Petition for Writ of Certiorari — North Dakota, Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefJun 18, 2021
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No. _________
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------STATE OF NORTH DAKOTA
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------WAYNE STENEHJEM
Attorney General
STATE OF NORTH DAKOTA
PAUL M. SEBY*
Special Assistant
Attorney General
MATTHEW SAGSVEEN
Solicitor General
MARGARET OLSON
Assistant Attorney General
NORTH DAKOTA OFFICE OF
ATTORNEY GENERAL
600 E. Boulevard Avenue
#125
Bismarck, ND 58505
Telephone: (701) 328-3640
Email: masagsve@nd.gov
maiolson@nd.gov
GREENBERG TRAURIG, LLP
1144 15th Street, Suite 3300
Denver, CO 80202
Telephone: (303) 572-6500
Facsimile: (303) 572-6540
Email: sebyp@gtlaw.com
*Counsel of Record
Counsel for Petitioner State of North Dakota
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Section 111(d) of the Clean Air Act (“CAA”), 42
U.S.C. § 7411(d), governs air emissions from stationary sources of air pollutants. Section 111(d) explicitly
requires the U.S. Environmental Protection Agency
(“EPA”) to develop guidelines for the States to create
their own Section 111(d) plans to establish “standards
of performance” for controlling air emissions from any
individual “existing source.” Section 111(d)(1) further
provides that EPA guidelines “shall permit” States, in
developing their plans, to “take into consideration,
among other factors, the remaining useful life of the
existing source to which such standard applies.”
The question presented is: Can EPA promulgate
regulations for existing stationary sources that require States to apply binding nationwide “performance
standards” at a generation-sector-wide level, instead of
at the individual source level, and can those regulations deprive States of all implementation and decision
making power in creating their Section 111(d) plans?
ii
PARTIES TO THE PROCEEDING
Petitioner is the State of North Dakota. North Dakota was a respondent-intervenor below.
Respondents who were respondents below are the
United States Environmental Protection Agency and
Michael Regan, in his official capacity as Administrator
of the United States Environmental Protection Agency.
Respondents who were petitioners below are, by
court of appeals case number, as follows:
In Case No. 19-1140: American Lung Association
and the American Public Health Association.
In Case No. 19-1165: State of New York, State of
California, State of Colorado, State of Delaware, State
of Hawaii, State of Illinois, State of Maine, State of
Maryland, Commonwealth of Massachusetts, People of
the State of Michigan, State of Minnesota, State of
New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania,
State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, State of Wisconsin, District of Columbia, City of Boulder (CO), City
of Chicago, City of Los Angeles, City of New York, City
of Philadelphia, and the City of South Miami (FL).
In Case No. 19-1166: Appalachian Mountain Club,
Center for Biological Diversity, Clean Air Council, Clean
Wisconsin, Conservation Law Foundation, Environmental Defense Fund, Environmental Law and Policy
Center, Minnesota Center for Environmental Advocacy,
Natural Resources Defense Council, and Sierra Club.
iii
PARTIES TO THE PROCEEDING—Continued
In Case No. 19-1173: Chesapeake Bay Foundation;
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL-CIO;
International Brotherhood of Electrical Workers, AFLCIO; United Mine Workers of America, AFL-CIO.
In Case No. 19-1175: Robinson Enterprises, Inc.,
Nuckles Oil Co., Inc., dba Merit Oil Co., Construction
Industry Air Quality Coalition, Liberty Packing Co.
LLC, Dalton Trucking, Inc., Norman R. “Skip” Brown,
Joanne Brown, The Competitive Enterprise Institute,
and the Texas Public Policy Foundation.
In Case No. 19-1176: Westmoreland Mining Holdings, LLC.
In Case No. 19-1177: City and County of Denver
(CO).
In Case No. 19-1179: The North American Coal Corp.
In Case No. 19-1185: Biogenic CO2 Coalition.
In Case No. 19-1186: Advanced Energy Economy.
In Case No. 19-1187: American Wind Energy Association and Solar Energy Industries Association.
In Case No. 19-1188: Consolidated Edison, Inc.,
Exelon Corp., National Grid USA, New York Power Authority, Power Companies Climate Coalition, Public
Service Enterprise Group Inc., and Sacramento Municipal Utility District.
iv
PARTIES TO THE PROCEEDING—Continued
Respondents who were petitioner-intervenors below are, by court of appeals case number, as follows:
In Case No. 19-1140: State of Nevada.
Respondents who were respondent-intervenors
below are, by court of appeals case number, as follows:
In Case No. 19-1140: States of West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma,
South Carolina, South Dakota, Texas, Utah, and Wyoming; Mississippi Governor Tate Reeves; Commonwealth
of Kentucky by and through Governor Andy Beshear;
Mississippi Public Service Commission; Indiana Michigan Power Co., Kentucky Power Co., Public Service Co.
of Oklahoma, Southwestern Electric Power Co., AEP
Generating Co., AEP Generation Resources, Inc., Wheeling Power Co.; America’s Power; Basin Electric Power
Cooperative; Chamber of Commerce of the United States
of America; Indiana Energy Association and Indiana
Utility Group; Murray Energy Corp.; National Rural
Electric Cooperative Association; Nevada Gold Mines and
Newmont Nevada Energy Investment; PowerSouth Energy Cooperative; Westmoreland Mining Holdings, LLC.
In Case Nos. 19-1175, 19-1176, and 19-1179: American Lung Association, American Public Health Association, Appalachian Mountain Club, Center for Biological
Diversity, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Defense Fund,
Environmental Law and Policy Center, Minnesota Center for Environmental Advocacy, Natural Resources
v
PARTIES TO THE PROCEEDING—Continued
Defense Council, Sierra Club; State of New York, State
of California, State of Colorado, State of Delaware,
State of Hawaii, State of Illinois, State of Maine, State
of Maryland, Commonwealth of Massachusetts, People
of the State of Michigan, State of Minnesota, State of
New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania,
State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, State of Wisconsin, District of Columbia, City of Boulder (CO), City
of Chicago, City of Los Angeles, City of New York, City
of Philadelphia, and the City of South Miami (FL).
Petitioners in current related Petitions for Certiorari to this Court of the below decision:
In Case No. 20-1530*: States of West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas,
Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and
Wyoming; and Mississippi Governor Tate Reeves.
In Case No. 20-1531*: The North American Coal
Corporation.
There are no other directly related proceedings.
* While the State of North Dakota generally supports the Petitions in Case Nos. 20-1530 and 20-1531, North Dakota submits
is own petition for writ of certiorari to raise the distinct important
issues of the clear statutory limitations on EPA’s authority under
Section 111(d), including principles of cooperative federalism protecting state sovereignty enshrined by Congress in the text of the
CAA and Section 111(d).
vi
STATEMENT OF RELATED CASES
The related case below is American Lung Association and American Public Health Association v. EPA,
et al., No. 19-1140, consolidated with Nos. 19-1165,
19-1166, 19-1173, 19-1175, 19-1176, 19-1177, 19-1179,
19-1185, 19-1186, 19-1187, 19-1188 (D.C. Cir. 2021),
with judgment entered January 19, 2021.
vii
TABLE OF CONTENTS
Page
Question Presented...............................................
i
Parties to the Proceeding ......................................
ii
Statement of Related Cases .................................
vi
Petition for a Writ of Certiorari...........................
1
Opinion Below ......................................................
1
Jurisdiction ..........................................................
1
Statutory Provisions Involved .............................
1
Introduction .........................................................
3
Statement of the Case .........................................
7
A.
B.
C.
D.
E.
Statutory and Regulatory Background .....
The Clean Power Plan ...............................
The Affordable Clean Energy Rule............
Procedural History ....................................
North Dakota’s Interests Under Section
111(d) .........................................................
Reasons for Granting the Petition .......................
The D.C. Circuit’s Decision Conflicts with
the Decisions of this Court on the Allocation of Federal-State Authority .................
