Petition for Writ of Certiorari — North Dakota, Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefJun 18, 2021
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TABLE OF APPENDICES
Page
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
App. 1
APPENDIX A
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Argued October 8, 2020
Decided January 19, 2021
No. 19-1140
AMERICAN LUNG ASSOCIATION AND
AMERICAN PUBLIC HEALTH ASSOCIATION,
PETITIONERS
V.
ENVIRONMENTAL PROTECTION AGENCY AND
ANDREW WHEELER, ADMINISTRATOR,
RESPONDENTS
AEP GENERATING COMPANY, ET AL.,
INTERVENORS
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Consolidated with 19-1165, 19-1166, 19-1173,
19-1175, 19-1176, 19-1177, 19-1179, 19-1185,
19-1186, 19-1187, 19-1188
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On Petitions for Review of a Final Action
of the Environmental Protection Agency
(Filed Jan. 19, 2021)
Steven C. Wu, Deputy Solicitor General, Office of
the Attorney General for the State of New York, and
Michael J. Myers, Senior Counsel, argued the cause for
the State and Municipal petitioners and intervenor
Nevada. With them on the briefs were Letitia James,
App. 2
Attorney General, Barbara D. Underwood, Solicitor
General, Matthew W. Grieco, Assistant Solicitor General, Andrew G. Frank, Assistant Attorney General of
Counsel, Xavier Becerra, Attorney General, Office of
the Attorney General for the State of California, Robert
W. Byrne, Senior Assistant Attorney General, David A.
Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener, M. Elaine Meckenstock, Timothy E.
Sullivan, Elizabeth B. Rumsey, and Theodore A.B.
McCombs, Deputy Attorneys General, William Tong,
Attorney General, Office of the Attorney General for
the State of Connecticut, Matthew I. Levine and Scott
N. Koschwitz, Assistant Attorneys General, Kathleen
Jennings, Attorney General, Office of the Attorney
General for the State of Delaware, Valerie S. Edge,
Deputy Attorney General, Philip J. Weiser, Attorney
General, Office of the Attorney General for the State
of Colorado, Eric R. Olson, Solicitor General, Robyn L.
Wille, Senior Assistant Attorney General, Clare E.
Connors, Attorney General, Office of the Attorney General for the State of Hawaii, William F. Cooper, Deputy
Attorney General, Kwame Raoul, Attorney General,
Office of the Attorney General for the State of Illinois,
Matthew J. Dunn and Daniel I. Rottenberg, Assistant
Attorneys General, Aaron M. Frey, Attorney General,
Office of the Attorney General for the State of Maine,
Laura E. Jensen, Assistant Attorney General, Brian E.
Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr.,
Joshua M. Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney
General, Office of the Attorney General for the
App. 3
Commonwealth of Massachusetts, Melissa A. Hoffer
and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog and David S. Frankel, Special
Assistant Attorneys General, Dana Nessel, Attorney
General, Office of the Attorney General for the State of
Michigan, Gillian E. Wener, Assistant Attorney General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Peter N.
Surdo, Special Assistant Attorney General, Aaron D.
Ford, Attorney General, Office of the Attorney General
for the State of Nevada, Heidi Parry Stern, Solicitor
General, Gurbir S. Grewal, Attorney General, Office of
the Attorney General for the State of New Jersey, Lisa
J. Morelli, Deputy Attorney General, Hector Balderas,
Attorney General, Office of the Attorney General for
the State of New Mexico, Tania Maestas, Chief Deputy
Attorney General, Joshua H. Stein, Attorney General,
Office of the Attorney General for the State of North
Carolina, Asher Spiller, Assistant Attorney General,
Ellen F. Rosenblum, Attorney General, Office of the
Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick, Special Assistant Attorney General, Josh Shapiro, Attorney
General, Office of the Attorney General for the Commonwealth of Pennsylvania, Ann R. Johnston, Senior
Deputy Attorney General, Aimee D. Thomson, Deputy
Attorney General, Peter F. Neronha, Attorney General,
Office of the Attorney General for the State of Rhode
Island, Gregory S. Schultz, Special Assistant Attorney
General, Thomas J. Donovan, Jr., Attorney General,
Office of the Attorney General for the State of Vermont,
Nicholas F. Persampieri, Assistant Attorney General,
App. 4
Mark Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia,
Donald D. Anderson, Deputy Attorney General, Paul
Kugelman, Jr., Senior Assistant Attorney General and
Chief, Environmental Section, Caitlin Colleen Graham
O’Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General
for the State of Washington, Christopher H. Reitz and
Emily C. Nelson, Assistant Attorneys General, Joshua
L. Kaul, Attorney General, Office of the Attorney General for the State of Wisconsin, Gabe Johnson-Karp,
Assistant Attorney General, Karl A. Racine, Attorney
General, Office of the Attorney General for the District
of Columbia, Loren L. AliKhan, Solicitor General, Tom
Carr, City Attorney, Office of the City Attorney for the
City of Boulder, Debra S. Kalish, Senior Counsel, Mark
A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of Chicago, Benna Ruth
Solomon, Deputy Corporation Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel,
Kristin M. Bronson, City Attorney, Office of the City Attorney for the City and County of Denver, Lindsay S.
Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney, Office of the
City Attorney for the City of Los Angeles, Michael J.
Bostrom, Assistant City Attorney, James E. Johnson,
Corporation Counsel, New York City Law Department,
Christopher G. King, Senior Counsel, Marcel S. Pratt,
City Solicitor, City of Philadelphia Law Department,
Scott J. Schwarz and Patrick K O’Neill, Divisional Deputy City Solicitors, and Thomas F. Pepe, City Attorney,
City of South Miami. Morgan A. Costello and Brian M.
App. 5
Lusignan, Assistant Attorneys General, Office of the
Attorney General for the State of New York, Gavin G.
McCabe, Deputy Attorney General, Anne Minard, Special Assistant Attorney General, Office of the Attorney
General for the State of New Mexico, Cynthia M. Weisz,
Assistant Attorney General, Office of the Attorney
General for the State of Maryland, entered appearances.
Kevin Poloncarz argued the cause for Power Company Petitioners. With him on the briefs were Donald
L. Ristow and Jake Levine.
Mark W. DeLaquil argued the cause for Coal Industry Petitioners. With him on the briefs were Shay
Dvoretzky, Charles T. Wehland, Jeffery D. Ubersax,
Robert D. Cheren, and Andrew Grossman.
Theodore Hadzi-Antich argued the cause for Robinson Enterprises Petitioners. With him on the briefs
were Robert Henneke and Ryan D. Walters.
Sean H. Donahue argued the causes for Public
Health and Environmental Petitioners. On the briefs
were Ann Brewster Weeks, James P. Duffy, Susannah
L. Weaver, Joanne Spalding, Andres Restrepo, Vera
Pardee, Clare Lakewood, Howard M. Crystal, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David
Doniger, Benjamin Longstreth, Melissa J. Lynch, Lucas
May, Vickie L. Patton, Tomas Carbonell, Benjamin Levitan, Howard Learner, and Scott Strand. Alejandra
Nunez entered an appearance.
App. 6
David M. Williamson argued the cause and filed
the briefs for Biogenic Petitioners.
Gene Grace, Jeff Dennis, and Rick Umoffwere on
the brief for petitioners American Wind Energy Association, et al.
Theodore E. Lamm and Sean B. Hecht were on the
brief for amicus curiae Thomas C. Jorling in support of
petitioners.
Gabriel Pacyniak, Brent Chapman, and Graciela
Esquivel were on the brief for amici curiae the Coalition to Protect America’s National Parks and the National Parks Conservation Association in support of
petitioners.
Deborah A. Sivas and Matthew J. Sanders were on
the brief for amici curiae Administrative Law Professors in support of petitioners.
Hope M. Babcock was on the brief for amici curiae
the American Thoracic Society, et al. in support of petitioners.
Richard L. Revesz and Jack Lienke were on the
brief for amicus curiae the Institute for Policy Integrity
at New York University School of Law in support of
petitioners.
Steph Tai was on the brief for amici curiae Climate
Scientists in support of petitioners.
Michael Burger and Collyn Peddie were on the
brief for amici curiae the National League of Cities, et
al. in support of petitioners.
App. 7
Keri R. Steffes was on the brief for amici curiae
Faith Organizations in support of petitioners.
Shaun A. Goho was on the brief for amici curiae
Maximilian Auffhammer, et al. in support of petitioners.
Ethan G. Shenkman and Stephen K Wirth were on
the brief for amici curiae Patagonia Works and Columbia Sportswear Company in support of petitioners.
Mark Norman Templeton, Robert Adam Weinstock,
Alexander Valdes, and Benjamin Nickerson were on
the brief for amicus curiae Professor Michael Greenstone in support of petitioners.
Nicole G. Berner and Renee M. Gerni were on the
brief for amicus curiae the Service Employees International Union in support of petitioners.
Elizabeth B. Wydra, and Brianne J. Gorod were on
the brief for amici curiae Members of Congress in support of petitioners.
Jonas J. Monast was on the brief for amici curiae
Energy Modelers in support of petitioners.
Katherine Konschnik was on the brief for amici curiae Former Commissioners of the Federal Energy Regulatory Commission in support of petitioners.
Michael Landis, Elizabeth S. Merritt, and Wyatt G.
Sassman were on the brief for amici curiae Environment America and National Trust for Historic Preservation in support of petitioners.
