “provides for the implementation and enforcement
of such standards of performance.” Ibid. Thus, EPA
generally does not directly regulate existing sources
under Section 7411(d). Rather, the applicable standards of performance are generally established through
plans submitted by States.
As in the case of new sources, however, those standards of performance must “reflect[] the degree of emission limitation achievable through the application of the
best system of emission reduction which * * * the Administrator determines has been adequately demonstrated.” 42 U.S.C. 7411(a)(1). In making that determination, the Administrator (1) identifies the “system[s]
4
of emission reduction” that are “adequately demonstrated” for existing sources within the pertinent category; (2) identifies the “best” of those systems, based on
relevant criteria that include “the cost of achieving
[emission] reduction”; and (3) derives from that system
an “achievable” “degree of emission limitation” for those
existing sources. Ibid.
To identify the best system of emission reduction,
and the degree of emission limitation that the agency
views as achievable through use of that system, EPA
promulgates a set of regulations known as “emission
guidelines.” See 40 C.F.R. Pt. 60, Subpt. Ba. The emission guidelines also establish procedures through which
EPA receives and approves individualized state plans,
which specify the standards of performance applicable
to particular sources within a State. See 42 U.S.C.
7411(d)(1) (providing that EPA’s regulations “shall establish a procedure similar to that provided by section
7410 of [Title 42]” and “shall permit the State in applying a standard of performance to any particular source”
under such a plan “to take into consideration, among
other factors, the remaining useful life of the existing
source to which such standard applies”). If a State elects
not to submit a plan to EPA, or submits a plan that EPA
does not find “satisfactory,” EPA must promulgate a
federal plan that directly limits emissions from the
State’s existing sources. 42 U.S.C. 7411(d)(2)(A).
b. “Congress designed the existing source provision
in Section 7411(d) to ensure that there were ‘no gaps in
control activities pertaining to stationary source emissions that pose any significant danger to public health
or welfare.’ ” Pet. App. 124a (quoting S. Rep. No. 1196,
91st Cong., 2d Sess. 20 (1970)). Only certain air-pollutant
emissions from existing sources are subject to regulation
5
under Section 7411(d). Until 1990, Section 7411(d)(1)(A)
authorized regulation of only those air pollutants “for
which air quality criteria have not been issued or which
[are] not included on a list published under section 7408(a)
or 7412(b)(1)(A) of [Title 42].” 42 U.S.C. 7411(d)(1)(A)(i)
(1988). Section 7411(d)(1)(A) thus cross-referenced two
other Clean Air Act programs—the National Ambient
Air Quality Standards (NAAQS) program, 42 U.S.C.
7408-7410; and the National Emissions Standards for
Hazardous Air Pollutants program, 42 U.S.C. 7412—
that address air pollution from stationary sources.
“Section 7411(d), in its gap-filling capacity, covers all
dangerous pollutants except those already regulated by
NAAQS or the Hazardous Air Pollutants provision.”
Pet. App. 124a.
Under the NAAQS program, 42 U.S.C. 7408-7410,
EPA issues “air quality criteria” and national ambient
air quality standards for certain air pollutants whose
“presence * * * in the ambient air results from numerous or diverse mobile or stationary sources.” 42 U.S.C.
7408(a); see 42 U.S.C. 7409(a). To date, EPA has issued
air quality criteria “for six pollutants: sulfur dioxide,
particulate matter, nitrogen dioxide, carbon monoxide,
ozone, and lead.” Utility Air Regulatory Grp. v. EPA,
573 U.S. 302, 308 (2014); see 40 C.F.R. Pt. 50. Those six
pollutants are included on a list published under Section
7408(a). See 42 U.S.C. 7408(a)(1).
Under the Hazardous Air Pollutants program, EPA
establishes emission standards for stationary sources of
“hazardous air pollutants.” 42 U.S.C. 7412(d). As enacted in 1970, Section 7412(b)(1)(A) left it to the Administrator to determine which hazardous air pollutants to
regulate and directed the Administrator to publish a list
of those hazardous air pollutants. 42 U.S.C. 7412(b)(1)(A)
6
(1988). In the ensuing decades, however, Congress became “impatien[t] with the EPA’s progress in regulating.” 80 Fed. Reg. 64,662, 64,766 n.502 (Oct. 23, 2015).
In the Clean Air Act Amendments of 1990 (1990 Amendments), Pub. L. No. 101-549, Tit. III, § 301, 104 Stat.
2531, Congress overhauled Section 7412 “to accelerate
the EPA’s regulation of hazardous air pollutants.”
80 Fed. Reg. at 64,711. To that end, Congress replaced
Section 7412(b) with a “lengthy list” of hazardous air
pollutants that EPA was required to regulate, while authorizing EPA to add to that list. Ibid.; see 42 U.S.C.
7412(b)(1)-(2).
That revision required Congress to update Section
7411(d)(1)(A)’s cross-reference to “a list published under section * * * 7412(b)(1)(A),” which no longer existed. 42 U.S.C. 7411(d)(1)(A) (1988). The 1990 Amendments, however, contained two different provisions
amending that cross-reference as part of Congress’s
broader revision of the Clean Air Act. Section 108 of
the 1990 Amendments—entitled “Miscellaneous Guidance,” 1990 Amendments, Tit. I, § 108, 104 Stat. 2465
(capitalization altered; emphasis omitted)—replaced
the words “or [74]12(b)(1)(A)” in Section 7411(d) with
the phrase “or emitted from a source category which is
regulated under section [74]12.” § 108(g), 104 Stat. 2467.
That provision originated in a House Bill and is known
as the “House amendment.” 80 Fed. Reg. at 64,711. Section 302 of the 1990 Amendments—entitled “Conforming Amendments,” 1990 Amendments, Tit. III, § 302, 104
Stat. 2574 (capitalization altered; emphasis omitted)—
replaced the reference to Section “[74]12(b)(1)(A)” in
Section 7411(d) with a reference to Section “[74]12(b).”
§ 302(a), 104 Stat. 2574. That provision originated in a
7
Senate Bill and is known as the “Senate amendment.”
80 Fed. Reg. at 64,711.
In preparing a revised edition of the United States
Code, the Office of the Law Revision Counsel of the
United States House of Representatives, which is responsible for keeping the Code current, see 2 U.S.C. 285
et seq., updated Section 7411(d)’s cross-reference in the
manner set forth by the House amendment. See 42 U.S.C.