II. The D.C. Circuit’s Decision Conflicts with
this Court’s Major Question Doctrine and
Clear Statement Rulings ...........................
III. The Issues Raised by this Petition are of
National Importance and Significance—
As Already Recognized by this Court ........
Conclusion............................................................
7
10
11
13
16
19
I.
19
28
32
39
viii
TABLE OF CONTENTS—Continued
Page
TABLE OF APPENDICES
Appendix A—Opinion of the United States
Court of Appeals for the District of Columbia
Circuit (Jan. 19, 2021)...................................... App. 1
Appendix B—42 U.S.C. § 7411 ........................ App. 216
Appendix C—North Dakota v. U.S. EPA, Application by the State of North Dakota for
Immediate Stay of Final Agency Action
Pending Appellate Review, 15A793 (U.S. Jan.
29, 2016) ....................................................... App. 232
ix
TABLE OF AUTHORITIES
Page
CASES
Alaska Dept. of Environmental
Conservation v. EPA,
540 U.S. 461 (2004) ..................................... 24, 25, 26
Am. Lung Ass’n v. EPA,
No. 19-1140 (Feb. 22, 2021) .....................................16
American Corn Growers Ass’n v. EPA,
291 F.3d 1 (D.C. Cir. 2002) ......................................27
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ........................................... 22, 23
Arkansas Electric Cooperative Corporation v.
Arkansas Public Service Commission,
461 U.S. 375 (1983) .................................................16
BCCA Appeal Group v. EPA,
355 F.3d 817 (5th Cir. 2003) ......................................7
Bond v. United States,
572 U.S. 844 (2014) ........................................... 29, 30
FERC v. Mississippi,
456 U.S. 742 (1982) .................................................37
General Motors Corp. v. United States,
496 U.S. 530 (1990) ...................................................7
Maryland v. King,
567 U.S. 1301 (2012).......................................... 11, 33
Michigan v. EPA,
576 U.S. 743 (2015) .................................................33
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001) .............................. 3, 7
x
TABLE OF AUTHORITIES—Continued
Page
New York v. FERC,
535 U.S. 1 (2002) .....................................................12
New York v. United States,
505 U.S. 144 (1992) ........................................... 37, 38
State of West Virginia, et al. v. EPA,
No. 15-1363 (D.C. Cir. Oct. 23, 2015) ......................10
Train v. Natural Resources Defense Council, Inc.,
421 U.S. 60 (1975) ................................. 21, 22, 27, 36
Union Elec. Co. v. EPA,
427 U.S. 246 (1976) .................................................22
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) ........................... 4, 28, 30, 31, 32
Virginia v. EPA,
108 F.3d 1397 (D.C. Cir.), modified on
other grounds, 116 F.3d 499 (1997) ........................27
STATUTES
16 U.S.C. § 3101 ..........................................................38
28 U.S.C. § 1254(1) ........................................................1
29 U.S.C. § 651 ............................................................37
33 U.S.C. § 1251 ..........................................................37
42 U.S.C. § 6901 ..........................................................37
42 U.S.C. § 7401(a)(3) ...................................................7
42 U.S.C. § 7407(a) ........................................................8
42 U.S.C. § 7410 ............................................................2
xi
TABLE OF AUTHORITIES—Continued
Page
42 U.S.C. § 7411 .................................................. passim
42 U.S.C. § 7479(3) ......................................................24
42 U.S.C. § 7491(b)(2)(A) ............................................36
42 U.S.C. § 7491(g)(2) .................................................36
42 U.S.C. § 7497(3) ......................................................24
42 U.S.C. § 7501(3) ......................................................37
42 U.S.C. § 7503(a)(2) .................................................37
42 U.S.C. § 7661f(c)(3)(B) ...........................................36
N.D. CENT. CODE § 54-17.5-01 .............................. 16, 29
REGULATIONS
80 Fed. Reg. 64,662 (Oct. 23, 2015) ................ 4, 5, 6, 28
84 Fed. Reg. 32,520 (July 8, 2019) .............. 6, 11, 12, 13
OTHER AUTHORITIES
https://www.americanbar.org/groups/litigation/
committees/environmental-energy/practice/
2016/021716-energy-supreme-court-stays-epasclean-power-plan/ ....................................................11
Inventory of U.S. Greenhouse Gas Emissions &
Sinks: 1990-2019 (Apr. 2021) (available at
https://www.epa.gov/ghgemissions/inventoryus-greenhouse-gas-emissions-and-sinks-19902019) ........................................................................36
xii
TABLE OF AUTHORITIES—Continued
Page
Janet McCabe, In Perspective: the Supreme
Court’s Mercury and Air Toxics Rule Decision,
EPA CONNECT (June 30, 2015), https://blog.
epa.gov/blog/2015/06/in-perspective-the-supremecourtsmercury-and-air-toxics-rule-decision/ ..........34
THE HILL (June 29, 2015, 10:38 AM), http://
thehill.com/policy/energy-environment/246423supreme-courtoverturns-epa-air-pollution-rule.........34
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner State of North Dakota respectfully petitions this Court for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
District of Columbia Circuit.
---------------------------------♦---------------------------------
OPINION BELOW
The opinion of the D.C. Circuit (App. 1-215) is reported at 985 F.3d 914 and reproduced in the appendix
hereto (“App.”).
---------------------------------♦---------------------------------
JURISDICTION
The D.C. Circuit entered judgment on January 19,
2021. This petition is timely filed consistent with the
Court’s March 19, 2020 Order. The Court has jurisdiction under 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
STATUTORY PROVISIONS INVOLVED
Section 111 of the Clean Air Act (“CAA”), 42 U.S.C.
§ 7411 provides in pertinent part:
(a)
(1) The term “standard of performance” means a standard for emissions
of air pollutants which reflects the degree of emission limitation achievable
2
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.
...
(d) Standards of performance for existing
sources; remaining useful life of source
(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that
provided by section 7410 of this title
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 this
title or emitted from a source category which is regulated under section
7412 of this title 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. Regulations of the Administrator under this paragraph shall
3
permit the State in applying a standard of performance to any particular
source under a plan submitted under
this paragraph to take into consideration, among other factors, the remaining useful life of the existing
source to which such standard applies.
The full relevant provisions of the Clean Air Act are set
forth at App. 216-231.
---------------------------------♦---------------------------------
INTRODUCTION
This case raises important and recurring issues
concerning the ability of the States to exercise their
statutory authority under the CAA—one of the Nation’s most significant and far-reaching environmental
statutes. Described as an “experiment in federalism,”
Michigan v. EPA, 268 F.3d 1075, 1078 (D.C. Cir. 2001)
(quotation omitted), the CAA assigns to the States
such as North Dakota the primary role in air pollution
prevention and control. One of the States’ principal responsibilities under the Act is to implement and enforce standards of performance for existing sources of
air pollution under Section 111(d), using the States’ expertise in applying source-specific considerations and
factors to controlling air emissions from those sources.
To that end, Section 111(d) directs EPA’s Administrator to “prescribe regulations which shall establish
a procedure . . . under which each State shall submit
to the Administrator a plan which (A) establishes
4
standards of performance for any existing source for
any air pollutant . . . and (B) provides for the implementation and enforcement of such standards of performance.” 42 U.S.C. § 7411(d)(1). In establishing these
regulations, Congress specifically directed the Administrator to “permit the State” in creating its Section
111(d) plan to “apply[ ] a standard of performance to
any particular source” and “to take into consideration,
among other factors, the remaining useful life of the
existing source to which such standard applies.” Id.
The primary “regulatory authority” and decisionmaker
in setting standards of performance for individual specific sources under Section 111(d) is therefore the
States. Within that primary authority the CAA also
grants to States considerable discretion, including requiring that States are afforded the ability to “take
into consideration” source specific factors such as, inter
alia, the remaining useful life of the source when creating their Section 111(d) plans.