App. 8
Cara A. Horowitz was on the brief for amici curiae
Grid Experts in support of petitioners.
Eric Alan Isaacson was on the brief for amici curiae U.S. Senators in support of petitioners.
Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, U.S. Department of Justice, and
Meghan E. Greenfield and Benjamin Carlisle, Attorneys, argued the causes for respondents. With them on
the brief was Jeffrey Bossert Clark, Assistant Attorney
General.
Lindsay S. See, Solicitor General, Office of the Attorney General for the State of West Virginia, argued
the cause for State and Industry intervenors in support of respondents regarding Affordable Clean Energy
Rule. With her on the brief were Patrick Morrisey,
Attorney General, Thomas T. Lampman, Assistant
Solicitors General, Thomas A. Lorenzen, Elizabeth B.
Dawson, Rae Cronmiller, Kevin G. Clarkson, Attorney
General at the time the brief was filed, Office of the
Attorney General for the State of Alaska, Clyde Sniffen
Jr., Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of
Arkansas, Nicholas J. Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, Dylan L.
Jacobs, Assistant Solicitor General, Steve Marshall,
Attorney General, Office of the Attorney General for
the State of Alabama, Edmund G. LaCour, Jr., Solicitor
General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia,
Andrew A. Pinson, Solicitor General, Derek Schmidt,
App. 9
Attorney General, Office of the Attorney General for
the State of Kansas, Jeffrey A. Chanay, Chief Deputy
Attorney General, Curtis T. Hill, Jr., Attorney General,
Office of the Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Andrew Beshear, Governor,
Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel,
Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive
Director, Jeff Landry, Attorney General, Office of the
Attorney General for the State of Louisiana, Elizabeth
B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of
Missouri, D. John Sauer, Solicitor General, Julie Marie
Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of
the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne
Stenehjem, Attorney General, Office of the Attorney
General for the State of North Dakota, Paul M. Seby,
Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General
for the State of Nebraska, Justin D. Lavene, Assistant
Attorney General, Dave Yost, Attorney General, Office
of the Attorney General of the State of Ohio, Benjamin
M. Flowers, Solicitor General, Cameron F. Simmons,
Principal Assistant Attorney General, Mike Hunter,
Attorney General, Office of the Attorney General for
the State of Oklahoma, Mithun Mansinghani, Solicitor General, Jason R. Ravnsborg, Attorney General,
Office of the Attorney General for the State of South
App. 10
Dakota, Steven R. Blair, Assistant Attorney General,
Alan Wilson, Attorney General, Office of the Attorney
General for the State of South Carolina, James Emory
Smith, Jr., Deputy Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General for the
State of Texas, Kyle D. Hawkins, Solicitor General,
Sean Reyes, Attorney General, Office of the Attorney
General for the State of Utah, Tyler R. Green, Solicitor
General, Bridget Hill, Attorney General, Office of the
Attorney General for the State of Wyoming, James
Kaste, Deputy Attorney General, Todd E. Palmer, William D. Booth, Obianuju Okasi, Carroll W. McGuffey,
III, Misha Tseytlin, C. Grady Moore, III, Julia Barber,
F. William Brownell, Elbert Lin, Allison D. Wood, Scott
A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven
P. Lehotsky, Michael B. Schon, Emily Church Schilling,
Kristina R. Van Bockern, David M. Flannery, Kathy G.
Beckett, Edward L. Kropp, Amy M. Smith, Janet J.
Henry, Melissa Horne, Angela Jean Levin, Eugene M.
Trisko, John A. Rego, Reed W. Sirak, Michael A. Zody,
Jacob Santini, Robert D. Cheren, Mark W. DeLaquil,
and Andrew M. Grossman. C. Frederick Beckner, III,
James R. Bedell, Margaret C. Campbell, Erik D. Lange,
and John D. Lazzaretti entered an appearance.
James P. Duffy, argued the cause for Public Health
and Environmental Intervenors in support of respondents. With him on the brief were Ann Brewster
Weeks, Sean H. Donahue, Susannah L. Weaver, Joanne
Spalding, Andres Restrepo, Vera Pardee, Clare Lakewood, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David Doniger, Benjamin Longstreth, Melissa J.
App. 11
Lynch, Lucas May, Vickie L. Patton, Tomas Carbonell,
Benjamin Levitan, Howard Learner, and Scott Strand.
Letitia James, Attorney General, Office of the Attorney General for the State of New York, Michael J.
Myers, Senior Counsel, Brian Lusignan, Assistant Attorney General of Counsel, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General,
Matthew W. Grieco, Assistant Solicitor General, Xavier
Becerra, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior
Assistant Attorney General, David A. Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener,
M. Elaine Meckenstock, Timothy E. Sullivan, Elizabeth
B. Rumsey, and Theodore A.B. McCombs, Deputy Attorneys General, William Tong, Attorney General,
Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz,
Assistant Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the
State of Delaware, Valerie S. Edge, Deputy Attorney
General, Philip J. Weiser, Attorney General, Office of
the Attorney General for the State of Colorado, Eric R.
Olson, Solicitor General, Robyn L. Wille, Senior Assistant Attorney General, Clare E. Connors, Attorney
General, Office of the Attorney General for the State
of Hawaii, William F. Cooper, Deputy Attorney General, Kwame Raoul, Attorney General, Office of the
Attorney General for the State of Illinois, Matthew J.
Dunn and Daniel I. Rottenberg, Assistant Attorneys
General, Aaron M. Frey, Attorney General, Office of
the Attorney General for the State of Maine, Laura E.
App. 12
Jensen, Assistant Attorney General, Brian E. Frosh,
Attorney General, Office of the Attorney General for
the State of Maryland, John B. Howard, Jr., Joshua M.
Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney General, Office
of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog
and David S. Frankel, Special Assistant Attorneys
General, Dana Nessel, Attorney General, Office of the
Attorney General for the State of Michigan, Gillian
E. Wener, Assistant Attorney General, Keith Ellison,
Attorney General, Office of the Attorney General for
the State of Minnesota, Peter N. Surdo, Special Assistant Attorney General, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of
Nevada, Heidi Parry Stern, Solicitor General, Gurbir
S. Grewal, Attorney General, Office of the Attorney
General for the State of New Jersey, Lisa J. Morelli,
Deputy Attorney General, Hector Balderas, Attorney
General, Office of the Attorney General for the State
of New Mexico, Tania Maestas, Chief Deputy Attorney General, Joshua H. Stein, Attorney General,
Office of the Attorney General for the State of
North Carolina, Asher Spiller, Assistant Attorney
General, Ellen F. Rosenblum, Attorney General, Office
of the Attorney General for the State of Oregon,
Paul Garrahan, Attorney-in-Charge, Steve Novick,
Special Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the
Commonwealth of Pennsylvania, Ann R. Johnston,
Senior Deputy Attorney General, Aimee D. Thomson,
App. 13
Deputy Attorney General, Peter F. Neronha, Attorney
General, Office of the Attorney General for the State of
Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of
Vermont, Nicholas F. Persampieri, Assistant Attorney
General, Mark Herring, Attorney General, Office of the
Attorney General for the Commonwealth of Virginia,
Donald D. Anderson, Deputy Attorney General, Paul
Kugelman, Jr., Senior Assistant Attorney General and
Chief, Environmental Section, Caitlin Colleen Graham
()Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General
for the State of Washington, Christopher H. Reitz and
Emily C. Nelson, Assistant Attorneys General, Karl A.
Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Tom Carr, City Attorney, Office of the
City Attorney for the City of Boulder, Debra S. Kalish,
Senior Counsel, Mark A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of
Chicago, Benna Ruth Solomon, Deputy Corporation
Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel, Kristin M. Bronson, City Attorney,
Office of the City Attorney for the City and County of
Denver, Lindsay S. Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney,
Office of the City Attorney for the City of Los Angeles,
Michael J. Bostrom, Assistant City Attorney, James E.
Johnson, Corporation Counsel, New York City Law
Department, Christopher G. King, Senior Counsel,
Marcel S. Pratt, City Solicitor, City of Philadelphia Law
App. 14
Department, Scott J. Schwarz and Patrick K O’Neill,
Divisional Deputy City Solicitors, and Thomas F. Pepe,
City Attorney, City of South Miami were on the brief
for the State and Municipal Intervenors in support of
respondents. Jeremiah Langston, Assistant Attorney
General, Office of the Attorney General for the State of
Montana, Stephen C. Meredith, Solicitor, Office of the
Attorney General for the Commonwealth of Kentucky,
Margaret I. Olson, Assistant Attorney General, Office
of the Attorney General for the State of North Dakota,
and Erik E. Petersen, Assistant Attorney General, Office of the Attorney General for the State of Wyoming,
and Robert A. Wolf entered appearances.
Patrick Morrisey, Attorney General, Office of the
Attorney General for the State of West Virginia, Lindsay S. See, Solicitor General, Thomas T. Lampman,
Assistant Solicitor General, Scott A. Keller, Jeffrey H.
Wood, Jeremy Evan Maltz, Steven P. Lehotsky, Michael B. Schon, Thomas A. Lorenzen, Elizabeth B.
Dawson, Rae Cronmiller, Steve Marshall, Attorney
General, Office of the Attorney General for the State
of Alabama, Edmund G. LaCour, Jr., Solicitor General,
Kevin G. Clarkson, Attorney General, Office of the Attorney General for the State of Alaska at the time the
brief was filed, Clyde Sniffen, Jr., Attorney General,
Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J.