7411 note (Amend. 1990, Subsec. (d)(1)(A)(i)). The Law
Revision Counsel declined to incorporate the Senate
amendment, stating that it “could not be executed” in
light of the revision made by the House amendment.
Ibid. As it now appears in the United States Code, Section 7411(d) provides:
The Administrator shall prescribe regulations which
shall establish a procedure * * * under which each
State shall submit to the Administrator a plan which
(A) establishes standards of performance for any existing source for any air pollutant (i) for which air
quality criteria have not been issued or which is not
included on a list published under section 7408(a) of
[Title 42] or emitted from a source category which is
regulated under section 7412 of [Title 42] but (ii) to
which a standard of performance under this section
would apply if such existing source were a new
source, and (B) provides for the implementation and
enforcement of such standards of performance.
42 U.S.C. 7411(d)(1). Congress has not enacted the Law
Revision Counsel’s version of Section 7411(d) into positive law.
2. In the 1970s, pursuant to Section 7411, EPA placed
power plants on the list of categories of stationary
sources that cause, or contribute significantly to, air
pollution. 80 Fed. Reg. 64,510, 64,527 (Oct. 23, 2015).
8
Specifically, EPA listed fossil-fuel-fired steam plants in
1971, see 36 Fed. Reg. 5931 (Mar. 31, 1971), and stationary combustion turbines in 1977, see 42 Fed. Reg.
53,657 (Oct. 3, 1977).
In 2015, EPA published two rules—the New Source
Rule and the Clean Power Plan—that addressed emissions of carbon dioxide (CO2) from power plants. Pursuant to Section 7411(b), the New Source Rule established CO2 standards for new power plants. 80 Fed. Reg.
at 64,510. In prescribing those standards, EPA noted
this Court’s holding in Massachusetts v. EPA, 549 U.S.
497, 528-532 (2007), that greenhouse gases are encompassed by the Clean Air Act’s general definition of “air
pollutant,” 42 U.S.C. 7602(g), and the Court’s further
holding in American Electric Power Co. v. Connecticut,
564 U.S. 410, 424-425 (2011), that greenhouse-gas emissions are subject to regulation under Section 7411.
80 Fed. Reg. at 64,527. EPA also noted its prior finding
that “[greenhouse-gas] air pollution may reasonably be
anticipated to endanger public health or welfare.” Id.
at 64,530. And EPA emphasized that power plants are
“by far the largest emitters” of greenhouse gases
among stationary sources in the United States. Id. at
64,522. By promulgating the New Source Rule to govern CO2 emissions from new power plants, EPA also satisfied one of the legal prerequisites to Section 7411(d)
regulation of CO2 emissions from existing power plants—
i.e., the requirement that the existing source be one “to
which a standard of performance under this section
would apply if such existing source were a new source.”
42 U.S.C. 7411(d)(1)(A)(ii).
The Clean Power Plan established Section 7411(d)
emission guidelines for States to follow in developing
plans to limit CO2 emissions from existing power plants.
9
80 Fed. Reg. at 64,662. In establishing those guidelines,
EPA first identified the “best system of emission reduction” that has been “adequately demonstrated” for existing plants. 42 U.S.C. 7411(a)(1); see 80 Fed. Reg. at
64,707. EPA found that the “best system of emission
reduction” would incorporate three types of measures:
(1) improving heat rate (i.e., the amount of fuel that
must be burned to generate a unit of electricity) at coalfired steam plants; (2) substituting increased generation from lower-emitting natural-gas combined-cycle
plants for generation from higher-emitting steam plants
(which are primarily coal-fired); and (3) substituting increased generation from new zero-emitting renewable
energy sources for generation from fossil-fuel-fired
plants (which are primarily coal- or natural-gas-fired).
80 Fed. Reg. at 64,667. The latter two measures are
known as “generation shifting” because they involve
shifting electricity generation from higher-emitting
sources to lower-emitting ones. Id. at 64,728.
EPA then determined the “degree of emission limitation achievable through the application of the best
system of emission reduction.” 42 U.S.C. 7411(a)(1). It
quantified that determination in the form of emission
performance rates (pounds of CO2 per megawatt-hour)
for fossil-fuel-fired steam plants and stationary combustion turbines. 80 Fed. Reg. at 64,812. And it explained
that, to comply with its guidelines, a State would “have
to ensure, through its plan, that the emission standards
it establishes for its sources individually, in the aggregate, or in combination with other measures undertaken
by the [S]tate, represent the equivalent of ” those performance rates. Id. at 64,667. EPA emphasized, however, that its guidelines did not mandate any particular
approach to compliance, id. at 64,667-64,668, and that
10
States could adopt emissions-trading programs as compliance measures, see, e.g., id. at 64,709, 64,727.
Numerous States and private parties petitioned for
court of appeals review of the Clean Power Plan and
sought a stay of the rule pending review. Pet. App. 36a.
After the court of appeals denied a stay, this Court
granted one. West Virginia v. EPA, 136 S. Ct. 1000 (2016)
(No. 15A773). The en banc court of appeals heard oral
argument, but the litigation in that court subsequently
“was held in abeyance and ultimately dismissed as the
EPA reassessed its position.” Pet. App. 36a.
3. In 2019, EPA finalized two rulemakings that are
relevant here. 84 Fed. Reg. 32,520 (July 8, 2019). First,
EPA repealed the Clean Power Plan. Ibid. EPA explained that it had reevaluated its interpretation of Section 7411, id. at 32,522, and had concluded that the
Clean Power Plan “significantly exceeded the Agency’s
authority,” id. at 32,523. In particular, EPA expressed
the view that Section 7411 “unambiguously” prohibits
the agency from including generation-shifting measures
in its determination of the best system of emission reduction, id. at 32,524, because Section 7411’s “text and
reasonable inferences from it” make “clear” that a “system” of emission reduction consists only of “measures
that can be applied to and at the level of the individual
source,” id. at 32,529. EPA thus felt “obliged to repeal
the [Clean Power Plan] to avoid acting unlawfully.” Id.
at 32,532. EPA noted, however, that “[m]arket-based
forces ha[d] already led to significant generation shifting in the power sector,” ibid., and that there was
“likely to be no difference between a world where the
[Clean Power Plan] is implemented and one where it is
not,” id. at 32,561.