Ignoring these statutory directives, EPA promulgated the regulation entitled Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric
Utility Generating Units, 80 Fed. Reg. 64,662 (Oct.
23, 2015) (the “Clean Power Plan” or “CPP”), which
usurped the States’ primary role in regulating existing
sources under Section 111(d). Having “discover[ed] in
a long-extant statute an unheralded power to regulate
a significant portion of the American economy,” Utility
Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014)
(“UARG”), EPA sought to wield that power through
the CPP to force the States to shift the production of
5
energy away from existing coal-fired power plants in
favor of natural gas, wind, and solar facilities.
EPA claimed in the CPP the authority to set fixed
sector-wide and state-wide emissions standards of
performance (measured by pounds of carbon dioxide
per megawatt hour, or CO2 lb/MWh) applied to the
electricity generating sector in a State as a whole that
were impossible for certain individual existing sources
(such as coal and natural gas power plants) to meet
under any reasonable operating scenario. The CPP ignored the States’ statutorily-mandated primary role
under Section 111(d) for creating Section 111(d) plans
that set standards of performance for individual existing sources while applying source-specific considerations. The CPP thus did not provide “guidelines” for
the States to use to set facility-specific emissions
standards, but rather imposed sector-wide emission requirements aimed at forcing States to shift away from
coal-fired electricity generation. Reaching past the
States, EPA was effectively requiring these existing
sources to shut down, or to subsidize investment in alternate energy sources that EPA preferred in order to
offset their noncompliant emissions—a regulatory
scheme known as generation shifting. See 80 Fed. Reg.
at 64,769 (explaining that coal and gas plants can reduce their emissions by buying electricity from EPA
preferred generators, thus shifting generation elsewhere). The EPA’s stated “authority for this rule” was
§ 7411(d)—the very section in which Congress had designated States as the primary regulator to “establish
6
standards of performance for any existing source.” Id.
at 64,710.
Before the CPP could ever take effect, this Court
stayed implementation of the rule. EPA subsequently
conceded that the CPP exceeded EPA’s statutory authority, repealed the CPP and promulgated a replacement rule governing greenhouse gas (“GHG”) emissions
from EGUs that returned to the States their rights and
authorities provided for under the CAA. Repeal of the
Clean Power Plan; Emissions 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) (the “ACE Rule”).
The D.C. Circuit vacated the ACE Rule and the
rule’s repeal of the CPP, holding (without reference to
this Court’s stay of the CPP) that the EPA erred in concluding that it did not have the authority to reach past
the States and directly promulgate standards of performance applicable to individual existing sources. In
effect, the D.C. Circuit’s opinion granted EPA authority
to force generation shifting for States under Section
111(d).
The D.C. Circuit’s decision resurrects the jurisdictional overreach EPA attempted in the CPP that was
stayed by this Court, and usurps the States’ statutory
authority under Section 111(d) of the CAA to create
State Section 111(d) plans that establish and implement standards of performance for individual existing sources, while taking into account source specific
7
factors that the States are best equipped to evaluate.
The question presented is a recurring one of national
importance, arising not only under the CAA but in
many other federal statutes with similar principles of
cooperative federalism that allocate authority between
the States and federal government. This Court should
grant certiorari to correct the grave error in the D.C.
Circuit’s decision granting EPA significant regulatory
powers Congress never authorized under Section
111(d), and to preserve the delicate balance of cooperative federalism that Congress established under the
CAA and similar statutes.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
A. Statutory and Regulatory Background.
The CAA establishes “a comprehensive national
program that ma[kes] the States and the Federal Government partners in the struggle against air pollution.” General Motors Corp. v. United States, 496 U.S.
530, 532 (1990). In this “experiment in cooperative federalism,” Michigan v. EPA, 268 F.3d at 1083, the CAA
establishes that improvement of the nation’s air quality will be pursued “through state and federal regulation,” where controlling the sources of air pollution is
the primary responsibility of the States. BCCA Appeal
Group v. EPA, 355 F.3d 817, 821-822 (5th Cir. 2003);
see also 42 U.S.C. § 7401(a)(3) (“air pollution prevention . . . and air pollution control at its source is the primary responsibility of States and local governments”)
8
(emphasis added); and 42 U.S.C. § 7407(a) (“Each State
shall have the primary responsibility for assuring air
quality within the entire geographic area comprising
such State. . . .”).
Section 111 of the CAA, 42 U.S.C. § 7411, established the process for setting “standards of performance” for new and existing stationary sources.
Section 111(b) then governs how EPA shall set
standards of performance for new stationary sources,
and under Section 111(b) it is relatively undisputed
that EPA wields that power alone. However, mixed into
Section 111 are the procedures governing the creation
of standards for already existing sources, which can be
found in Section 111(d), 42 U.S.C. § 7411(d).
Section 111(d) implements the CAA’s cooperative
federalism approach as to existing sources by requiring EPA to “establish a procedure” for States to submit
Section 111(d) plans that “establish[ ] standards of
performance for [certain] existing source[s] for any air
pollutant[s].” Id. at (d)(1). Under Section 111(d), EPA
may not set emission reduction requirements for
States or existing sources. EPA instead is only authorized to “establish a procedure” (42 U.S.C. § 7411(d)(1))
for States to submit plans containing State performance standards applying EPA’s BSER guidelines.
EPA then reviews State plans to determine if the
States’ performance standards are “satisfactory” (42
U.S.C. § 7411(d)(2)(A)), based on the BSER guidelines
(not mandates) established by EPA.
9
A “standard of performance” is “a standard for
emissions of air pollutants which reflects the degree of
emission limitation achievable” by applying the “best
system of emission reduction” (“BSER”) to the source,
“taking into account the cost of achieving such reduction and any nonair quality health and environmental
impact and energy requirements [EPA] determines
has been adequately demonstrated.” Id. at (a)(1) (emphasis added). Following the requirements that standards of performance be “achievable” and “adequately
demonstrated,” Section 111(d) requires that “[r]egulations of the Administrator under this paragraph shall
permit the State in applying a standard of performance
to any particular source under a plan submitted under
this paragraph to take into consideration, among other
factors, the remaining useful life of the existing source
to which such standard applies.” 42 U.S.C. § 7411(d)(1)
(emphasis added). Thus, States are given the primary
authority to create their own 111(d) plans for existing
sources, subject to EPA review and approval based on
EPA’s BSER guidelines, and Congress specifically requires that States be able to consider source-specific
factors when creating those plans and applying the
BSER.
Under Section 111(d), EPA may not set emission
reduction requirements for States or existing sources.
EPA instead is only authorized to “establish a procedure” (42 U.S.C. § 7411(d)(1)) for States to submit
plans containing State performance standards applying EPA’s BSER. EPA then reviews State plans to
10
determine if the performance standards are “satisfactory” (42 U.S.C. § 7411(d)(2)(A)).
These express statutory limitations on EPA’s authority are reinforced by part 2 of Section 111(d), which
establishes when EPA may step into the shoes of a
State who failed to submit a satisfactory plan for regulating emissions from existing sources. If a State fails
to submit an adequate plan, EPA, in creating an adequate replacement “plan prescribed under” Section
111(d), “shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources.” 42 U.S.C. § 7411(d)(2). Thus, plans for
regulating existing sources within States must always
provide for source-specific considerations, and may not
apply categorically to the entire generating sector.
B. The Clean Power Plan.
After the CPP was promulgated in 2015, it was immediately challenged in the U.S. Court of Appeals for
the District of Columbia Circuit, by 159 different petitioners, including more than half of the States. State
of West Virginia, et al. v. EPA, No. 15-1363 (and consolidated cases) (D.C. Cir. Oct. 23, 2015). A stay was
sought with the D.C. Circuit, which the Circuit denied.
Id., Doc. No. 1594951.