Bronni, Solicitor General, Vincent M. Wagner, Deputy
Solicitor General, Dylan L. Jacobs, Assistant Solicitor
General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia,
App. 15
Andrew A. Pinson, Solicitor General, Derek Schmidt,
Attorney General, Office of the Attorney General for
the State of Kansas, Jeffrey A. Chanay, Chief Deputy
Attorney General, Curtis T. Hill, Jr., Attorney General,
Office of the Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Andrew Beshear, Governor,
Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel,
Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive
Director, Jeff Landry, Attorney General, Office of the
Attorney General for the State of Louisiana, Elizabeth
B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of
Missouri, D. John Sauer, Solicitor General, Julie Marie
Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of
the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne
Stenehjem, Attorney General, Office of the Attorney
General for the State of North Dakota, Paul M. Seby,
Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General
for the State of Nebraska, Justin D. Lavene, Assistant
Attorney General, Dave Yost, Attorney General, Office
of the Attorney General of the State of Ohio, Benjamin
M. Flowers, Solicitor General, Cameron F. Simmons,
Principal Assistant Attorney General, Mike Hunter,
Attorney General, Office of the Attorney General for
the State of Oklahoma, Mithun Mansinghani, Solicitor
General, Jason R. Ravnsborg, Attorney General, Office
App. 16
of the Attorney General for the State of South Dakota,
Steven R. Blair, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General
for the State of South Carolina, James Emory Smith,
Jr., Deputy Solicitor General, Ken Paxton, Attorney
General, Office of the Attorney General for the State of
Texas, Kyle D. Hawkins, Solicitor General, Sean Reyes,
Attorney General, Office of the Attorney General for
the State of Utah, Tyler R. Green, Solicitor General,
Bridget Hill, Attorney General, Office of the Attorney
General for the State of Wyoming, James Kaste, Deputy Attorney General, Todd E. Palmer, William D.
Booth, Obianuju Okasi, Carroll W. McGuffey, III,
Misha Tseytlin, C. Grady Moore, III, Julia Barber, F.
William Brownell, Elbert Lin, Allison D. Wood, Emily
Church Schilling, Kristina R. Van Bockern, David M.
Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M.
Smith, Janet J. Henry, Melissa Horne, Angela Jean
Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak,
Michael A. Zody, Jacob Santini, Robert D. Cheren,
Mark W. DeLaquil, and Andrew M. Grossman were on
the brief for State and Industry Intervenors in support of respondents regarding Clean Power Plan Repeal.
Wayne Stenehjem, Attorney General, Office of the
Attorney General for the State of North Dakota, and
Paul M. Seby, Special Assistant Attorney General,
were on the brief for intervenor State of North Dakota
in support of the respondents. Jerry Stouck entered an
appearance.
App. 17
Thomas J. Ward, Megan H. Berge, and Jared R.
Wigginton were on the brief for amicus curiae National
Association of Builders in support of respondents.
Before: MILLETT, PILLARD, and WALKER, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Opinion concurring in part, concurring in the judgment in part, and dissenting in part filed by Circuit
Judge WALKER.
TABLE OF CONTENTS
I.
Background ............................................. 17
A. The Clean Air Act ................................ 17
B. Electricity and Climate Change .......... 21
1. Electricity ....................................... 21
2. Climate Change and the Federal
Government .................................... 24
C. The Clean Power Plan ......................... 29
D. The ACE Rule ...................................... 32
1. Repeal of the Clean Power Plan ......
32
2. Best System of Emission Reduction .... 33
3. Degree of Emission Limitation
Achievable....................................... 36
4. Implementing Regulations ............. 38
E. Petitions for Review ............................ 38
F. Jurisdiction and Standard of Review ....
39
App. 18
II.
Section 7411............................................. 40
A. Statutory Context ................................ 40
1. Text ................................................. 46
2. Statutory History, Structure, and
Purpose ........................................... 59
3. Compliance Measures ..................... 71
B. The Major Questions Doctrine ............ 74
1. The EPA’s Regulatory Mandate .......
75
2. Best System of Emission Reduction .... 80
C. Federalism ........................................... 92
III.
The EPA’s Authority to Regulate Carbon Dioxide Emissions Under Section
7411 ........................................................... 98
A. The Coal Petitioners’ Challenges ........ 98
1. Endangerment Finding .................. 99
2. Section 7411 and Section 7412’s
Parallel Operation ............................ 111
B. The Robinson Petitioners’ Challenges .... 132
IV.
Amendments to the Implementing
Regulations ............................................. 138
V.
Vacatur and Remand ............................. 146
VI.
Conclusion ............................................... 147
As the Supreme Court recognized nearly fourteen years ago, climate change has been called
“the most pressing environmental challenge of our
time.” Massachusetts v. EPA, 549 U.S. 497, 505 (2007)
(formatting modified). Soon thereafter, the United
States government determined that greenhouse gas
App. 19
emissions are polluting our atmosphere and causing
significant and harmful effects on the human environment. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the
Clean Air Act (2009 Endangerment Finding), 74 Fed.
Reg. 66,496, 66,497–66,499 (Dec. 15, 2009). And both
Republican and Democratic administrations have
agreed: Power plants burning fossil fuels like coal “are
far and away” the largest stationary source of greenhouse gases and, indeed, their role in greenhouse gas
emissions “dwarf[s] other categories[.]” EPA Br. 169;
see also Standards of Performance for Greenhouse Gas
Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units
(New Source Rule), 80 Fed. Reg. 64,510, 64,522 (Oct.
23, 2015) (fossil-fuel-fired power plants are “by far the
largest emitters” of greenhouse gases).
The question in this case is whether the Environmental Protection Agency (EPA) acted lawfully in
adopting the 2019 Affordable Clean Energy Rule (ACE
Rule), 84 Fed. Reg. 32,520 (July 8, 2019), as a means of
regulating power plants’ emissions of greenhouse
gases. It did not. Although the EPA has the legal authority to adopt rules regulating those emissions, the
central operative terms of the ACE Rule and the repeal
of its predecessor rule, the Clean Power Plan, 80 Fed.
Reg. 64,662 (Oct. 23, 2015), hinged on a fundamental
misconstruction of Section 7411(d) of the Clean Air
Act. In addition, the ACE Rule’s amendment of the
regulatory framework to slow the process for reduction
of emissions is arbitrary and capricious. For those
App. 20
reasons, the ACE Rule is vacated, and the record is remanded to the EPA for further proceedings consistent
with this opinion.
I.
A.
BACKGROUND
THE CLEAN AIR ACT
In 1963, Congress passed the Clean Air Act, 42
U.S.C. § 7401 et seq., “to protect and enhance the quality of the Nation’s air resources so as to promote the
public health and welfare and the productive capacity
of its population[,]” id. § 7401(b)(1). Animating the Act
was Congress’ finding that “growth in the amount and
complexity of air pollution brought about by urbanization, industrial development, and the increasing use of
motor vehicles[ ] has resulted in mounting dangers to
the public health and welfare[.]” Id. § 7401(a)(2).
Section 111 of the Clean Air Act, which was added
in 1970 and codified at 42 U.S.C. § 7411, directs the
EPA to regulate any new and existing stationary
sources of air pollutants that “cause[ ], or contribute[ ]
significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A); see id. § 7411(d), (f )
(providing that the EPA Administrator “shall” regulate
existing and new sources of air pollution). A “stationary source” is a source of air pollution that cannot
move, such as a power plant. See id. § 7411(a)(3) (defining “stationary source” as “any building, structure,
facility, or installation which emits or may emit any air
pollutant[ ]”). An example of a common non-stationary
App. 21
source of air pollution is a gas-powered motor vehicle.
See Utility Air Regulatory Group v. EPA (UARG), 573
U.S. 302, 308 (2014).
Within 90 days of the enactment of Section 7411,
the EPA Administrator was to promulgate a list of stationary source categories that “cause[ ], or contribute[ ]
significantly to, air pollution[.]” 42 U.S.C. § 7411(b)(1)(A).
In 1971, the Administrator included fossil-fuel-fired
steam-generating power plants on that list. Air Pollution Prevention and Control: List of Categories of Stationary Sources, 36 Fed. Reg. 5,931 (March 31, 1971);
see also New Source Rule, 80 Fed. Reg. at 64,52764,528. Today’s power plants fall in that same category.
ACE Rule, 84 Fed. Reg. at 32,557 n.250.
Once a stationary source category is listed, the Administrator must promulgate federal “standards of
performance” for all newly constructed sources in the
category. 42 U.S.C. § 7411(b)(1)(B). The Act defines a
“standard of performance” as
a standard for emissions of air pollutants
which reflects the degree of emission limitation achievable through the application of the
best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator determines has
been adequately demonstrated.
Id. § 7411(a)(1).
App. 22
Once such a new source regulation is promulgated,
the Administrator also must issue emission guidelines
for already-existing stationary sources within that
same source category. 42 U.S.C. § 7411(d)(1)(A)(ii);
see also American Elec. Power Co., Inc. v. Connecticut
(AEP), 564 U.S. 410, 424 (2011).
While the new source standards are promulgated
and enforced entirely by the EPA, the Clean Air Act
prescribes a process of cooperative federalism for the
regulation of existing sources. Under that structure,
the statute delineates three distinct regulatory steps
involving three sets of actors—the EPA, the States,
and regulated industry—each of which has a flexible role in choosing how to comply. See 42 U.S.C.