11
Second, EPA promulgated the Affordable Clean Energy (ACE) Rule, a new set of emission guidelines that
the agency viewed as “consistent with the legal interpretation adopted in the repeal of the” Clean Power
Plan. 84 Fed. Reg. at 32,532. The ACE Rule established
emission guidelines only for existing coal-fired plants;
EPA explained that it lacked “adequate information” to
issue guidelines for other types of existing plants. Id.
at 32,533. In light of EPA’s Clean Power Plan repeal,
which was premised on the agency’s rejection of generation shifting as a permissible component of a “system
of emission reduction,” the ACE Rule found that the
best system of emission reduction consisted of only the
first of the three measures that the Clean Power Plan
had identified: heat-rate improvements. Id. at 32,535.
The ACE Rule then provided a list of technologies that
could achieve such improvements, id. at 32,536, and
“identified the degree of emission limitation achievable
* * * by providing ranges of expected reductions associated with each of the technologies,” id. at 32,537. The
ACE Rule observed that States have “discretion in setting standards of performance” for particular sources
and that those “sources have flexibility in how they comply with those standards.” Id. at 32,555. The ACE Rule
required, however, that any compliance measure must
itself qualify as a “system of emission reduction” and
thus “be capable of being applied to and at the source.”
Ibid. The ACE Rule excluded “averaging and trading and
bio-mass cofiring” as possible compliance measures, on
the view that such measures do not so qualify. Ibid.
4. Numerous States and private parties petitioned
for court of appeals review of the Clean Power Plan repeal and the ACE Rule. See Pet. App. 43a-44a. The
North American Coal Corp. (petitioner in this Court in
12
No. 20-1531) and Westmoreland Mining Holdings LLC
(petitioner in this Court in No. 20-1778) challenged the
ACE Rule, arguing that EPA cannot regulate CO2 emissions from coal-fired power plants under Section 7411(d)
because the agency is already regulating emissions of
mercury and other hazardous air pollutants from those
plants under Section 7412. See id. at 44a; 19-1179 C.A.
Doc. 1838666, at 20-35 (Apr. 17, 2020). Numerous States
(petitioners in this Court in Nos. 20-1530 and 20-1780)
intervened in support of the Clean Power Plan repeal
and the ACE Rule. See 19-1140 C.A. Doc. 1856393, at
4-35 (Aug. 13, 2020); 19-1140 C.A. Doc. 1856359, at 11-47
(Aug. 13, 2020).
a. The court of appeals vacated both the Clean
Power Plan repeal and the ACE Rule and remanded to
the agency for further proceedings. Pet. App. 1a-163a.
The court of appeals observed that “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.” Pet.
App. 51a. The court concluded, however, that “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” repealing the
Clean Power Plan and adopting the ACE Rule. Id. at 79a.
The court likewise concluded that neither the “major
questions” doctrine, id. at 83a; see id. at 83a-103a, nor
the federalism canon (the interpretive rule that Congress
must speak clearly in order to effect a significant alteration of the balance between federal and state powers), see
id. at 103a-109a, supports that reading. The court therefore held that Section 7411 “does not unambiguously bar
13
a system of emission reduction that includes generation
shifting.” Id. at 66a. Having held that EPA had “erred
in concluding Section 7411 unambiguously requires that
the best system of emission reduction be source specific,” the court also “reject[ed] the ACE Rule’s exclusion from Section 7411(d) of compliance measures it
characterizes as non-source-specific.” Id. at 80a.
The court of appeals concluded that, because EPA
had relied on “the erroneous legal premise that the statutory text expressly foreclosed consideration of measures
other than those that apply at and to the individual
source,” both the Clean Power Plan repeal and the ACE
Rule should be vacated. Pet. App. 162a. The court emphasized, however, that it had “not [been] called upon
to decide whether the [source-specific] approach of the
ACE Rule is a permissible reading of the statute as a
matter of agency discretion.” Id. at 50a-51a. The court
therefore “remanded to the EPA so that the Agency
may ‘consider the question afresh in light of the ambiguity’ ” that the court had perceived in the statute. Id.
at 162a (citations omitted).
The court of appeals also upheld EPA’s authority under Section 7411(d) to issue emission guidelines addressing CO2 emissions from existing power plants. Pet. App.
124a-146a. The court acknowledged that “those same
power plants’ mercury emissions are regulated under
Section 7412’s Hazardous Air Pollutants provision.” Id.
at 124a. The court held, however, that EPA’s regulation
of those hazardous-pollutant emissions from power
plants did not preclude the agency from regulating CO2
emissions from the same sources under Section 7411(d).
See id. at 124a-146a.
The court of appeals explained that the Senate amendment to Section 7411(d)(1)(A) excludes from Section
14
7411(d)’s coverage only “hazardous pollutants already
regulated under Section 7412.” Pet. App. 127a. The
court held that the House amendment is best construed
to produce the same result. The court observed that the
exclusionary language of Section 7411(d)(1)(A)(i) “refer[s] directly to specific air pollutants listed for regulation under other statutory provisions, and so [] prevent[s] duplicate regulation of the same harmful emissions.” Id. at 130a. The court further explained that
“Section 7412’s regulatory scheme operates not broadly
on the source category, but only on its emissions of the
specified air pollutants” that are listed as hazardous under that provision. Id. at 132a. The court concluded
that reading Section 7411(d) to authorize regulation of
CO2 emissions from existing power plants “fits with Section 7411(d)’s gap-filling purpose, which is to capture
those dangerous air pollutants not covered by NAAQS
or the Hazardous Air Pollutants program.” Id. at 133a.
The court of appeals therefore held that “Section
7411(d) allows the EPA to regulate carbon dioxide emissions from power plants, even though mercury emitted
from those same power plants is regulated as a hazardous air pollutant under Section 7412.” Id. at 146a.
b. Judge Walker concurred in part, concurred in the
judgment in part, and dissented in part. Pet. App. 164a203a. In his view, EPA is precluded from regulating
coal-fired power plants under Section 7411(d) “because
coal-fired power plants are already regulated under
§ [74]12, and § [74]11 excludes from its scope any power
plants regulated under § [74]12.” Id. at 165a. Judge
Walker therefore would have upheld the Clean Power
Plan repeal but would have vacated the ACE Rule. See
id. at 202a.