Subsequently, five separate applications were filed
with this Court seeking to stay the CPP, including an
application from the State of North Dakota. See Application by the State of North Dakota for Immediate
Stay of Final Agency Action Pending Appellate Review,
11
State of North Dakota v. EPA, No. 15A793 (Jan. 29,
2016), App. 232-267. On February 9, 2016 the full
Court granted the five stay applications without qualification, halting the implementation or enforcement
of the CPP pending disposition of the D.C. Circuit petitions. Order in Pending Case, North Dakota, et al. v.
EPA, et al., Nos. 15A793, 15A773, 15A776, 15A778,
15A787 (February 9, 2016). This marked the first
time this Court had stayed a federal regulation before initial review by a federal appeals court. See
https://www.americanbar.org/groups/litigation/committees/
environmental-energy/practice/2016/021716-energysupreme-court-stays-epas-clean-power-plan/.
While this Court did not issue an opinion in granting the stay of the CPP, the Court’s jurisprudence indicates that in order to issue the stay, the Court found
there was: “(1) ‘a reasonable probability’ that the Court
w[ould] grant certiorari, (2) ‘a fair prospect’ that the
Court w[ould] then reverse the decision below, and (3)
‘a likelihood that irreparable harm [will] result from
the denial of a stay.’ ” Maryland v. King, 567 U.S. 1301,
1302 (2012).
C. The Affordable Clean Energy Rule.
After this Court stayed implementation of the
CPP, EPA repealed the CPP, conceded that the CPP exceeded EPA’s statutory authority, and promulgated the
ACE Rule on July 8, 2019. 84 Fed. Reg. 32,520 (“the
Agency has determined that the CPP exceeded the
EPA’s statutory authority under the [CAA]”). Upon
12
promulgation of the ACE Rule, the petitions challenging the CPP Rule in the D.C. Circuit were dismissed,
although they had been heard by that court on argument en banc. App. 1-215.
In promulgating the ACE Rule, EPA sought to correct its clear prior jurisdictional overreach by establishing a BSER that the States could apply to establish
performance standards to specific categories of existing generation sources, rather than upending the
entire generation sector by mandating generation
shifting with rigidly set CO2 lb/MWh mandates that
did not allow States to apply the BSER to an individual
generation source to determine a standard of performance. The ACE Rule correctly rejected the notion that
EPA has the authority to regulate energy generation
and returned to State authority “matters traditionally
reserved for States: ‘administration of integrated resource planning and . . . utility generation and resource portfolios.’ ” ACE Rule, 84 Fed. Reg. at 32,529
(quoting New York v. FERC, 535 U.S. 1, 24 (2002)).
In repealing the CPP, EPA admitted that it had
“read the statutory term ‘best system of emission reduction’ so broadly as to encompass measures the EPA
had never before envisioned in promulgating performance standards under [§ 7411].” ACE Rule, 84 Fed.
Reg. at 32,523. “This was the first time the EPA interpreted the [best system of emission reduction] to authorize measures wholly outside a particular source.”
Id. at 32,526. To correct this error, the ACE Rule went
on to restore the Federal-State relationship established by the statute, with EPA setting guidelines in
13
BSER tied to specific categories of sources of emissions,
which the States use to “set rate-based standards of
performance . . . generally be in the form of the mass
of carbon dioxide emitted per unit of energy (for example pounds of CO2 per megawatt-hour or lb/MWh).” Id.
at 32,554/3.
D. Procedural History.
Like the Clean Power Plan, the ACE Rule was met
with multiple challenges that were consolidated in the
D.C. Circuit. Most petitioners objected to the repeal of
the Clean Power Plan, and argued that Section 111(d)
provided EPA authority to mandate hard limits in
standards of performance applied across the entire
generation sector (e.g. pounds of carbon dioxide per
megawatt-hour or CO2lb/MWh) that would require
generation shifting. Under these theories, EPA’s repeal
was unlawful because it was based on a narrower view
of EPA’s authority than intended by Congress. North
Dakota intervened in the D.C. Circuit litigation below
as a respondent-intervenor in support of the ACE Rule.
In the opinion below, a divided three-judge panel
of the D.C. Circuit vacated the ACE Rule, with the
per curiam majority holding that EPA erred in concluding that it did not have the authority to promulgate the nation-wide generation sector mandates
under the CPP. The per curiam opinion concluded that
EPA’s reading of 111(d) as requiring at-the-source controls was not “the only permissible interpretation of
the scope of EPA’s authority” under Section 111(d),
14
holding that EPA’s repeal of the CPP could not be upheld as it had not considered the “exercise of discretion” that the D.C. Circuit read into section 111(d).
Absent from the D.C. Circuit’s opinion was any mention of this Court’s unprecedented nation-wide stay of
the CPP.
Further, despite admitting that “the statutory role
of the best system of emission reduction under Section
[111(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,” the D.C.
Circuit insisted that the mandated generation shifting
requirements of the CPP somehow fit within Section
111(d)’s regulatory structure. App. 103. The D.C. Circuit opinion then dismissed cooperative federalism
concerns implicated in the major questions doctrine,
noting that the CPP “in fact, afforded States considerable flexibility in choosing how to calculate and meet
their emissions targets.” App. 98. According to the D.C.
Circuit, a mandated generation shifting scheme that
applied hard CO2lb/MWh standards of performance
across the entire generation sector gave the states
“considerable flexibility” in regulating individual existing sources. Inexplicably, the decision emphasized that
“Congress imposed no limits” in Section 111(d) other
than directives to consider costs, nonair health and environmental impacts, and energy requirements. App.
59.
Judge Walker dissented on the grounds that Section 111(d) did not authorize what EPA had attempted
15
in the CPP. Judge Walker would have held that EPA
both “was required to repeal [the CPP] and wrong to
replace it” under Section 111(d). App. 176 (Walker, J.,
concurring in part, concurring in the judgment in part,
and dissenting in part). He explained that Congress
disabled EPA from regulating pollutants “emitted from
a source category which is regulated under [Section
112]”—and coal-fired power plants are one of those already-regulated sources. Id. at 192 (quoting 42 U.S.C.
§ 7411(d) (emphasis in original)).
Addressing the plain text of Section 111(d), Judge
Walker wrote that “[h]ardly any party in this case
makes a serious and sustained argument that § 111[d]
includes a clear statement unambiguously authorizing
the EPA to consider offsite solutions like generation
shifting.” Id. at 175. Judge Walker stated that the CPP
was a “groundbreaking” rule for attempting to reshape
the power sector, it aimed to reduce carbon emissions
“equal to the annual emissions from more than 166
million cars,” and it would have exacted “almost unfathomable costs” to do so. Id. at 184-185 (citation omitted). Thus, “because the [CPP] implicates ‘decisions of
vast economic and political significance,’ Congress’s
failure to clearly authorize the [CPP] means the EPA
lacked the authority to promulgate it.” Id. at 175.
Finally, Judge Walker explained that even if Section 111(d) fairly showed that Congress “allowed generation shifting” (which he concluded it did not) that
would result in an unconstitutional delegation because
Congress did not “clearly require it.” Id. at 189 (emphasis in original). Congress must decide “what major
16
rules make good sense,” and cannot shirk that duty by
passing off critical questions to “the impenetrable halls
of an administrative agency.” Id. at 190.
After the decision, the EPA sought and secured a
stay of the mandate. Order, Am. Lung Ass’n v. EPA, No.
19-1140 (Feb. 22, 2021). EPA is now considering a new
federal regulation consistent with the D.C. Circuit’s decision.
E. North Dakota’s Interests Under Section 111(d).
As a major energy producing state (from significant lignite coal, oil, natural gas, and wind resources),
North Dakota has fundamental sovereign interests in
regulating its natural resources and their uses. The
North Dakota legislature has declared it to be an essential government function and public purpose to foster and encourage the wise use and development of
North Dakota’s vast lignite coal resources to maintain
and enhance the economic and general welfare of
North Dakota. N.D. CENT. CODE § 54-17.5-01. North
Dakota’s statutory scheme is consistent with the
scheme recognized by Congress and this Court, namely
that “the regulation of utilities is one of the most important of the functions traditionally associated with
the police power of the States.” Arkansas Electric Cooperative Corporation v. Arkansas Public Service Commission, 461 U.S. 375, 377 (1983).