§ 7411(a)(1), (d). This allows each State to work with
the stationary sources within its jurisdiction to devise
a plan for meeting the federally promulgated quantitative guideline for emissions. See id. § 7411(d).
The process starts with the EPA first applying its
expertise to determine “the degree of emission limitation achievable through the application of the best system of emission reduction” that “has been adequately
demonstrated.” 42 U.S.C. § 7411(a)(1); see 40 C.F.R.
§ 60.22a. That system must “tak[e] into account the
cost of achieving such reduction and any nonair quality
health and environmental impact and energy requirements[.]” 42 U.S.C. § 7411(a)(1). Once the Administrator identifies the best system of emission reduction,
she then determines the amount of emission reduction that existing sources should be able to achieve
based on the application of that system and adopts
App. 23
corresponding emission guidelines. Id.; see also, e.g.,
ACE Rule, 84 Fed. Reg. at 32,523; Clean Power Plan,
80 Fed. Reg. at 64,719.
Each State then submits to the EPA a plan that
(i) establishes standards of performance for that
State’s existing stationary sources’ air pollutants (excepting pollutants already subject to separate federal
emissions standards), and (ii) “provides for the implementation and enforcement of such standards of performance[ ]” by the State. 42 U.S.C. § 7411(d)(1); see 40
C.F.R. § 60.23a. The standards of performance must
“reflect[ ]” the emission targets that the EPA has determined are achievable. 42 U.S.C. § 7411(a)(1). In this
context, a state standard need not adopt the best system identified by the EPA to “reflect[ ]” it. Id.; see 40
C.F.R. § 60.24a(c). Instead, the Clean Air Act affords
States significant flexibility in designing and enforcing
standards that employ other approaches so long as
they meet the emission guidelines prescribed by the
Agency.
If a State fails to submit a satisfactory plan, the
EPA may prescribe a plan for that State. 42 U.S.C.
§ 7411(d)(2)(A); see 40 C.F.R. § 60.27a(c)-(e). Similarly,
if the State submits a plan but fails to enforce it,
the EPA itself may enforce the plan’s terms. Id.
§ 7411(d)(2)(B).
The third and final set of relevant actors are the
regulated entities themselves, to which, under the Act,
the States may afford leeway in crafting compliance
App. 24
measures. See Clean Power Plan, 80 Fed. Reg. at
64,666; ACE Rule, 84 Fed. Reg. at 32,555.
The EPA has exercised its authority under Section
7411 over the years to set emission limitations for different types of air pollution from various categories of
existing sources. See 42 Fed. Reg. 12,022 (March 1,
1977) (fluorides from phosphate fertilizer plants); 42
Fed. Reg. 55,796 (Oct. 18, 1977) (acid mist from sulfuric
acid plants); 44 Fed. Reg. 29,828 (May 22, 1979) (total
reduced sulfur from haft pulp plants); 45 Fed. Reg.
26,294 (April 17, 1980) (fluorides from primary aluminum plants); 60 Fed. Reg. 65,387 (Dec. 19, 1995) (various pollutants from municipal waste combustors); 61
Fed. Reg. 9905 (March 12, 1996) (landfill gases from
municipal solid waste landfills); 70 Fed. Reg. 28,606
(May 18, 2005) (mercury from coal-fired power plants).
The Clean Air Act is a comprehensive statute that
includes a variety of regulatory programs for tackling
air pollution in addition to Section 7411. Regulated
parties may be subject to one or more programs. As
relevant here, the National Ambient Air Quality
Standards (NAAQS) provisions, 42 U.S.C. §§ 7408–
7410, govern the levels of specified air pollutants that
may be present in the atmosphere to protect air quality
and the public health and welfare. The Hazardous
Air Pollutants program, id. § 7412, directs the EPA to
establish strict emission limitations for the most dangerous air pollutants emitted from major sources. Section 7411’s cooperative federalism program for existing
sources operates as a gap-filler, requiring the EPA to
App. 25
regulate harmful emissions not controlled under those
other two programs. Id. § 7411(d)(1)(i).
B.
ELECTRICITY AND CLIMATE CHANGE
1.
Electricity
Electricity powers the world. Chances are that
you are reading this opinion on a device that consumes electricity. Yet two distinct characteristics of
electricity make its production and delivery in the
massive quantities demanded by consumers an exceptionally complex process. First, unlike most products,
electricity is a perfectly fungible commodity. Grid Experts Amicus Br. 6. A watt of electricity is a watt of
electricity, no matter who makes it, how they make it,
or where it is purchased. Second, at least as of now, this
highly demanded product cannot be effectively stored
at scale after it is created. Paul L. Joskow, Creating a
Smarter U.S. Electricity Grid, 26 J. ECON. PERSP. 29,
31–33 (2012).1 Instead, electricity must constantly be
Change in storage capacity is picking up speed. See generally Richard L. Revesz & Burcin Unel, Managing the Future of the
Electricity Grid: Energy Storage and Greenhouse Gas Emissions,
42 HARV. ENV’T L. REV. 139, 140–141 (2018) (describing ongoing
declines in cost of storage); LAZARD, LAZARD’S LEVELIZED COST OF
STORAGE ANALYSIS—VERSION 6.0 (2020) (noting “storage costs
have declined across most use cases and technologies, particularly for shorter-duration applications, in part driven by evolving
preferences in the industry”). Nevertheless, the grid’s production capacity still far exceeds its present storage capacity. Univ.
of Mich. Ctr. for Sustainable Sys., U.S. GRID ENERGY STORAGE
(Sept. 2020), http://css.umich.edu/sites/default/files/US%20Grid%
20Energy%20Storage_CSS15-17_e2020.pdf (last visited Jan. 11,
1
App. 26
produced, and is almost instantaneously consumed.
See Clean Power Plan, 80 Fed. Reg. at 64,677, 64,692;
Grid Experts Amicus Br. 8.
Those unique attributes led to the creation of the
American electrical grid.2 The grid has been called the
“supreme engineering achievement of the 20th century,” MASS. INST. OF TECH., THE FUTURE OF THE ELECTRIC GRID 1 (2011) (formatting modified), and it is an
exceptionally complex, interconnected system. “[A]ny
electricity that enters the grid immediately becomes a
part of a vast pool of energy that is constantly moving[.]” New York v. FERC, 535 U.S. 1, 7 (2002). That
means that units of electricity as delivered to the user
are identical, no matter their source. On the grid, there
is no coal-generated electricity or renewable-generated
electricity; there is just electricity. See Clean Power
Plan, 80 Fed. Reg. at 64,692; Grid Experts Amicus Br.
7–8. Also, because storing electricity for any length of
time remains technically challenging and often costly,
the components of the grid must operate as a perfectly
calibrated machine to deliver the amount of electricity
that all consumers across the United States need at
the moment they need it. Grid Experts Amicus Br. 8,
2021) (United States has 1,100 gigawatts of installed generation
capacity and just 23 gigawatts of storage capacity).
2
Technically, “grids.” There are three regional grids in the
contiguous United States: Eastern, Western, and Texas. Grid
Experts Amicus Br. 9; see also United States Dep’t of Energy,
North American Electric Reliability Corporation Interconnections,
https://www.energy.gov/oe/downloads/north-american-electricreliability-corporation-interconnections (last visited Jan. 11,
2021).
App. 27
10–11; see also 80 Fed. Reg. at 64,677. “If [someone] in
Atlanta on the Georgia [leg of the] system turns on a
light, every generator on Florida’s system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the
balance in the interconnected system[.]” Federal Power
Comm’n v. Florida Power & Light Co., 404 U.S. 453, 460
(1972) (citation omitted). “Like orchestra conductors
signaling entrances and cut-offs, grid operators use
automated systems to signal particular generators to
dispatch more or less power to the grid as needed over
the course of the day, thus ensuring that power pooled
on the grid rises and falls to meet changing demand.”
Grid Experts Amicus Br. 11.
Most generators of electricity on the American
grid create power by burning fossil fuels like coal, oil,
and natural gas. See United States Energy Information Administration (EIA), Frequently Asked Questions: What Is U.S. Electricity Generation by Energy
Source? (Nov. 2, 2020), https://www.eia.gov/tools/faqs/
faq.php?id=427&t=3 (last visited Jan. 11, 2021) (fossil
fuels represented 62.6 percent of electricity generation
in 2019). Some of those power plants take a fossil fuel
(usually coal) and burn it in a water boiler to make
steam. Other power plants take a different fossil fuel
(usually natural gas), mix it with highly compressed
air, and ignite it to release a combination of super-hot
gases. Either way, that steam or superheated mixture
is piped into giant turbines that catch the gases and
rotate at extreme speeds. Those turbines turn generators, which spin magnets within wire coils to produce
App. 28
electricity. EIA, Electricity Explained (Nov. 9, 2020),
https://www.eia.gov/energyexplained/electricity/howelectricity-is-generated.php (last visited Jan 11, 2021).
2. Climate Change and
the Federal Government
Electrical power has become virtually as indispensable to modern life as air itself. But electricity generation has come into conflict with air quality in ways
that threaten human health and well-being when
power generated by burning fossil fuels emits carbon
dioxide and other polluting greenhouse gases into the
air.