15
5. After the court of appeals issued its decision, EPA
moved for a stay of the court’s mandate with respect to
vacatur of the Clean Power Plan repeal until the agency
promulgates a new Section 7411(d) rule on remand.
19-1140 C.A. Doc. 1885168, at 4 (Feb. 12, 2021) (EPA
Partial Stay Mot.). In that motion, EPA made clear that
it did not wish for the Clean Power Plan to be reinstated.
Ibid. The agency noted that the deadline for States to
submit their plans under the Clean Power Plan had
“long since passed,” EPA Partial Stay Mot., Goffman
Decl. ¶ 13, and that because of “ongoing changes in electricity generation,” “the emissions reductions that the
[Clean Power Plan] was projected to achieve have already been achieved by the power sector,” id. ¶ 14. EPA
explained that, while the Clean Power Plan “was projected to reduce CO2 emissions from the electric power
sector by 2030 to a level approximately 32 percent below
the level in 2005,” “[p]reliminary data indicates that
CO2 emissions from the electric power sector in 2019
were 34 percent below the level in 2005.” Ibid. Thus, to
“promote regulatory certainty and to avoid the possibility of administrative disruption,” EPA argued that “no
Section 7411(d) rule should go into effect until [the
agency’s new rulemaking] is completed.” EPA Partial
Stay Mot. 4.
No party opposed EPA’s motion, and the court of appeals granted it, “withhold[ing] issuance of the mandate
with respect to the vacatur of the Clean Power Plan Repeal Rule until the EPA responds to the court’s remand
in a new rulemaking action.” 19-1140 C.A. Doc. 1886386,
at 1 (Feb. 22, 2021). The court then issued its mandate
with respect to vacatur of the ACE Rule. 19-1140 C.A.
Doc. 1888579 (Mar. 5, 2021). For that reason, no Section
16
7411(d) rule governing CO2 emissions from existing
power plants is currently in effect.
ARGUMENT
Petitioners challenge the Clean Power Plan’s approach to regulating CO2 emissions from existing power
plants. They argue that Section 7411 unambiguously
forecloses EPA from relying on generation shifting as a
component of the “best system of emission reduction.”
But the question whether the Clean Power Plan was
lawful has no continuing practical significance, since
that Plan is no longer in effect and EPA does not intend
to resurrect it.
EPA instead intends to issue a new Section 7411(d)
rule after taking into account all relevant considerations, including changes to the electricity sector that
have occurred during the last several years. Petitioners
urge this Court to grant review now to help guide the
upcoming rulemaking, but that is little more than a request for an impermissible advisory opinion. Any further judicial clarification of the scope of EPA’s authority under Section 7411(d) would more appropriately occur at the conclusion of the upcoming rulemaking, when
the courts can review a concrete and considered EPA
rule, rather than speculate as to the regulatory approaches the agency might take. In the meantime, the
court of appeals’ stay of its vacatur of the Clean Power
Plan repeal ensures that petitioners will face no burdens from any Section 7411(d) regulation unless and until EPA promulgates a new rule.
Petitioner Westmoreland also contends that EPA
cannot regulate CO2 emissions from existing coal-fired
power plants under Section 7411(d) because EPA already regulates emissions of certain hazardous air pollutants from such plants under Section 7412. The court
17
of appeals correctly rejected that contention. And in any
event, this Court’s consideration of that issue would be
premature, given pending challenges to EPA’s regulation of hazardous-air-pollutant emissions from power
plants under Section 7412. Further review is not warranted.
1. Petitioners contend that Section 7411 unambiguously forecloses the approach to regulating CO2 emissions from existing power plants that EPA adopted
two Administrations ago in the Clean Power Plan. See
20-1530 Pet. 25-34; 20-1531 Pet. 23-33; 20-1778 Pet. 32-38;
20-1780 Pet. 19-32. In particular, petitioners contend that
Section 7411 unambiguously excludes generation shifting from the measures that EPA may consider in determining the “best system of emission reduction.” See,
e.g., 20-1530 Pet. 23-33. That contention does not warrant this Court’s review.
a. Whether the Clean Power Plan was lawful is no
longer an issue of ongoing practical importance. EPA
repealed the Clean Power Plan two years ago. 84 Fed.
Reg. at 32,520. Although the court of appeals vacated
that repeal, see Pet. App. 163a, EPA promptly moved to
stay that vacatur, and the court granted EPA’s motion.
See p. 15, supra. That stay ensured that the Clean Power
Plan would not spring back into existence simply by virtue of the court’s vacatur decision, and EPA does not intend to resurrect the Clean Power Plan of its own accord.
When the court of appeals’ stay order is taken into
account, it is clear that the decision below does not subject petitioners to any present or imminent concrete
harm. To the contrary, in addition to vacating EPA’s
repeal of the Clean Power Plan, the court of appeals vacated the ACE Rule, and that aspect of the court’s decision has not been stayed. See p. 15, supra. The present
18
effect of the decision below thus is to leave CO2 emissions from existing power plants unregulated under
Section 7411(d).
Petitioners find the decision below objectionable not
because of any present or imminent legal effect of the
court of appeals’ mandate, but because of the potential
effect of the court’s legal analysis on future EPA deliberations. Any such effect, however, is neither imminent
nor certain. EPA is now in the process of initiating a
notice-and-comment rulemaking to promulgate new
CO2 emission guidelines for existing power plants under
Section 7411(d). See 19-1140 C.A. Doc. 1899829, at 3 (May
24, 2021) (reporting that “administrative proceedings to
respond to the Court’s remand in a new rulemaking action are ongoing”). As part of that upcoming rulemaking,
EPA will take a fresh look at the scope of its authority
under Section 7411(d). See Pet. App. 162a (remanding
for the agency to “consider the question afresh”) (quoting Negusie v. Holder, 555 U.S. 511, 523 (2009)).