The real-world effect of the D.C. Circuit’s decision
reviving and sanctioning EPA’s jurisdictional overreach in the CPP is that North Dakota’s authority to
17
create its own Section 111(d) plan that establishes emission “standards of performance” for existing power
plants in the State is effectively extinguished. EPA is
now free to promulgate new Section 111(d) regulations
depriving North Dakota of its statutory right to apply
source-specific factors in individual sources in its Section 111(d) plan in setting those standards of performance, including regulations such as the inflexible,
generation-shifting requirements of the CPP.
For example, the CPP’s draconian mandate setting
the BSER as hard CO2 lb/MWh limits would have precluded North Dakota from considering the source-specific factors Section 111(d) mandates that States be
allowed to consider such as the remaining useful life of
the coal-fired facilities. The CPP, as applied to North
Dakota, would have required a dramatic and immediate shift away from lignite coal-powered electric
generating facilities in favor of gas-powered plants or
renewable sources.
North Dakota, using the EPA’s Integrated Planning Model (“IPM”) and related IPM model documentation files created to analyze the impacts of the CPP,
calculated that the CPP would have required North
Dakota to reduce its carbon dioxide (CO2) emission
rate by 44.9%, more than all but two other states. App.
246. The 427 MW Coyote Station, two miles south of
Beulah, North Dakota, would have been forced to close
in 2016 in the rate-based application of the CPP. Id. at
249. This scenario would also have included the shutdown of Unit 1 and Unit 2 at the R.M. Heskett Station
near Mandan, North Dakota, in 2016 and 2018
18
respectively, where those units respectively consumed
120,991 and 396,712 tons of lignite from the Beulah
Mine in North Dakota in 2014; the 250 MW Milton R.
Young Station Unit 1, four miles southeast of Center,
North Dakota, which used 1,545,190 tons of lignite coal
in 2014; the Spiritwood Station which combusted
891,017 tons of lignite in 2014; and the 558 MW Coal
Creek Station Unit 1, located between Underwood and
Washburn, North Dakota, would close in 2018. Id. at
249-252. Further, the closure of these coal-fired electric
generating facilities would have required multiple lignite coal mines in the State to also close and at least
one mine to severely curtail production.
Thus, the D.C. Circuit’s erroneous conclusion in
the opinion below—that EPA has the novel and unprecedented power it previously attempted to wield
in the CPP to set BSER guidelines that essentially
mandate “standards of performance” be applied at the
generation sector level, rather than to individual coalfueled electric generating facilities—deprives North
Dakota of the ability to make source-specific decisions
for implementing standards of performance as required by the CAA. The reach of the D.C. Circuit’s decision is potentially enormous. Section 111(d) applies
to all existing stationary sources—including the oil
and gas industry. As the second largest oil producing
State, North Dakota could face further infringement
upon its sovereign rights to regulate those existing
sources if EPA uses the D.C. Circuit’s decision as a
19
license to mandate standards of performance for all
existing sources in future rulemakings.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
I.
The D.C. Circuit’s Decision Conflicts with
the Decisions of this Court on the Allocation of Federal-State Authority.
The D.C. Circuit’s decision in this case that Section
111(d) grants EPA sufficient discretion to mandate a
generation shifting regulatory scheme misreads the
text of the CAA and is contrary to this Court’s prior
decisions setting the bounds of the cooperative federalism required by the CAA. Section 111(d) embodies the
fundamental cooperative federalism structure of the
CAA by requiring that regulations promulgated by the
EPA targeting existing generation sources “shall permit the State in applying a standard of performance to
any particular source under a plan submitted under
this paragraph to take into consideration, among other
factors, the remaining useful life of the existing source
to which such standard applies.” 42 U.S.C. § 7411(d)(1)
(emphasis added). Under the plain language of Section
111(d), EPA exceeds its authority if it promulgates a
BSER which ties the States’ hands in establishing Section 111(d) plans by removing their ability to (1) “establish[ ] standards of performance for any existing
source” and (2) “take into consideration” source specific
factors in applying the standards of performance “to
any particular source.”
20
The D.C. Circuit’s opinion now grants a license to
EPA to create new Section 111(d) regulations, as it did
in the CPP, which mandate hard CO2lb/MWh BSER
across the entire generation sector and require States
to implement hard, qualitative emission limits in setting standards of performance for individual sources
in their Section 111(d) plans. This would effectively
prohibit States from taking into consideration sourcespecific factors in their Section 111(d) plans. The CAA,
however, clearly mandates that EPA “shall prescribe
regulations” which allow the States to then create Section 111(d) plans that apply the BSER to “establish[ ]
standards of performance for any existing source,” and
which plans “shall permit the State in applying a
standard of performance to any particular source . . .
to take into consideration, among other factors, the
remaining useful life of the existing source” in their
Section 111(d) plans. 42 U.S.C. § 7411(d)(1) (emphasis
added). Because the CAA and Section 111(d) implement this principle of cooperative federalism, by requiring that EPA establish a procedure by which
States then submit a Section 111(d) plan to EPA which
(1) “establishes standards of performance for any existing source for any air pollutant” and (2) “provides
for the implementation and enforcement of such standards of performance,” id., EPA does not have the authority to remove the States’ expressly stated
statutory role in that process by creating a hard
CO2lb/MWh BSER that deprives the States of their
authority to set standards of performance for specific
existing sources in their Section 111(d) plans, and the
D.C. Circuit’s decision below is therefore in error.
21
While Section 111(d) does allow the EPA to “prescribe regulations,” id., governing how States will submit plans for establishing standards of performance
for existing sources, only if a State “fails to submit a
satisfactory plan,” may EPA then “prescribe a plan” for
that State, including “enforcing provisions of such plan
in cases where the State fails to enforce them.” Id. at
(d)(2)(A)-(B). However, in “promulgating a standard of
performance” for a State that failed to submit a satisfactory plan, EPA continues to be required to “take into
consideration, among other factors, remaining useful
lives of the sources in the category of sources to which
such standard applies.”
Five decades ago, this Court recognized the CAA’s
“division of responsibilities” between the States and
the federal government in Train v. Natural Resources
Defense Council, Inc., 421 U.S. 60, 79 (1975). There, the
Court looked at Section 110 of the CAA and acknowledged that EPA has the “responsibility for setting the
national ambient air standards.” But “[j]ust as plainly,”
the Court emphasized, the EPA “is relegated by the
[CAA] to a secondary role in the process of determining
and enforcing the specific, source-by-source emission
limitations which are necessary if the national standards it has set are to be met.” Id. (emphasis added). As
the Court explained, “[t]he Act gives the [EPA] no authority to question the wisdom of a State’s choices of
emission limitations if they are part of a plan which
satisfies the [CAA’s] standards.” Id. (emphasis added).
“[S]o long as the ultimate effect of a State’s choice of
emission limitations is compliance with the national
22
standards for ambient air, the State is at liberty to
adopt whatever mix of emission limitations it deems
best suited to its particular situation.” Id.; see also Union Elec. Co. v. EPA, 427 U.S. 246, 269 (1976) (“Congress
plainly left with the States, so long as the national
standards were met, the power to determine which
sources would be burdened by regulation and to what
extent.”).
Just like EPA is limited in enforcing the NAAQS
under Section 110 of the CAA, EPA is limited to regulating existing sources under Section 111(d) by “establish[ing] a procedure similar to that provided by
[Section 110] of this title under which each State shall
submit to the Administrator a plan” for establishing
standards of performance for existing sources. 42
U.S.C. § 7411(d)(1) (emphasis added). Congress, by this
reference, intended that the States’ processes for creating Section 111(d) plans would mirror those under
Section 110.