Since the late 1970s, the federal government has
focused “serious attention” on the effects of carbon dioxide pollution on the climate. Massachusetts v. EPA,
549 U.S. at 507. In 1978, Congress adopted the National Climate Program Act, Pub. L. No. 95-367, 92
Stat. 601, which directed the President to study and
devise an appropriate response to “man-induced climate processes and their implications[,]” id. § 3; see
Massachusetts v. EPA, 549 U.S. at 507–508. In response, the National Academy of Sciences’ National
Research Council reported “no reason to doubt that
climate changes will result” if “carbon dioxide continues to increase,” and “[a] wait-and-see policy may mean
waiting until it is too late.” Massachusetts v. EPA, 549
U.S. at 508 (quoting CLIMATE RESEARCH BOARD, CARBON
DIOXIDE & CLIMATE: A SCIENTIFIC ASSESSMENT, at viii
(1979)).
App. 29
In 1987, Congress passed the Global Climate Protection Act, which found that “manmade pollution[,]”
including “the release of carbon dioxide, * * * may be
producing a long-term and substantial increase in the
average temperature on Earth[.]” Pub. L. No. 100-204,
Title XI, §1102(1), 101 Stat. 1407, 1408 (codified at 15
U.S.C. § 2901 note). The Climate Protection Act directed the EPA to formulate a “coordinated national
policy on global climate change.” Id. § 1103(b), 101
Stat. at 1408; see Massachusetts v. EPA, 549 U.S. at
508.
It was not until the Supreme Court’s 2007 decision
in Massachusetts v. EPA, however, that the Court confirmed that carbon dioxide and other greenhouse gas
emissions constituted “air pollutant[s]” covered by the
Clean Air Act. See 549 U.S. at 528. The Supreme Court
explained that the Clean Air Act’s “sweeping definition
of ‘air pollutant’ includes ‘any air pollution agent or
combination of such agents, including any physical,
chemical . . . substance or matter which is emitted into
or otherwise enters the ambient air[.]’ ” Id. at 528-529
(quoting 42 U.S.C. § 7602(g)). The Act, the Supreme
Court held, “is unambiguous” in that regard. Id. at 529.
“On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent
through the repeated use of the word ‘any.’ ” Id. And
“[c]arbon dioxide” and other common greenhouse gases
are “without a doubt” chemical substances that are
“emitted into . . . the ambient air.” Id. (quoting 42
U.S.C. § 7602(g)).
App. 30
Given that statutory command, the Supreme
Court ruled that the EPA “can avoid taking further action” to regulate such pollution “only if it determines
that greenhouse gases do not contribute to climate
change” or offers some reasonable explanation for not
resolving that question. Massachusetts v. EPA, 549 U.S.
at 533.
Taking up the mantle, the EPA in 2009 found
“compelling[ ]” evidence that emissions of greenhouse
gases are polluting the atmosphere and are endangering human health and welfare by causing significant
damage to the environment. 2009 Endangerment
Finding, 74 Fed. Reg. at 66,497; see id. (“[T]he Administrator finds that greenhouse gases in the atmosphere
may reasonably be anticipated both to endanger public
health and to endanger public welfare. * * * The Administrator has determined that the body of scientific
evidence compellingly supports this finding.”); id. at
66,497–66,499. The EPA concluded that “ ‘compelling’
evidence supported the ‘attribution of observed climate
change to anthropogenic’ [that is, human-influenced]
emissions of greenhouse gases[.]” AEP, 564 U.S. at 417
(quoting 74 Fed. Reg. at 66,518). The “[c]onsequent
dangers of greenhouse gas emissions,” the EPA determined, include
increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps
and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme
weather events” that cause death and destroy
infrastructure; drought due to reductions in
App. 31
mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially
“significant disruptions” of food production.
Id. (quoting 74 Fed. Reg. at 66,524–66,535).
Not long thereafter, the Supreme Court ruled that
the significant greenhouse gas pollution caused by fossil-fuel-fired power plants is subject to regulation under Section 7411 of the Clean Air Act. AEP, 564 U.S. at
424 (holding that Section 7411 “speaks directly to
emissions of carbon dioxide from [fossil-fuel-fired]
plants[ ]”) (internal quotation marks omitted). The
Court concluded that the EPA’s expertise made it “best
suited to serve as primary regulator of greenhouse gas
emissions.” Id. at 428.
In 2015, with the 2009 carbon dioxide endangerment finding continuing in effect, the EPA reaffirmed
that greenhouse gases “endanger public health, now
and in the future.” New Source Rule, 80 Fed. Reg. at
64,518. The EPA explained that, “[b]y raising average
temperatures, climate change increases the likelihood
of heat waves, which are associated with increased
deaths and illnesses[,]” particularly among “[c]hildren, the elderly, and the poor[.]” Id. at 64,517. In addition, the EPA found that “[c]limate change impacts
touch nearly every aspect of public welfare.” Id. Among
the “multiple threats caused by human emissions
of [greenhouse gases],” the EPA pointed to climate
changes that “are expected to place large areas of the
country at serious risk of reduced water supplies,
App. 32
increased water pollution, and increased occurrence of
extreme events such as floods and droughts.” Id. The
EPA “emphasize[d] the urgency of reducing [greenhouse gas] emissions due to * * * projections that show
[greenhouse gas] concentrations climbing to ever-increasing levels in the absence of mitigation[,]” citing
independent assessments finding that, “without a reduction in emissions, CO2 concentrations by the end of
the century would increase to levels that the Earth has
not experienced for more than 30 million years.” Id. at
64,518.
The federal government’s consistent recognition
of the danger to public health and welfare caused by
climate change, and the signal contribution of greenhouse gas emissions from power plants to global warming, continues to the present. In 2018, President
Trump’s administration concluded that “Earth’s climate is now changing faster than at any point in the
history of modern civilization, primarily as a result of
human activities.” U.S. GLOBAL CHANGE RESEARCH PROGRAM, FOURTH NATIONAL CLIMATE ASSESSMENT, VOLUME
II: IMPACTS, RISKS, AND ADAPTATION IN THE UNITED
STATES (REPORT-IN-BRIEF ) 24 (2018). The administration added that “the evidence of human-caused climate
change is overwhelming and continues to strengthen,”
and “the impacts of climate change are intensifying
across the country[.]” Id. at 26 (emphasis omitted).
“Climate-related changes in weather patterns and associated changes in air, water, food, and the environment are affecting the health and well-being of
the American people, causing injuries, illnesses, and
App. 33
death.” Id. at 102. The administration’s report concluded that urgent action is needed to mitigate these
dangers because “[f ]uture risks from climate change
depend primarily on decisions made today.” Id. at 13.
In preparing the ACE Rule, the EPA expressly
acknowledged its continued adherence to the 2015 endangerment finding. 84 Fed. Reg. at 32,533 (The 2015
New Source Rule “continues to provide the requisite
predicate for applicability of [Clean Air Act] section
111(d).”); id. at 32,557 n.250; see also Emission Guidelines for Greenhouse Gas Emissions from Existing
Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions
to New Source Review Program: Proposed Rule, 83
Fed. Reg. 44,746, 44,751 (Aug. 31, 2018) (confirming that the 2015 New Source Rule “remains on the
books[ ]”); EPA Br. 217.
That endangerment finding provided the essential
factual foundation—and triggered a statutory mandate—for the EPA to regulate greenhouse gas emissions from both new and existing power plants. See
New Source Rule, 80 Fed. Reg. at 64,527, 64,52964,532; Clean Power Plan, 80 Fed. Reg. at 64,68364,690; see also 42 U.S.C. §§ 7411(b)(1)(A)–(B) (duty to
regulate new stationary sources that contribute significantly to dangerous pollution identified in endangerment finding), 7411(d)(1)(A)(ii) (duty to regulate existing stationary sources that would be regulated
under § 7411(b) if they were new stationary sources).
Recall, Section 7411(b)(1)(A) provides that the EPA
Administrator “shall” regulate any category of sources
App. 34
that, “in his judgment * * * causes, or contributes significantly to, air pollution which may reasonably be
anticipated to endanger public health or welfare.”
The EPA endangerment findings reflect such wellestablished risks.
C.
THE CLEAN POWER PLAN
In the last decade, the EPA has heavily focused its
regulation of greenhouse gases on the power sector because “power plants are far and away the largest stationary-category source of greenhouse gases[,]” and
“power plants’ contributions to CO2 pollution * * *
dwarf[ ] other categories[.]” EPA Br. 169.
In October 2015, the EPA issued greenhouse gas
emission standards for new and modified power plants.
See New Source Rule, 80 Fed. Reg. at 64,510. In so doing, the EPA found that, “[a]ll told, these fossil fuelfired [power plants] emit almost one-third of all U.S.
[greenhouse gas] emissions, and are responsible for almost three times as much as the emissions from the
next ten stationary source categories combined.” Id. at
64,531. That rule and finding remain in effect and are
not challenged in this litigation.
The EPA then turned to the regulation of existing
power plants. The EPA began, as the Clean Air Act requires, by determining the best system of emission reduction that has been adequately demonstrated for
existing fossil-fuel-fired power plants. See 42 U.S.C.
§ 7411(a)(1); Clean Power Plan, 80 Fed. Reg. at 64,718.
In identifying that system, the EPA chose to build on
App. 35
the established grid system and methods of operation
already adopted by and familiar to the power sector.
See 80 Fed. Reg. at 64,725, 64,727–64,728. The regulations and standards that the EPA formulated came to
be known as the Clean Power Plan. Id. at 64,663.