In determining anew the “best system of emission
reduction,” 42 U.S.C. 7411(a)(1), the agency will take
into account this Court’s decision to stay the Clean
Power Plan, see West Virginia v. EPA, 136 S. Ct. 1000
(2016) (No. 15A773); the court of appeals’ decision below; “changed facts and circumstances in the electricity
sector that have occurred over the last several years,”
EPA Partial Stay Mot. 4-5; and public comments from
interested parties, including petitioners here, during
the new rulemaking, see 42 U.S.C. 7607(d)(5). The new
rule that EPA promulgates will then be subject to judicial review. See 42 U.S.C. 7607(b). There is consequently
no sound reason for this Court to grant review now to
resolve the legality of a prior agency regulation that has
19
no present operative effect and that EPA does not intend to revive.
b. Petitioners do not dispute that “the Clean Power
Plan itself is now a relic.” 20-1531 Pet. 18. Petitioners
nevertheless contend that this Court should grant review “to clarify EPA’s legal framework from the outset”
of the agency’s new rulemaking. 20-1530 Pet. 21; see
20-1531 Pet. 14 (urging the Court to “clarify the bounds
of [EPA’s] power now”).
Any such “clarif [ication]” (20-1530 Pet. 21) to guide
the upcoming rulemaking, however, would amount to
little more than an “advisory opinion[]” on an “abstract
proposition[] of law.” Hall v. Beals, 396 U.S. 45, 48 (1969)
(per curiam); see TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2203 (2021) (reaffirming that “federal courts do
not issue advisory opinions”). EPA’s new rule has yet
to be proposed, much less promulgated. Petitioners
therefore can only speculate as to what the new rule
might contain.
It is entirely speculative, for example, to suggest
that EPA will again include generation shifting as an
element of the best system of emission reduction. See,
e.g., 20-1531 Pet. 18 (speculating that EPA “will[] issue
similarly broad regulations again”); 20-1780 Pet. 33 (speculating that EPA “will seize upon the broad and expansive license given to it by the D.C. Circuit’s opinion”).
In determining what “system of emission reduction” is
“best,” EPA will be required to consider not only the
likely efficacy of various measures in reducing CO2
emissions from existing power plants, but also additional factors such as “cost” and “energy requirements.” 42 U.S.C. 7411(a)(1). The core holding of the
court below—i.e., that the Clean Air Act’s text does not
unambiguously preclude the use of generation shifting
20
as a component of such a system—therefore cannot reasonably be construed as requiring EPA to include
generation shifting as part of its new regulatory approach. In taking a fresh look at the issue, EPA may
adopt an approach, similar to the ACE Rule and Section
7411(d) guidelines that the agency has promulgated for
greenhouse-gas emissions from other sources, that considers only measures that can be applied at and to the
level of the individual source. See Pet. App. 50a-51a
(leaving it open on remand for EPA “to decide [that] the
approach of the ACE Rule is a permissible reading of
the statute as a matter of agency discretion”); 81 Fed.
Reg. 35,824, 35,826-35,827 (June 3, 2016) (identifying
only at-and-to-the-source measures for oil and naturalgas sources); 61 Fed. Reg. 9905, 9907 (Mar. 12, 1996)
(identifying only at-and-to-the-source measures for municipal solid-waste landfills). If EPA adopts such an approach, petitioners’ concerns will be moot, and no court
will need to determine the legality of an alternative regulatory regime that incorporated generation shifting.
This Court’s review therefore should await the completion of EPA’s new rulemaking, when any challenge
to the new rule “will take a more concrete shape.” Trump
v. New York, 141 S. Ct. 530, 535 (2020) (per curiam).
That is when judicial review of an agency rule typically
occurs, see, e.g., 42 U.S.C. 7607(b), and petitioners identify no sound basis for departing from that usual practice here. The upcoming rulemaking may well obviate
their concerns that EPA will “craft systems of emission
reduction ‘without regard for the thresholds prescribed
by Congress.’ ” 20-1530 Pet. 20 (citation omitted). And
if petitioners are ultimately aggrieved by the outcome
of that rulemaking, they may seek judicial review at
that time. The Court’s immediate review therefore is
21
not necessary to ensure that EPA’s new rule is consistent with Section 7411.
The Court’s immediate review likewise is unnecessary
to ensure that EPA refrains from issuing the equivalent
of a Clean Power Plan for “every building that emits
[greenhouse] gases, including residential homes and
every commercial facility.” 20-1531 Pet. 19; see 20-1530
Pet. 15 (similar). EPA cannot regulate a category of
sources under Section 7411(d) unless it first “list[s]”
them as a category that “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,” 42 U.S.C.
7411(b)(1)(A), and then establishes “Federal standards
of performance for new sources within [that] category,”
42 U.S.C. 7411(b)(1)(B). EPA has never taken those steps
with respect to “residential homes” or “commercial facilit[ies]” generally (20-1531 Pet. 19), even though it has
listed and regulated numerous categories of large industrial or other high-intensity facilities under Section
7411. See 40 C.F.R. Pt. 60. And given that EPA does
not intend to resurrect the Clean Power Plan itself, the
suggestion that EPA would adopt that approach on an
even broader scale is groundless.
The usual practice of allowing an agency to interpret
and apply a statute in the first instance, before judicial
review occurs, ensures that “the agency can bring its
expertise to bear upon the matter; it can evaluate the
evidence; it can make an initial determination; and, in
doing so, it can, through informed discussion and analysis,
help a court later determine whether its decision exceeds
the leeway that the law provides.” Negusie, 555 U.S. at
524 (brackets and citations omitted). And where (as here)
the relevant agency process involves notice-and-comment
rulemaking, it is important that the agency be able to
22
evaluate the competing submissions of interested persons before committing itself to particular legal or factual conclusions. Granting review at this juncture would
subvert that administrative process by pressuring EPA
to commit (in its briefs and argument in this Court) to a
view of the statute before its rulemaking is complete.
Even if it were appropriate for the Court “to clarify
EPA’s legal framework” in order to guide the agency’s
new rulemaking, 20-1530 Pet. 21, this case would be an
unsuitable vehicle for providing that clarification. The
agency action that the court of appeals reviewed here
was not the Clean Power Plan itself, but the agency’s
repeal of that Plan. The court’s task thus was the “relatively discrete one” of reviewing “the sole ground on
which the EPA defend[ed] its abandonment of the Clean
Power Plan in favor of the ACE Rule”—namely, the
agency’s determination “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.” Pet. App. 50a-51a. If this
Court grants certiorari, its review likewise will be limited to that “relatively discrete” issue. Id. at 50a. The
Court will not have before it—as it may if it awaits the
completion of EPA’s new rulemaking—the broader
question “whether the approach of the ACE Rule is a
permissible reading of the statute as a matter of agency
discretion.” Id. at 50a-51a.
c. Petitioners contend that any “delay” in this Court’s
review “would carry serious and far-reaching costs.”