This Court previously confirmed Section 111(d)’s
cooperative federalism structure in American Electric
Power Co. v. Connecticut (“AEP”), where the Court
stated that EPA’s duties under Section 111(d) included
“regulation of existing sources” once a category of
sources was established under Section 111(b). 564 U.S.
410, 424 (2011). The Court went on to acknowledge
that “for existing sources, EPA issues emissions guidelines,” and “in compliance with those guidelines and
subject to federal oversight, the States then issue performance standards for stationary sources within their
jurisdiction.” Id. (emphasis added). The D.C. Circuit
23
decision relies on AEP for the proposition that Congress directed EPA to “regulate carbon-dioxide emissions from [new, modified, and existing] power plants
using the regulatory tools laid out in Section 7411,”
App. 94, but entirely fails to recognize and adhere to
this Court’s emphasis in AEP that Section 111(d) restricts EPA to creating guidelines that apply to generation sources “within the same category,” which
guidelines States then use to “issue performance
standards” that can be applied to individual “stationary sources” within the States’ jurisdiction. 564 U.S. at
424. The Court recognized that the CAA “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[.]” 564 U.S. at 428 (internal citations omitted).
Instead, the D.C. Circuit reached the opposite conclusion, stating “[b]ecause we hold that EPA erred in
concluding Section [111] unambiguously requires that
the best system of emission reduction be source specific, we necessarily reject the ACE Rule’s exclusion
from Section [111(d)] of compliance measures it characterizes as non-source-specific.” App. 85. The conflict
with the Court’s prior decision in AEP is stark, because
if EPA is not limited to source-specific guidelines, then
the States no longer retain the autonomy required under Section 111(d) to meet those guidelines.1
1
Thus, the D.C. Circuit’s statement that States “retain the
choice of how to meet those guidelines through standards of
24
This Court has also previously weighed in on “the
division of responsibilities” set out in the CAA, has frequently held EPA to the limits of its congressionallydelegated authority, and has consistently protected the
authority reserved to the States. In Alaska Dept. of Environmental Conservation v. EPA, the Court examined
whether EPA had the authority to block a permitting
decision that was clearly left to the State of Alaska’s
discretion under the cooperative federalism of the
CAA. 540 U.S. 461 (2004) (“Alaska v. EPA”). At issue
was the Prevention of Significant Deterioration (“PSD”)
program, which sets up a regulatory system by which
States permit new air pollutant emitting facilities
prior to construction by requiring in the permit that
each individual facility is equipped with best available
control technology (“BACT”). Id. at 468. BACT is defined in CAA § 7479(3) as “an emission limitation
based on the maximum degree of [pollutant] reduction
. . . which the permitting authority, on a case-by-case
basis, taking into account energy, environmental, and
economic impacts and other costs, determines is
achievable for [the] facility. . . .” Id.
In analyzing the cooperative federalism required
by the CAA, this Court noted that § 7479(3) “entrusted
state permitting authorities with initial responsibility
to make BACT determinations ‘case-by-case.’ ” Id. at
488 (Citing to 42 U.S.C. § 7497(3)). “A state agency,”
this Court noted, “is best positioned to adjust for local
differences in raw materials or plant configurations,
performance tailored to their various sources,” App. 97, under a
mandated generation shifting scheme is patently untrue.
25
differences that might make a technology ‘unavailable’
in a particular area.” Id. It is only once a State has
made its BACT determination that EPA can participate by reviewing the reasonableness of that determination. Id. at 489 (“EPA claims no prerogative to
designate the correct BACT; the Agency asserts only
the authority to guard against unreasonable designations.”). Ultimately, the Court concluded that “EPA
has supervisory authority over the reasonableness of
state permitting authorities’ BACT Determinations,”
but noted that authority could only be used after the
State had made its initial BACT determination, and
could not be used to designate the correct BACT determination from the outset. Id. at 502.
Much like the BACT determination at issue in
Alaska v. EPA, the “plan” that each “State shall submit
to the” EPA under Section 111(d) requires that the
States be afforded the opportunity, “in applying a
standard of performance to any particular source” to
“take into consideration, among other factors, the remaining useful life of the existing source to which such
standard applies.” 42 U.S.C. § 7411(d)(1) (emphasis
added). The plain language of Section 111(d) requires
that States be allowed to use their expertise, just like
in BACT determinations, to apply source specific factors in a case-by-case manner to these determinations.
And, just as in Alaska v. EPA, EPA retains a secondary
oversight over States’ 111(d) plans whereby EPA can
“prescribe a plan for a State in cases where the State
fails to submit a satisfactory plan.” Id. at (d)(2). The
only requirement is that EPA first allow States the
26
flexibility to create their 111(d) plans—and to consider
source specific factors when doing so.
The D.C. Circuit’s opinion, basically ratifying the
CPP, fails to meet these basic requirements. Unlike in
Alaska v. EPA, where EPA openly acknowledged it did
not have the authority to mandate any particular
BACT outcome at the initial decision stage that was
reserved to States, under the CPP, EPA mandated a
hard CO2lb/MWh standard of performance across the
entire generation sector, which entirely foreclosed the
States from applying their own expertise to their Section 111(d) plans. The D.C. Circuit’s decision upholding
this jurisdictional overreach thus grants EPA the authority, through its “guidelines,” to mandate exactly
how a State’s 111(d) plan will read before it is written—a result that is in conflict with the Court’s decision in Alaska v. EPA.
This is not to say that States have unfettered authority or discretion. States must use EPA’s guidelines
(i.e., the BSER) in setting their Section 111(d) plans,
and EPA then retains the authority to review the
States’ plans. Cf. Alaska, 540 U.S. at 482. However, the
BSER upon which the States rely must be one that
EPA is statutorily authorized to promulgate under
Section 111(d) (i.e., guidance for control measures that
can be applied at the source, not a binding mandate for
the energy sector as a whole, divorced from sources of
emissions). Further, EPA’s BSER guidelines cannot be
transformed into mandates that extinguish the States’
authority to establish performance standards through
their Section 111(d) plans.
27
The conflict between the decision below and both
the CAA text and the prior decisions of this Court provide a sufficient and compelling justification for review.2
2
The conflict created by the D.C. Circuit’s decision below is
by no means limited to this Court’s decisions but also conflicts
with earlier decisions of that court as well. For example, in American Corn Growers Ass’n v. EPA, 291 F.3d 1 (D.C. Cir. 2002), EPA
had promulgated a rule requiring the States to consider best
available retrofit technology (“BART”) factors on a group, rather
than on an individual source-by-source, basis. See 291 F.3d at 6.
The D.C. Circuit invalidated the rule, holding that it was “inconsistent with the CAA’s provisions giving the states broad authority over BART determinations.” Id. at 8. By dictating that the
States make BART determinations in a particular manner, the
EPA had impermissibly “constrain[ed] authority Congress conferred on the states.” Id. at 9.
Similarly, in Virginia v. EPA, 108 F.3d 1397 (D.C. Cir.), modified on other grounds, 116 F.3d 499 (1997), the D.C. Circuit invalidated an EPA regulation requiring certain States to adopt
particular motor vehicle emissions standards. Relying on this
Court’s decision in Train, the D.C. Circuit held that “Congress did
not give EPA authority to choose the control measures or mix of
measures states would put in their implementation plans.” Id. at
1410.
The same is true here. The CAA gives the States the first
crack at creating their Section 111(d) plans for existing sources,
and mandates that States be able to consider source-specific factors. By mandating an outcome in the CPP instead of letting the
States develop a Section 111(d) plan, EPA plainly “infringe[d] on
[the State’s] authority under the [CAA].” American Corn Growers
Ass’n, 291 F.3d at 9. The D.C. Circuit’s decision sanctioning that
result cannot be reconciled with its prior decision in American
Corn Growers and Virginia. Indeed, the D.C. Circuit decision below never mentions those opinions, let alone attempts to reconcile
them.