In the Clean Power Plan, the EPA determined that
a combination of three existing methods of emission reduction—which the Plan referred to as building blocks,
80 Fed. Reg. at 64,667—formed the “best system of
emission reduction,” 42 U.S.C. § 7411(a)(1).
First, the system incorporated heat-rate improvements—that is, technological measures that improve
efficiency at coal-fired steam power plants and, in that
way, reduce the amount of coal that must be burned to
produce each watt of electricity to the grid. 80 Fed. Reg.
at 64,667.
Second, the system added the “substitut[ion of ]
increased generation from lower-emitting existing natural gas combined cycle units for generation from
higher-emitting affected steam generating” power
plants, which are mostly coal-fired. 80 Fed. Reg. at
64,667.
Third, the system prioritized the use of electricity generated from zero-emitting renewable-energy
sources over electricity from the heavily greenhousegas-polluting fossil-fuel-fired power plants. 80 Fed.
Reg. at 64,667.
Those second and third methods of emission
control are often referred to as “generation shifting”
App. 36
because the reductions occur when the source of power
generation shifts from higher-emission power plants to
less-polluting sources of energy. See Clean Power Plan,
80 Fed. Reg. at 64,728–64,729. As the EPA observed,
such shifts in generation already occur all the time as
a matter of grid mechanics That is, within the grid’s
“Constrained Least-Cost Dispatch” system, production
from “generators with the lowest variable costs” will be
dispatched “first, as system operational limits allow,
until all demand is satisfied.” Grid Experts Amicus Br.
12. “[R]enewable energy generators typically receive
dispatch priority because they have lower variable
costs than fossil-fuel-fired generators, which must purchase fuel.” Id. at 13 (citing 80 Fed. Reg. at 64,693). The
EPA found that most electricity is generated by diversified utilities that could achieve most or all of the shift
to lower- or no-emission generation by reassessing the
dispatch priority of their own assets. See 80 Fed. Reg.
at 64,796, 64,804.
As required by Section 7411(a)(1), the EPA then
quantified the degree of emission reduction achievable
under that three-tier best system for the relevant fossil-fuel-fired power plants and translated it into statespecific emissions goals for 2030. Clean Power Plan, 80
Fed. Reg. at 64,824–64,825. To permit additional flexibility, the Plan actually provided two alternative types
of targets: rate-based goals, reflecting the rate of emission per certain amount of generation, and mass-based
goals, reflecting the total emission from a State’s
sources. Id. at 64,820, 64,824–64,825 Tables 12, 13. The
alternative metrics were an added source of flexibility
App. 37
for States in choosing how they would meet the federal
limits.
Under the Clean Air Act, States could then propose plans that set standards of performance for their
existing power plants that would meet those emission
goals. Clean Power Plan, 80 Fed. Reg. at 64,664. In doing so, the States and their power plants were under
no obligation to use the three specific methods that the
EPA had identified in determining the best system of
emission reduction. Rather, consistent with Section
7411(d)’s cooperative federalism approach, States were
free to choose any measures, approaches, or technologies that they deemed appropriate to meet the federal
guidelines. For example, they could adopt technological
controls already in use by some power plants like carbon capture and sequestration (by which carbon dioxide is captured from the plant’s flue gas before it is
emitted and then securely stored so it cannot reach the
atmosphere) or co-firing (where fuels that release less
carbon dioxide are burned alongside fuels that release
more to reduce the amount of the latter used). See id.
at 64,883. The EPA also suggested that States might
rely on emissions-trading programs (often referred to
as cap-and-trade) and other potential compliance
strategies. Id. at 64,887.
The EPA found that its proposed approach was
“consistent with, and in some ways mirrors, the interconnected, interdependent and highly regulated nature of the utility power sector[ ]” and its grid, as well
as “the daily operation of affected [power plants]
within this framework, and the critical role of utilities
App. 38
in providing reliable, affordable electricity at all times
and in all places within this complex, regulated system.” Clean Power Plan, 80 Fed. Reg. at 64,678.
The Clean Power Plan was challenged in this
court. West Virginia v. EPA, No. 15-1363 (and consolidated cases) (D.C. Cir. Oct. 23, 2015). After we heard
argument en banc, but before we issued a decision, that
litigation was held in abeyance and ultimately dismissed as the EPA reassessed its position. No. 15-1363,
Docs. 1673071, 1806952.
D.
THE ACE RULE
In 2019, the EPA issued a new rule that repealed
and replaced the Clean Power Plan: The Affordable
Clean Energy (ACE) Rule. See Repeal of the Clean
Power Plan; Emission Guidelines for Greenhouse Gas
Emissions from Existing Electric Utility Generating
Units; Revisions to Emission Guidelines Implementing
Regulations, 84 Fed. Reg. 32,520 (July 8, 2019). That
Rule is the subject of this litigation.
1.
Repeal of the Clean Power Plan
At the outset, the ACE Rule repealed the Clean
Power Plan. The EPA explained that it felt itself statutorily compelled to do so because, in its view, “the
plain meaning” of Section 7411(d) “unambiguously”
limits the best system of emission reduction to only
those measures “that can be put into operation at
a building, structure, facility, or installation.” ACE
App. 39
Rule, 84 Fed. Reg. at 32,523-32,524. Because the Clean
Power Plan’s best system was determined by using
some emission control measures that the EPA characterized as physically operating off the site of coal-fired
power plants—such as some forms of generation shifting and emissions trading—the EPA concluded that it
had no choice but to repeal the Plan. Id. The EPA emphasized “that [its] action is based on the only permissible reading of the statute and [it] would reach that
conclusion even without consideration of the major
question doctrine,” while adding that application of
that latter doctrine “confirms the unambiguously expressed intent” of Section 7411. Id. at 32,529.
2.
Best System of Emission Reduction
Considering its authority under Section 7411 to be
confined to physical changes to the power plants themselves, the EPA’s ACE Rule determined a new best system of emission reduction for coal-fired power plants
only. The EPA left unaddressed in this rulemaking (or
elsewhere) greenhouse gas emissions from other types
of fossil-fuel-fired power plants, such as those fired by
natural gas or oil. ACE Rule, 84 Fed. Reg. at 32,533.
The EPA’s proposed system relied solely on heatrate improvement technologies and practices that
could be applied at and to existing coal-fired power
plants. ACE Rule, 84 Fed. Reg. at 32,525, 32,537. The
EPA selected only seven heat-rate improvement techniques as components of its best system. Id. at
32,537. Six of those measures were new-to-the-plant
App. 40
technologies or “equipment upgrades.” Id. at 32,536–
32,537 (naming as part of the best system (1) adding
or upgrading neural networks and intelligent sootblowers; (2) upgrading boiler feed pumps; (3) replacing
or upgrading air heater and duct leakage control devices; (4) adding variable frequency drives in feed
pumps and induced-draft fans; (5) blade path upgrades; and (6) redesigning or replacing economizers).
The seventh measure was the use of “best operating
and maintenance practices” implementing heat-rate
improvement techniques. Id. at 32,537, 32,540. The
EPA limited itself to techniques that could be “applied
broadly” to the Nation’s coal-fired plants, which primarily amounted to upgrades to existing equipment.
Id. at 32,536.
The EPA explained that only five of the seven
listed techniques directly reduce the heat rate of power
plants. See ACE Rule, 84 Fed. Reg. at 32,538–32,540.
The other two techniques—replacing or upgrading the
boiler feed pump and installing variable frequency
drives—serve to reduce the amount of energy that a
power plant must use to run its own general operations. Id. at 32,538–32,539.3 So those two techniques
3
The boiler feed pump is a device that is used to pump water
into the boiler. 84 Fed. Reg. at 32,538. It consumes a “large fraction” of the power used to run the plant. Id. Because the boiler
feed pump requires so much energy, the EPA suggested that
“maintenance on these pumps should be rigorous to ensure both
reliability and high-efficiency operation.” Id. Variable frequency
drives “enable[ ] very precise and accurate speed control” of both
boiler feed pumps and “induced draft (ID) fans,” which “maintain
proper flue gas flow through downstream air pollutant control
App. 41
do not make a power plant more efficient in turning
coal into power, but instead allow power plants to dispatch more of the power they produce to the grid rather than using it internally. Id.
The EPA identified two of its other chosen techniques—blade path and economizer upgrades—as the
measures that, of all the considered technologies, were
“expected to offer some of the largest [heat-rate] improvements.” ACE Rule, 84 Fed. Reg. at 32,537 (showing table predicting highest heat-rate improvement
range in economizer redesign or replacements and
blade path upgrades).4
But the EPA then stated that it expected some
power plants would not adopt those two technologies
because their use could trigger additional regulation
that the companies would find burdensome. 84 Fed.
Reg. at 32,537 (“[B]ased on public comments * * *,
[blade path upgrades and economizer redesign or replacement] are [heat-rate improvement] technologies
that have the most potential to trigger [New Source
Review] requirements.”). In fact, the EPA did not
model those two techniques in its regulatory impact
analysis precisely because it was unlikely that they
would be adopted. J.A. 1656–1657.
equipment[.]” Id. at 32,539. This precise control would reduce the
excess use of fans and pumps, requiring less energy. See id.
4
“Blade path upgrades” consist of upgrades to the steam turbine. Economizers are heat-exchange devices that “capture waste
heat from boiler flue gas” and use that captured heat to help heat
the boiler feedwater. Id. at 32,540.