20-1530 Pet. 13. But petitioners face no burdens from
any Section 7411(d) rule on CO2 emissions while EPA’s
new rulemaking is ongoing. The court of appeals stayed
its vacatur of the repeal of the Clean Power Plan, and it
vacated the ACE Rule, which EPA had promulgated to
23
replace the Clean Power Plan. See pp. 15-16, supra. For
that reason, no Section 7411(d) CO2 rule is currently in
effect.
Petitioners suggest that the costs of delay include
the resources that will be devoted to EPA’s upcoming
rulemaking. See 20-1530 Pet. 20. But that new rulemaking, with its attendant costs, will proceed whether
or not this Court grants review. And because any new
rule that EPA adopts will inevitably be challenged in
court, it would be more cost-effective to consolidate all
issues for review at the conclusion of the process, rather
than to conduct review at both ends. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980) (explaining
that judicial intervention before agency action is final
“leads to piecemeal review which at the least is inefficient and upon completion of the agency process might
prove to have been unnecessary”).
Petitioners further argue that any delay in this
Court’s review would “leav[e] the industry in regulatory
limbo.” 20-1531 Pet. 22; see 20-1778 Pet. 23-24 (similar).
But until EPA finalizes its new rule, regulatory uncertainty is unavoidable. Indeed, even if this Court granted
review and held 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,” Pet. App. 51a, significant
uncertainty would remain. It would still be uncertain, for
example, what measures are properly viewed as applying “at and to” particular sources. Ibid.; see, e.g., 84 Fed.
Reg. at 32,558 (concluding that biomass co-firing (i.e.,
using trees and crops as fuel) is not a measure that “can
be applied to the source itself,” even though “the firing
of biomass occurs at a designated facility”). And there
would still be uncertainty about which of the various
24
measures that can be applied “at and to” the source constitute the “best” system of emission reduction. Pet. App.
51a; see, e.g., 84 Fed. Reg. at 32,543 (considering, but
ultimately rejecting, natural-gas co-firing and carbon
capture and storage as potential elements of the best
system of emission reduction). The Court’s review therefore would not provide any “final resolution” (20-1780
Pet. 34) of a plant’s obligations under Section 7411(d).
d. Petitioners observe that this Court granted a stay
of the Clean Power Plan five years ago. West Virginia,
136 S. Ct. at 1000; see, e.g., 20-1531 Pet. 2, 14. The
Court’s decision to take that step provides no sound reason to grant certiorari now.
The issue before the Court five years ago was
whether parties should be required to comply with the
Clean Power Plan while the Plan itself was under judicial review. Numerous States asserted that, if the Court
did not grant a stay, they would suffer substantial irreparable harms “as a direct result of the Plan.” States
Stay Appl. at 38, West Virginia, supra (No. 15A773).
Those alleged practical burdens were relevant not only
to the irreparable-harm prong of the stay analysis, but
also to the likelihood that the Court would grant certiorari if the D.C. Circuit found the Plan to be lawful. See
id. at 14 (arguing that, given “the wide-ranging impact
of the Power Plan,” there was a reasonable probability
that this Court would grant certiorari if the court of appeals upheld the Plan).
The present case comes to the Court in a substantially different posture. The Clean Power Plan has been
repealed and will not be reinstated, and petitioners do
not claim that they will suffer any harms as a direct result of either the Plan itself or the vacatur of the Plan’s
25
repeal. The basis for this Court’s intervention five years
ago therefore does not exist today.
2. Section 7411(d)(1)(A)(i) authorizes EPA to prescribe regulations with respect to any air pollutant “for
which air quality criteria have not been issued or which
is not included on a list published under section 7408(a)
of [Title 42] or emitted from a source category which is
regulated under section 7412 of [Title 42].” 42 U.S.C.
7411(d)(1)(A)(i) (emphasis added). In American Electric
Power Co. v. Connecticut, 564 U.S. 410 (2011) (AEP),
this Court relied specifically on Section 7411(d) in concluding that the Clean Air Act “ ‘speaks directly’ to
emissions of carbon dioxide from [existing power]
plants.” Id. at 424. Section 7411(d) was integral to the
Court’s holding that “the Clean Air Act and the EPA
actions it authorizes displace any federal common-law
right to seek abatement of carbon-dioxide emissions
from fossil-fuel fired powerplants.” Ibid.; see Pet. App.
144a-145a.
Relying on the italicized portion of Section
7411(d)(1)(A)(i) quoted above, petitioner Westmoreland
nevertheless contends that, because EPA regulates
emissions of hazardous air pollutants from coal-fired
power plants under Section 7412, the agency cannot
regulate CO2 emissions from those same sources under
Section 7411(d). 20-1778 Pet. 27-32. That contention
does not warrant this Court’s review.
a. Westmoreland’s argument lacks merit.
i. Section 7411(d)(1) establishes a framework under
which each State “establishes standards of performance
for any existing source for any air pollutant” that satisfies
specified criteria. 42 U.S.C. 7411(d)(1)(A). Each of the
“standards of performance” to which Section 7411(d)(1)
refers governs emissions of a specific pollutant from a
26
specific source category. The Clean Power Plan, for example, did not address CO2 emissions generally, or powerplant emissions generally, but CO2 emissions from power
plants. 2 Section 7412 likewise regulates emissions of
specific pollutants from specific source categories. See
42 U.S.C. 7412(c)(1) (directing EPA to publish “a list of
all categories and subcategories of major sources and
area sources * * * of the air pollutants listed pursuant
to subsection (b)”) (emphasis added); Pet. App. 132a
(“Section 7412’s regulatory scheme operates not broadly
on the source category, but only on its emissions of the
specified air pollutants.”).
The Section 7411(d)(1)(A)(i) language on which Westmoreland relies should be construed so as to harmonize
it with the larger statutory scheme, under which the relevant unit of regulation is the emission of a particular
pollutant from a particular source category. Under that
approach, a particular pollutant is “emitted from a
source category which is regulated under section 7412
of [Title 42],” 42 U.S.C. 7411(d)(1)(A)(i), if, but only if,
the source category is regulated under Section 7412
with respect to its emissions of that pollutant. As noted
above, Section 7412 does not authorize EPA to regulate
the general operations of power plants, but only to regulate their emissions of the specific hazardous pollutants
that are listed pursuant to Section 7412(b). Because
One of the criteria for regulation of emissions from an existing
source under Section 7411(d) is that the specific pollutant involved
must be one “to which a standard of performance under this section
would apply if such existing source were a new source.” 42 U.S.C.