28
II.
The D.C. Circuit’s Decision Conflicts with
this Court’s Major Question Doctrine and
Clear Statement Rulings.
The D.C. Circuit held below that EPA’s generation
shifting approach in the CPP did not implicate the major-question doctrine because the CPP “was aimed not
at regulating the grid, but squarely and solely at controlling air pollution.” App. 104-105. This conclusion is
wrong factually and is legally inconsistent with this
Court’s decision in UARG.
Factually, EPA admitted that its goal in the CPP
was to take a grid level approach to shift generation from
coal fired generation sources to gas and other renewable
generation sources. CPP, 80 Fed. Reg. at 64,728/3 (noting
EPA was targeting “generation shifting from higheremitting to lower-emitting EGUs as a component of the
BSER.”). Judge Walker correctly characterized the CPP
in his dissent as “one of the most consequential rules
ever proposed by an administrative agency.” App. 183.
Judge Walker noted that the CPP would have “aspired to
reduce that industry’s carbon emissions by 32 percent—
‘equal to the annual emissions from more than 166 million cars.’” Id. at 184. He noted that industry experts predicted wholesale electricity’s cost to rise by $214 billion,
with the cost to replace shuttered plants at another $64
billion. Id. at 184-185.
As noted earlier in this Petition, the effects of that
change of policy would have been drastic for North Dakota, requiring it to reduce its CO2 emission rate by
44.9%, more than all but two other states. See App. at
29
246. EPA’s own modelling confirmed that the CPP
would have required North Dakota to close or curtail
production at multiple coal fired electric generating
facilities and coal mines in the state (id. at 249-252),
the development of which resources have been deemed
by North Dakota’s legislature to be an essential government function, and public purpose, to maintain and
enhance the economic and general welfare of North
Dakota. N.D. CENT. CODE § 54-17.5-01. It is clear that
the CPP’s hard CO2 lb/MWh BSER equated to a mandated standard of performance, and left no choice to
North Dakota (or other States) of how to meet the
CPP’s BSER requirements in their Section 111(d)
plans. Instead, the “standard of performance” was already mandated by EPA in a hard CO2 lb/MWh requirement. Under the CPP States were deprived of
the longstanding and statutorily-mandated discretion
afforded by Section 111(d) of the CAA, and were not
“permit[ted]” to apply the CPP’s BSER to set standards
of performance applicable “to any particular source”
by “tak[ing] into consideration, among other factors,
the remaining useful life of the source.” 42 U.S.C.
§ 7411(d)(1).
This Court has long held that it is a “well-established principle that ‘it is incumbent upon the federal
courts to be certain of Congress’ intent before finding
that federal law overrides’ the ‘usual constitutional
balance of federal and state powers.’ ” Bond v. United
States, 572 U.S. 844, 858 (2014). The Court requires
a “clear statement” from Congress that it meant to
30
extend vague federal statutes into areas of “traditional state responsibility.” Id.
This Court has checked EPA when it “discover[ed]
in a long-extant statute an unheralded power to regulate” a significant portion of the economy. UARG, 573
U.S. at 324. In UARG, EPA reversed longstanding regulatory practice by announcing it was reworking its
PSD program and Title V programs, which were designed to and historically regulated a relatively small
number of large industrial sources, by requiring that
the program include all sources of GHGs above a certain low threshold point. Id. at 312. The EPA argued
that the “general, [CAA]-wide definition of ‘air pollutant’ includes greenhouse gases; the Act requires permits for major emitters of ‘any air pollutant’; therefore,
the Act requires permits for major emitters of greenhouse gases.” Id. at 316.
This Court rejected EPA’s attempt to drastically
alter its prior readings of the CAA, noting that EPA’s
newfound interpretation threatened to “overthrow” the
“structure and design” of the PSD and Title V programs as enacted by Congress. Id. at 321. The Court
pointed to the extremely significant implications of
EPA’s new interpretation, noting that “the number of
sources required to have [Title V] permits would jump
from fewer than 15,000 to about 6.1 million; annual
administrative costs would balloon from $62 million to
$21 billion; and collectively the newly covered sources
would face permitting costs of $147 billion.” Id. at 322.
Rejecting the EPA’s bid for more regulatory power, the
Court required that Congress must “speak clearly if it
31
wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” Id. at 323-324.
The D.C. Circuit’s opinion works the same result
here by upending how States regulate existing sources
under Section 111(d), and negates the States’ codified
right to apply the BSER to set “standards of performance” for existing sources. The D.C. Circuit stated
that the CPP “serve[d] only as the basis for EPA to
set the emission-reduction targets in its quantitative
guidelines,” and that “[t]he States retain the choice of
how to meet those guidelines through standards of performance tailored to their various sources.” App. 97.
However, the D.C. Circuit did not expound upon how
States had any flexibility to apply a hard CO2 lb/MWh
“guideline” when setting a standard of performance,
and logic would dictate that a hard emission limit is
not a guideline but rather a mandate.
Even assuming the BSER set in the CPP allowed
States some, if miniscule, flexibility in creating Section
111(d) plans, the D.C. Circuit’s opinion failed to address how the never-before-applied “generation shifting” approach of the CPP was not an “overthrow” of the
longstanding “structure and design” of Section 111(d).
UARG, 573 U.S. at 321. Instead, the D.C. Circuit dismissed such concerns by noting that “EPA’s consideration of already-in-use generation shifting as part of the
‘best system of emission reduction’ does nothing to enlarge the Agency’s regulatory domain.” App. 108-109.
The D.C. Circuit suggested that generation shifting
was already employed under Section 111(d) because
“[a]ny regulation of power plants—even the most
32
conventional, at-the-source controls—may cause a relative increase in the cost of doing business for particular plants but not others, with some generationshifting effect.” App. 105 (emphasis in original).
The D.C. Circuit’s erroneous logic cannot stand.
While any regulation of air emissions, including “atthe-source controls,” may cause regulated entities to
“shift” generation elsewhere, “at-the-source controls”
are not grid-wide generation shifting mechanisms. Instead, “at-the-source controls” are mechanisms consistent with Section 111(d)’s structure whereby the
States are mandated the ability to apply EPA’s BSER
to set their own “standards of performance” that can be
applied “to any particular source.” 42 U.S.C. § 7411.
The D.C. Circuit’s opinion vested in EPA the inverse
authority—the ability to mandate grid-level changes
through hard qualitative BSER “guidelines” that
equated to standards of performance. The D.C. Circuit’s conclusion (and the CPP) thus implicated “decisions of vast ‘economic and political significance’ ”
requiring a clear statement from Congress. UARG,
573 U.S. at 323-324. No such statement can be found
in Section 111(d).
III. The Issues Raised by this Petition are of
National Importance and Significance—As
Already Recognized by this Court.
This Court seldom grants petitions for national
stays of Agency rulemakings, and never before had
done so prior to an initial review by a federal circuit.
33
However, after five separate applications were filed
with this Court seeking to stay the CPP, including an
application by this Petitioner, State of North Dakota,
this Court granted the five stay applications without
qualification on February 9, 2016. Implicit in the
Court’s grant of the stay applications was a recognition
of both the national importance of the issues surrounding EPA’s novel expansion of its authority in the CPP,
and a likelihood that EPA had overstepped the bounds
of its authority. See Maryland v. King, 567 U.S. at 1302
(to grant a stay the Court found there was: “(1) ‘a reasonable probability’ that the Court w[ould] grant certiorari, (2) ‘a fair prospect’ that the Court w[ould] then
reverse the decision below, and (3) ‘a likelihood that
irreparable harm [will] result from the denial of a
stay.’ ”).
Now, over 5 years after the Court stayed the CPP,
the same issues raised in those original stay applications still need full and final resolution—specifically,
what are the limits of EPA’s regulatory authority
under Section 111(d)? Unless that question is addressed by the Court, EPA will seize upon the broad
and expansive license given to it by the D.C. Circuit’s
opinion.3 Then, EPA’s new regulatory acts will be challenged yet again, and this process will begin anew.