App. 42
Finally, the EPA acknowledged that the proposed
technologies could create a “rebound effect.” ACE Rule,
84 Fed. Reg. at 32,542. A rebound effect means that net
carbon dioxide emissions actually increase as a result
of the efficiency improvements made by power plants.
Id. This happens because, as the efficiency upgrades
make coal-based energy cheaper to produce, coal-fired
power plants will have an incentive to run more often,
thereby increasing their overall emissions. Id. The
EPA found that risk of increased emissions irrelevant because its best system of emission reduction “is
aimed at improving a source’s emissions rate performance at the unit-level,” rather than reducing the
overall volume of emissions by individual sources. Id.
at 32,543.
In choosing its seven proposed power-plant-based
heat-rate improvement technologies, the EPA excluded
from its best system several other suggested methods
of reducing emissions, including (1) natural gas co-firing, repowering, and refueling; (2) biomass co-firing;
and (3) carbon capture and storage technologies. ACE
Rule, 84 Fed. Reg. at 32,543–32,547. The EPA rejected
biomass co-firing primarily because “any potential net
reductions in emissions from biomass use occur outside of the regulated source,” and so do not fall within
the EPA’s reading of Section 7411(d) as confined to
emission limits imposed at and to individual plants. Id.
at 32,546. The EPA excluded natural gas co-firing and
carbon capture and storage from its own best system,
citing cost, geographical, and operational concerns. Id.
at 32,544–32,545, 32,547–32,548. The EPA provided
App. 43
that sources could choose to use natural gas co-firing
or carbon capture—but not biomass co-firing—to
meet state-established standards of performance. Id.
at 32,555.
3.
Degree of Emission Limitation Achievable
Having determined its best system of emission reduction, the EPA then purported to prescribe the “degree of emission limitation achievable,” which States
could use to create their own standards of performance. 42 U.S.C. § 7411(a)(1). What the EPA produced
as its emission guidelines was a chart that prescribed
heat-rate improvement “ranges” for each of the EPA’s
chosen heat-rate improvement technologies, organized
by power plants of differing sizes. ACE Rule, 84 Fed.
Reg. at 32,537. The ranges show how much heat-rate
improvement can be “expected” from use of each of the
identified technologies. Id.
The EPA was explicit, though, that the “potential” range of heat-rate reduction was only illustrative
and that the actual reduction for each of the EPA’s chosen technologies would be “unit-specific” and would
“depend upon a range of unit-specific factors.” ACE
Rule, 84 Fed. Reg. at 32,537–32,538. In that way, the
ACE Rule made States responsible for evaluating
“[heat-rate improvement] potential, technical feasibility, and applicability for each of the [best system
of emission reduction] candidate technologies” on a
power-plant–by–power-plant basis. Id. at 32,538. The
ACE Rule expressly left States free to establish their
App. 44
own standards of performance for their power plants
that “reflect a value of [heat-rate improvement] that
falls outside” the ranges provided in the EPA’s chart.
Id. (emphasis added). In other words, the minimums
listed in the EPA’s emission-reduction chart were only
suggestions.
The EPA explained that its non-mandatory ranges
of efficiency reduction were valid because the applicability of the heat-rate improvement techniques to different plants and the effectiveness of each power
plant’s existing technology may vary. See ACE Rule, 84
Fed. Reg. at 32,538 (stating that “not all” of the technologies would be “applicable or warranted at the level
of a particular facility due to source-specific factors
such as the site-specific operational and maintenance
history, the design and configuration, [or] the expected
operating plans”).
The EPA predicted that its ACE Rule would reduce carbon dioxide emissions by less than 1% from
baseline emission projections by 2035. J.A. 1651. That
calculation did not reflect emission increases that could
result from the rebound effect.
4.
Implementing Regulations
The ACE Rule included some new regulations under Section 7411(d). ACE Rule, 84 Fed. Reg. at 32,57532,584 (codified at 40 C.F.R. pt. 60, subpart Ba). As relevant here, the regulations significantly extend the
States’ deadlines for the development and submittal of
their plans for emission reduction from nine months to
App. 45
three years. See 40 C.F.R. § 60.23a(a)(1). Similarly, the
new regulations extend the EPA’s deadline to act on
those plans from four months to one year. 40 C.F.R.
§ 60.27a(b). The new regulations also extend the EPA’s
deadline to substitute its own plan for a noncompliant
State’s plan from six months after the submission
deadline to two years after a finding that the plan
was incomplete, disapproved, or unsubmitted. See 40
C.F.R. § 60.27a(c). Finally, the requirement that States
demonstrate compliance progress is now triggered
only where a State’s compliance schedule stretches
more than two years from when its plan was originally
due, as opposed to the one-year period in the prior regulations. See 40 C.F.R. § 60.24a(d).
E.
PETITIONS FOR REVIEW
Twelve petitions for review of the ACE Rule were
timely filed in this court and consolidated in this case.
Nos. 19-1140 (lead case), 19-1165, 19-1166, 19-1173,
19-1175, 19-1176, 19-1177, 19-1179, 19-1185, 19-1186,
19-1187, 19-1188. The petitioners fall into three
groups.
The first grouping consists of petitioners who seek
review of the ACE Rule’s conclusion that Section 7411
only permits emission reduction measures that can
be implemented at and applied to the source. Those
petitioners include (i) a coalition of State and municipal governments; (ii) power utilities; (iii) trade associations from the renewable energy industry; and (iv)
App. 46
several public health and environmental advocacy
groups.5
The second grouping is petitioners who challenge
the ACE Rule’s imposition of any emission limits as
unlawful because, in their view, (i) the EPA failed to
make a specific endangerment finding for carbon dioxide emitted from existing power plants; (ii) the EPA’s
regulation of mercury emissions from coal-fired power
plants under Section 7412 precludes the regulation of
greenhouse gas emissions under Section 7411; and (iii)
the EPA should have regulated carbon dioxide from
stationary sources, including power plants, under the
NAAQS program, 42 U.S.C. §§ 7408–7410.
The third petitioner group is the Biogenic CO2 Coalition. They object only to the ACE Rule’s determination that States may not count biomass co-firing as a
method of complying with numerical emission limits.
F.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction to review these petitions under the Clean Air Act. 42 U.S.C. § 7607(b)(1);
see also Sierra Club v. EPA, 955 F.3d 56, 61 (D.C. Cir.
2020).
We may set aside the ACE Rule if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not
in accordance with law.” 42 U.S.C. § 7607(d)(1)(C),
5
The public health and environmental advocacy groups also
challenge the third prong of the ACE Rule—the new implementing regulations—as arbitrary and capricious.
App. 47
(d)(9)(A); see also Maryland v. EPA, 958 F.3d 1185,
1196 (D.C. Cir. 2020) (“[W]e apply the same standard
of review under the Clean Air Act as we do under the
Administrative Procedure Act.”) (quoting Allied Local
& Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir.
2000)).
II.
A.
SECTION 7411
STATUTORY CONTEXT
In enacting the Clean Air Act, “Congress delegated
to EPA the decision whether and how to regulate carbon-dioxide emissions from powerplants.” American
Elec. Power Co. v. Connecticut (AEP), 564 U.S. 410, 426
(2011). As the Supreme Court has observed, 42 U.S.C.
§ 7411 “speaks directly to” and outlines the framework
for that regulation. Id. at 424 (internal quotation
marks omitted). Specifically, Section 7411 marks out a
pair of distinct regulatory tracks for stationary sources
of air pollutants. See 42 U.S.C. § 7411(a)(2), (6). The
first track applies to new sources, id. § 7411(b), and the
second to existing sources, id. § 7411(d). The statute
calls for federal-state cooperation in regulating existing sources, affording distinct roles to the federal and
state agencies in arriving at what Section 7411 calls
“standards of performance” for the emission of air pollutants. Id. § 7411(a)(1), (c), (d)(1).
The regulatory regimes for new and existing
sources differ in the process by which such standards
are established—and the roles played by the respective
regulatory actors. The Act assigns the EPA the main
App. 48
regulatory role in specifying the new-source pollution
controls: After the EPA determines that a particular
“category of sources * * * causes, or contributes significantly to, air pollution which may reasonably be
anticipated to endanger public health or welfare,”
it publishes regulations establishing standards of
performance for new sources in that category. Id.
§ 7411(b)(1).
The process for regulating existing sources—
which raise distinct concerns about sunk costs and the
health and environmental effects of older processes—
involves more actors and steps. Regulation of a given
category of existing sources is triggered by the same
EPA air-pollution determination as for new sources.
But for existing sources the Act adopts a cooperativefederalism approach that leaves the States discretion
in determining how their State and industry can best
meet quantitative emissions guidelines established by
the EPA. See AEP, 564 U.S. at 424. Under Section
7411(d), the EPA and the States thus have distinct but
complementary roles subject to different procedures
and limitations. See 42 U.S.C. § 7411(a)(1), (d)(1). This
case concerns the mechanics of that cooperative framework for existing sources and, specifically, restrictions
the Agency now claims the statute imposes on regulation of the air pollutants those sources emit.
Two provisions of Section 7411 shape the existingsource framework. Subsection (a)(1) defines a standard
of performance, by reference to the “degree of emission
limitation” that the EPA determines is “achievable,” as:
App. 49
a standard for emissions of air pollutants
which reflects the degree of emission limitation achievable through the application of the
best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator determines has
been adequately demonstrated.