7411(d)(1)(A)(ii). In determining whether that requirement is satisfied, the relevant inquiry is whether a standard of performance
applies to emissions of the same pollutant from new sources within
the same source category.
2
27
CO2 is not on that list, power plants’ emissions of that
pollutant are not “regulated under section 7412.” Ibid.
That reading would preclude regulation under Section
7411(d) of the hazardous-pollutant emissions that EPA
already regulates under Section 7412. It would ensure,
however, that EPA’s decision to regulate those emissions does not divest the agency of its pre-existing authority to regulate CO2 emissions, which are not regulated under the Hazardous Air Pollutants program.
ii. That reading of the disputed statutory language
best serves the intended purposes both of Section
7411(d) as a whole and of the specific exclusionary language on which Westmoreland relies. Section 7411(d)
performs a “gap-filling” role, by “cover[ing] all dangerous pollutants except those already regulated by
NAAQS or the Hazardous Air Pollutants provision.”
Pet. App. 124a. The exclusionary language contained in
Section 7411(d)(1)(A)(i) “refer[s] directly to specific air
pollutants listed for regulation under other statutory
provisions,” and thus “prevent[s] duplicate regulation
of the same harmful emissions.” Id. at 130a; see id. at
132a-133a.
The court of appeals’ reading of Section 7411(d)(1)(A)(i)
preserves that balance, ensuring that Section 7411(d) is
available when, but only when, a regulatory gap would
otherwise exist. Westmoreland’s approach, by contrast,
would preclude regulation under Section 7411(d) of CO2
emissions that are not regulated under either the NAAQS
or Hazardous Air Pollutant program. Cf. Pet. App. 136a
(explaining why listing of CO2 as a hazardous air pollutant would produce disruptive consequences). That would
extend the exclusionary language to a circumstance
where no threat of duplicative regulation exists, and it
28
would prevent Section 7411(d) from performing its intended gap-filling role.
iii. The court of appeals’ reading of Section
7411(d)(1)(A)(i) also harmonizes the Senate and House
amendments (see pp. 6-7, supra), both of which were enacted into law as part of the 1990 Amendments to the
Clean Air Act. Although those provisions contain different language, “[r]espect for Congress as drafter counsels against too easily finding irreconcilable conflicts in
its work.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1624 (2018). Thus, if the two provisions can be read to
have the same meaning, they should be. 3
Here, the meaning of the Senate amendment is plain.
By cross-referencing the list of pollutants published under Section 7412(b), it excludes from Section 7411(d)’s
coverage any hazardous-pollutant emissions that are already regulated under Section 7412. Pet. App. 130a. At
the same time, the Senate amendment leaves intact
EPA’s pre-existing authority under Section 7411(d) to
limit emissions of non-hazardous pollutants, which are
not subject to regulation under Section 7412, even when
EPA has invoked Section 7412 to regulate emissions of
“If a text contains truly irreconcilable provisions at the same
level of generality, and they have been simultaneously adopted, neither provision should be given effect.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 189 (2012)
(emphasis omitted). Here, the House and Senate amendments purport to revise the same text in Section 7411(d). If a court adopted
Westmoreland’s proposed reading of the House amendment, the
two amendments would be “truly irreconcilable” and “neither provision should be given effect.” Ibid. (emphasis omitted). That interpretive approach would leave intact EPA’s authority to regulate
CO2 emissions from existing power plants under Section 7411(d),
even though hazardous-pollutant emissions from the same sources
are regulated under Section 7412.
3
29
listed hazardous pollutants from the same sources. The
court of appeals correctly recognized that, if the House
amendment can reasonably be construed in the same
manner—and, as we explain above, it can—the court
should adopt that construction rather than reading the
House amendment in a way that places the two provisions at loggerheads. See id. at 129a-133a. 4
iv. As noted above, Section 7411(d)(1)(A) empowers
EPA to prescribe regulations “for any existing source
for any air pollutant [1] for which air quality criteria
have not been issued or [2] which is not included on a
list published under section 7408(a) of [Title 42] or emitted from a source category which is regulated under
section 7412 of [Title 42].” 42 U.S.C. 7411(d)(1)(A) (emphasis added). In light of Congress’s use of the word “or”
to separate clauses [1] and [2], Section 7411(d)(1)(A)
could be read literally to identify two independent bases
on which EPA may regulate pollutant emissions from
existing sources. See, e.g., Horne v. Flores, 557 U.S.
433, 454 (2009) (“Use of the disjunctive ‘or’ makes it
clear that each of the provision’s three grounds for relief is independently sufficient.”). Under that approach,
the undisputed fact that EPA has not issued air quality
criteria for CO2 emissions under the NAAQS program,
see 80 Fed. Reg. at 64,713, would mean that EPA can
regulate such emissions from existing power plants.
Despite its literal force, however, that reading is
clearly contrary to Section 7411’s purpose, and EPA has
The court of appeals identified one narrow circumstance, where
a hazardous pollutant listed under Section 7412(b) is emitted by a
source that EPA has not regulated under Section 7412, in which the
Senate and House amendments might produce different levels of
coverage. See Pet. App. 132a n.19. Because CO2 is not listed as a
hazardous air pollutant, that circumstance is not presented here.
4
30
not adopted it. That approach would expand Section
7411(d) well beyond its intended “gap-filling” role, Pet.
App. 133a, by allowing Section 7411(d) regulation of
emissions that are already regulated under the Hazardous Air Pollutants program, so long as they are not regulated under the NAAQS program as well. That would
produce the very sort of “duplicate regulation,” id. at
130a, that Section 7411(d)(1)(A)(i)’s exclusionary language is intended to prevent. But the conflict between
Section 7411(d)’s purpose and Westmoreland’s proposed reading is equally stark and fundamental. Westmoreland would preclude EPA from regulating under
Section 7411(d) a category of emissions—i.e., emissions
of CO2 and other non-hazardous pollutants from existing power plants—that are not regulated under either
the NAAQS or the Hazardous Air Pollutants program.