3
When this Court rejected EPA’s justification for its Mercury
Air Toxics Standards in Michigan v. EPA, 576 U.S. 743 (2015),
EPA Administrator Gina McCarthy famously boasted that because of the time it took to litigate the rule “the majority of power
plants are already in compliance or well on their way to compliance” and investments have been made before judicial review
34
Only this Court can resolve EPA’s authority to regulate existing sources under Section 111(d). Further
delay will result in additional litigation and stay applications before this Court, likely over several years. The
Court should take this opportunity to resolve EPA’s
statutory authority under Section 111(d) now, and provide the nation a final resolution.
The conflicts between the D.C. Circuit’s decision
below, the text of Section 111(d), and this Court’s rulings alone are sufficient to warrant certiorari. However, even without these conflicts, the CAA’s repeated
emphasis on cooperative federalism highlights the important and recurring nature of the question presented.
A State’s authority to set its own Section 111(d)
plan for regulating emissions from existing sources, as
the CAA text requires, is key to the cooperative federalism enshrined in the CAA, and specifically Section
111(d). Congress’ decision to reserve the authority
for creating the initial Section 111(d) plan to the
States makes sense, as it is the States—not the EPA—
that are most sensitive to particular local needs and
could occur. Janet McCabe, In Perspective: the Supreme Court’s
Mercury and Air Toxics Rule Decision, EPA CONNECT (June 30,
2015), https://blog.epa.gov/blog/2015/06/in-perspective-the-supremecourtsmercury-and-air-toxics-rule-decision/. McCarthy reported,
“we’re still going to get at the toxic pollution from these facilities”
regardless of this Court’s ruling. Timothy Cama & Lydia Wheeler,
Supreme Court overturns landmark EPA air pollution rule, THE
HILL (June 29, 2015, 10:38 AM), http://thehill.com/policy/energyenvironment/246423-supreme-courtoverturns-epa-air-pollutionrule.
35
concerns. The CAA’s mandate that States be afforded
the opportunity to consider source specific factors such
as the remaining useful life of the source highlights
the importance of local considerations. For instance,
only North Dakota is adequately positioned to take
into account the requisite BSER established by EPA
in light of the significant lignite coal generation mix
present in the State in creating a compliance plan.
EPA is not adequately positioned to balance the jobs
at risk (through the closure of both coal generators
and coal mines), increased energy costs for North Dakota’s citizens, and cleaner air potential on the ground
in North Dakota. This is exactly why Congress required that EPA allow source-specific considerations in
Section 111(d) plans, and left those considerations to
the States.
In the CPP, EPA, far removed from the realities of
the energy infrastructure in North Dakota, felt that it
could brush aside the textual constraints of Section
111(d) and instead mandate that North Dakota, like
other States, engage in a generation shifting approach
whereby they were forced to close certain coal-fired
electric generating facilities in favor of generation
sources EPA preferred. The D.C. Circuit’s decision below holding that this approach was not precluded by
the text of Section 111(d) therefore grants EPA broad
license to dictate a Section 111(d) plan to the States
and “assume control” of the States’ “developing policy
choices as to the most practicable and desirable methods of restricting total emissions to a level consistent
36
with” the limitations set out in the Act. Train, 421 U.S.
at 80.
Further, the reach of the D.C. Circuit’s decision
goes beyond just the generation sector, and could drastically affect all other existing sources. EPA has already shown its hand by identifying many other key
categories of existing sources it is targeting for future
Section 111(d) regulation including industrial oil operations; petroleum systems; oil and gas wells; iron,
cement, and petrochemical production; and many residential existing sources. Inventory of U.S. Greenhouse
Gas Emissions & Sinks: 1990-2019, at 1-17 to 1-20
(Apr. 2021) (available at https://www.epa.gov/ghgemissions/
inventory-us-greenhouse-gas-emissions-and-sinks-19902019). With the D.C. Circuit’s new license to EPA,
North Dakota’s sovereign right to create Section 111(d)
plans for all of these sources is at risk.
The D.C. Circuit’s decision also has larger and
far-reaching implications for other CAA provisions,
threatening the ability of the States to make numerous
similar kinds of discretionary decisions. For example,
the CAA authorizes the States to determine the BART
for particular sources by weighing various statutory
factors. See 42 U.S.C. § 7491(b)(2)(A); id. § 7491(g)(2).
The CAA also authorizes the States, in consultation
with the EPA, to exclude from the definition of “small
business stationary sources” under the CAA’s operating permit provisions any category of sources that “the
State determines to have sufficient technical and financial capabilities to meet the requirements of [the
CAA].” Id. § 7661f(c)(3)(B). In non-attainment areas,
37
the CAA authorizes the States to determine the lowest achievable emissions rate (“LAER”) for new and
modified major stationary sources. See id. §§ 7501(3),
7503(a)(2). Under the D.C. Circuit’s flawed reasoning,
EPA would be free to override these sorts of determinations simply by setting rigid guidelines that mandate outcomes and fail to allow for States to make
source-specific considerations. When a federal statute
is based on “a program of cooperative federalism,”
there is “nothing ‘cooperative’ about a federal program
that compels State agencies to either function as bureaucratic puppets of the Federal Government or abandon regulation of an entire field traditionally reserved
to state authority.” FERC v. Mississippi, 456 U.S. 742,
768 n.30 (1982) (O’Connor, concurring in part and dissenting in part).
Further, the principles of cooperative federalism
are not limited to the CAA, but are present in many
other federal statutes. If the D.C. Circuit’s decision is
allowed to stand, those statutes are also at risk of being undermined. For example, in New York v. United
States, this Court acknowledged the “numerous federal statutory schemes” implicating cooperative federalism. 505 U.S. 144, 167-168 (1992) (noting the
Clean Water Act “anticipates a partnership between
the States and the Federal Government, animated by
a shared objective,” 33 U.S.C. §§ 1251 et seq., the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et
seq., the Resource Conservation and Recovery Act,
42 U.S.C. §§ 6901 et seq., and the Alaska National
38
Interest Lands Conservation Act, 16 U.S.C. §§ 3101 et
seq.).
Those statutes all create cooperative federalism
expectations, whereby the federal government sets
standards and the States—if they opt to undertake
the responsibility—are given the first go at implementing the standards by taking into account local
considerations. Such programs “offer States the
choice of regulating activity according to federal
standards,” consistent with cooperative federalism
principles whereby “state governments remain responsive to the local electorate’s preferences; state officials
remain accountable to the people.” New York v. United
States, 505 U.S. at 167-168. The D.C. Circuit’s decision instead strips the States’ statutory authority to
create Section 111(d) plans and wrongly gifts that
authority to the EPA, and thus threatens to undermine the balance of federal-state power struck by Congress in the CAA. This Court should not allow a
decision with such wide-reaching implications to stand
unreviewed.
---------------------------------♦---------------------------------
39
CONCLUSION
For the foregoing reasons, North Dakota’s petition
for a writ of certiorari should be granted, and the judgment below reversed.
Respectfully submitted,
WAYNE STENEHJEM
Attorney General
STATE OF NORTH DAKOTA
PAUL M. SEBY*
Special Assistant
Attorney General
MATTHEW SAGSVEEN
Solicitor General
MARGARET OLSON
Assistant Attorney General
NORTH DAKOTA OFFICE OF
ATTORNEY GENERAL
600 E. Boulevard Avenue
#125
Bismarck, ND 58505
Telephone: (701) 328-3640
Email: masagsve@nd.gov
maiolson@nd.gov
GREENBERG TRAURIG, LLP
1144 15th Street, Suite 3300
Denver, CO 80202
Telephone: (303) 572-6500
Facsimile: (303) 572-6540
Email: sebyp@gtlaw.com
*Counsel of Record
Counsel for Petitioner State of North Dakota
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.