That approach “would put the House Amendment in direct conflict with not only the unambiguous language of
the Senate Amendment, but also with the Clean Air
Act’s gap-filling structure and purpose.” Id. at 135a;
see pp. 25-29, supra.
b. Westmoreland does not address clause [1] of the
statutory text discussed above. See p. 29, supra. Nor
does Westmoreland dispute the plain meaning of the
Senate amendment to clause [2]. See p. 28, supra. Instead, Westmoreland contends that the Senate amendment should be disregarded on the ground that it was
“deleted by another provision.” 20-1778 Pet. 29. The
House amendment, however, did not delete the Senate
amendment. Rather, Congress enacted both amendments at the same time. And to the extent that Westmoreland relies (ibid.) on the Law Revision Counsel’s
decision to incorporate the House amendment instead
of the Senate amendment into the revised version of
31
Section 7411(d) that appears in the United States Code,
that reliance is misplaced. The Statutes at Large constitute the legal evidence of the laws where, as here, the
relevant provisions of the Code have not been enacted
into positive law. See 1 U.S.C. 204(a); United States v.
Welden, 377 U.S. 95, 98 n.4 (1964) (noting that “the
Code cannot prevail over the Statutes at Large when
the two are inconsistent”) (citation omitted).
Westmoreland asserts that EPA has “admitted” that
the Senate amendment “was a scrivener’s error,” 20-1778
Pet. 29, and that EPA has “acknowledged,” in connection with a 2005 rulemaking, that “a literal reading of ”
the House amendment supports Westmoreland’s more
restrictive interpretation of Section 7411(d)(1)(A), id. at
27. Neither assertion is correct. In the court of appeals,
EPA argued that the Senate amendment was not a
scrivener’s error. See EPA C.A. Br. 183 (noting the argument “that the Senate-drafted amendment is a
‘scrivener’s error’ with no significance,” and stating
that the argument “fails”). And in the 2005 rulemaking
that Westmoreland cites, EPA made clear that Section
7411(d)(1)(A) is most reasonably understood to allow
the agency to regulate non-hazardous pollutants even
when those pollutants are emitted from source categories whose emissions of hazardous pollutants are regulated under Section 7412. See, e.g., 70 Fed. Reg. 15,994,
16,031 (Mar. 29, 2005) (concluding that, “[w]here a
source category is being regulated under section [74]12,
a section [74]11(d) standard of performance cannot be
established to address any [hazardous air pollutant]
listed under section [74]12(b) that may be emitted from
that particular source category”).
Westmoreland also relies (20-1778 Pet. 27, 37) on
the AEP Court’s statement that “EPA may not employ
32
§ 7411(d) if existing stationary sources of the pollutant
in question are regulated under the [NAAQS] program,
§§ 7408-7410, or the ‘hazardous air pollutants’ program,
§ 7412.” 564 U.S. at 424 n.7. Westmoreland’s reliance on
that description of the statutory scheme is misplaced.
That description, and in particular its reference to “the
pollutant in question,” ibid., is consistent with the court
of appeals’ focus on whether a source’s emissions of particular pollutants are regulated under Section 7412. See
Pet. App. 145a. That is particularly so given that the
AEP footnote described in parallel terms regulation under the NAAQS program and regulation under Section
7412. Section 7411(d)(1)(A)(i) cannot plausibly be read
to foreclose regulation under Section 7411(d) of all pollutant emissions from a source category that also emits
NAAQS criteria pollutants. See id. at 145a-146a.
c. In any event, the Court’s review of the interplay
between Section 7412 and Section 7411(d) would be
premature at this time. EPA may regulate hazardous
air pollutants from power plants under Section 7412
only if it “finds such regulation is appropriate and necessary.” 42 U.S.C. 7412(n)(1)(A). In 2012, EPA determined that it was “appropriate” and “necessary” to regulate power plants under Section 7412, and the agency
promulgated standards governing emissions of mercury
and other hazardous air pollutants from those sources.
77 Fed. Reg. 9304, 9306, 9363 (Feb. 16, 2012). In Michigan v. EPA, 576 U.S. 743 (2015), this Court held that
EPA had erred in failing to consider cost when making
its appropriate-and-necessary finding. Id. at 751.
Since then, EPA has promulgated two additional
rules—a 2016 rule in which the agency made a supplemental finding that regulation of power plants’ hazardouspollutant emissions remains appropriate and necessary,
33
even after considering cost, 81 Fed. Reg. 24,420, 24,421
(Apr. 25, 2016); and a 2020 rule in which EPA reversed
that supplemental finding but left the 2012 emission
standards in place under Section 7412(c)(9), 85 Fed.
Reg. 31,286, 31,286, 31,312 (May 22, 2020); see 42 U.S.C.
7412(c)(9) (providing criteria for delisting a source category). Petitions for review challenging those rules are
pending in the court of appeals, see, e.g., Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir.) (2016 rule);
American Academy of Pediatrics v. Regan, No. 20-1221
(D.C. Cir.) (2020 rule), including a petition filed by
Westmoreland challenging EPA’s decision to leave the
2012 emission standards in place, see 20-1160 C.A. Doc.
1857810, at 1 (Aug. 21, 2020). In February 2021, EPA
announced that it was reconsidering the 2020 rule, see
20-1221 C.A. Doc. 1885356, at 1-2 (Feb. 16, 2021), and
the petitions for review challenging the 2016 and 2020
rules are now being held in abeyance pending further
order of the court, see 16-1127 C.A. Doc. 1887125 (Feb. 25,
2021); 20-1221 C.A. Doc. 1885509, at 1 (Feb. 16, 2021);
20-1160 C.A. Doc. 1863712, at 1 (Sept. 28, 2020).
Because EPA’s regulation of power plants under
Section 7412 is itself the subject of ongoing litigation,
review to determine the effect of such regulation on
EPA’s authority under Section 7411(d) would be premature. If EPA’s regulation of power plants under Section 7412 remains in force when the agency promulgates
a new Section 7411(d) rule governing CO2 emissions
from existing power plants, Westmoreland can raise the
issue then in a petition for review, with the potential for
ultimate resolution of the question by this Court.
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CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Acting Solicitor General
BRUCE S. GELBER
Deputy Assistant Attorney
General
MEGHAN E. GREENFIELD
ERIC G. HOSTETLER
BENJAMIN CARLISLE
Attorneys
AUGUST 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.