42 U.S.C. § 7411(a)(1).
Subsection (d)(1), in turn, requires the Administrator to set up a system by which willing States can
submit to the EPA “a plan which [ ] establishes standards of performance for any existing source.” 42 U.S.C.
§ 7411(d)(1). Only “where [a] State fails to submit a
satisfactory plan” may the EPA step in and directly
promulgate standards of performance for existing
sources. Id. § 7411(d)(2).
Putting these two provisions together results in
what are best understood as three distinct steps involving three sets of actors, each exercising a degree of
leeway in choice of control measures. See ACE Rule, 84
Fed. Reg. at 32,533, 32,549–32,550; Clean Power Plan,
80 Fed. Reg. at 64,665–64,666.
First, under subsection (a)(1), the EPA determines
the “best system of emission reduction” that is “adequately demonstrated,” taking into consideration certain enumerated statutory criteria: cost, any nonair
quality health and environmental impacts, and energy
requirements. 42 U.S.C. § 7411(a)(1). The Agency then
App. 50
issues emission guidelines that quantify the “degree of
emission limitation achievable through the application
of the best system” it has identified. Id.; 40 C.F.R.
§ 60.22a; see AEP, 564 U.S. at 424; EPA Br. 21–22; ACE
Rule, 84 Fed. Reg. at 32,523, 32,551.
Second, under subsection (d)(1), States issue
standards of performance for existing sources that
comply with the EPA’s emission guidelines and “reflect” the achievable degree of emission limitation set
in those guidelines. AEP, 564 U.S. at 424; 42 U.S.C.
§ 7411(d)(1); 40 C.F.R. § 60.23a; see also Clean Power
Plan, 80 Fed. Reg. at 64,666. That the standards must
“reflect” the emission guidelines does not mean that
they must embody the methods EPA contemplated in
identifying the best system; rather, the States have
flexibility in determining the specifics of the standards
they issue so long as they accomplish the “degree of
emission limitation” the EPA calculated based on its
“best system.”
Third, the operators of regulated stationary
sources implement measures to ensure they will in
practice comply with the standards of performance
their state agency has established for them. See ACE
Rule, 84 Fed. Reg. at 32,555. States often grant regulated entities some discretion in how they meet those
standards. See, e.g., N.Y. COMP. CODES R. & REGS. Tit. 6
§ 201-6.4(f ) (2013) (describing the “operational flexibility” afforded to Title V facility owners in New York
State to “propose a range of operating conditions that
will allow flexibility [for a facility] to operate under
more than one operating scenario”).
App. 51
The issue before us arises at the first step—the
EPA’s determination of the best system of emission reduction. In the Clean Power Plan, the Agency determined that the best system was one that both
improved the heat rate at power plants and prioritized
generation from lower-emitting plants ahead of highemitting plants. Clean Power Plan, 80 Fed. Reg. at
64,707. The EPA then calculated specific emission reductions achievable through application of that best
system that it published as emission guidelines for
States. Id. Had the Clean Power Plan gone into effect,
States would then have submitted to the EPA plans
based on the Agency’s guidelines that established
standards of performance for sources in their jurisdictions, as provided for in subsection (d)(1). The Clean
Power Plan left States flexibility in the measures they
included in their plans, so long as they achieved a reduction in emissions at least as great as that achieved
by EPA-established quantitative guidelines. See, e.g.,
id. at 64,665, 64,756–64,757, 64,734–64,737, 64,832–
64,837. And it further allowed States, at their option,
to give leeway to sources to select alternate compliance
measures to make the requisite reductions. See id. at
64,834–64,835.
Based on what it now perceives to be an express
and unambiguous textual limitation in Section 7411
that it says the Clean Power Plan overlooked, the EPA
repealed that Plan and replaced it with the ACE Rule.
The EPA’s new reading of the statute requires the
Agency, in modeling its “best system of emission reduction,” to consider only emission-reduction measures
App. 52
that “can be applied at and to a stationary source.”
ACE Rule, 84 Fed. Reg. at 32,534; see also id. at
32,526–32,532.
We address below the EPA’s arguments regarding
how the text and structure of Section 7411 purportedly
support this limitation. That discussion is necessarily
somewhat abstract and technical. So, for starters, it is
worth bringing the matter more concretely into view.
Consider the effect the EPA’s new statutory interpretation had on its resulting Rule. First, because generation shifting is not, in the EPA’s view, a measure
that can be applied “at and to” any one individual
source, the ACE Rule limits the best system of emission reduction to heat-rate improvements alone. 84
Fed. Reg. at 32,534–32,535. Then, instead of publishing
emission guidelines quantifying emission reductions
achievable through application of the best system, the
ACE Rule identifies what the Agency has determined
are the most effective heat-rate technologies available and a potential range of heat-rate improvements
achievable through application of each of those technologies. Id. 32,535–32,537.
As under the Clean Power Plan, the ACE Rule
grants States flexibility in establishing standards of
performance for sources pursuant to the Agency’s
emission guidelines. Unlike the Clean Power Plan,
however, the ACE Rule does not require that the States
reach any specified minimum emission reduction. Instead, States must merely “evaluate the applicability
of each of the candidate technologies” to sources within
App. 53
their jurisdiction and report their conclusions back to
the Agency. ACE Rule, 84 Fed. Reg. at 32,550, 32,538–
32,561.
The Rule recites that regulated entities have
“broad discretion” in meeting state-established standards, ACE Rule, 84 Fed. Reg. at 32,555, yet at the same
time the Rule deems impermissible any compliance
measure that cannot be applied at and to the source,
id. The ACE Rule thereby disqualifies compliance by,
for example, burning biofuel, id. at 32,557–32,558,
which emits recently captured carbon dioxide, in contrast to fossil fuels’ release of carbon dioxide stored
away millions of years ago. See generally Center for Biological Diversity v. EPA, 722 F.3d 401, 405–406 (D.C.
Cir. 2013).
The question here is a relatively discrete one. We
are not called upon to decide whether the approach of
the ACE Rule is a permissible reading of the statute as
a matter of agency discretion. Instead, the sole ground
on which the EPA defends its abandonment of the
Clean Power Plan in favor of the ACE Rule is that the
text of Section 7411 is clear and unambiguous in constraining the EPA to use only improvements at and to
existing sources in its best system of emission reduction.
The EPA contends that its current interpretation
is “the only permissible interpretation of the scope of
the EPA’s authority.” ACE Rule, 84 Fed. Reg. at 32,535.
Our task is to assess whether Section 7411 in fact
compels the EPA’s new interpretation. And because
App. 54
“deference to an agency’s interpretation of a statute is
not appropriate when the agency wrongly believes that
interpretation is compelled by Congress,” Peter Pan
Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471
F.3d 1350, 1354 (D.C. Cir. 2006) (quoting PDK Labs.,
Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004) (internal
quotation marks omitted)), we may not defer to the
EPA’s reading if it is but one of several permissible interpretations of the statutory language, see Negusie v.
Holder, 555 U.S. 511, 521 (2009). That is, the “regulation must be declared invalid, even though the agency
might be able to adopt the regulation in the exercise of
its discretion, if it ‘was not based on the agency’s own
judgment but rather on the unjustified assumption
that it was Congress’ judgment that such a regulation
is desirable” or required. Prill v. NLRB, 755 F.2d 941,
948 (D.C. Cir. 1985) (quoting FCC v. RCA Commc’ns,
346 U.S. 86, 96 (1953) (formatting modified)); accord
Arizona v. Thompson, 281 F.3d 248, 259 (D.C. Cir. 2002)
(quoting Prill, 755 F.2d at 948).
For the reasons explained below, Section 7411 does
not, as the EPA claims, constrain the Agency to identifying a best system of emission reduction consisting
only of controls “that can be applied at and to a stationary source.” ACE Rule, 84 Fed. Reg. at 32,534. The EPA
here “failed to rely on its own judgment and expertise,
and instead based its decision on an erroneous view of
the law.” Prill, 755 F.2d at 956. We accordingly must
vacate and remand to the Agency “to interpret the statutory language anew.” Peter Pan Bus Lines, 471 F.3d at
1354.
App. 55
1.
Text
As just noted, Section 7411 contemplates distinct
roles for the EPA and the States in regulating existing
stationary sources. See 42 U. S.C. § 7411(a)(1) (granting authority to the EPA to designate the best system
and determine achievable degree of emissions reduction); id. § 7411(d)(1) (outlining the States’ role in
setting standards of performance for their sources).
Nevertheless, the EPA now contends that language in
Section 7411(a)(1) and (d)(1) “unambiguously limits
the [best system of emission reduction] to those systems that can be put into operation at a building, structure, facility, or installation.” ACE Rule, 84 Fed. Reg. at
32,524 (emphasis in original); see id. at 32,528; EPA Br.
70.
In the Agency’s current view, the only pollutioncontrol methods the Administrator can consider in selecting the “best system of emission reduction” within
the meaning of Section 7411(a) are add-ons or retrofits confined to the level of the individual fossil-fuelfired power plant. ACE Rule, 84 Fed. Reg. at 32,524.
That is so even though the record before the EPA
shows that generation shifting to prioritize use of the
cleanest sources of power is one of the most costeffective means of reducing emissions that plants have
already adopted and that have been demonstrated to
work, and that generation shifting is capable of achieving far more emission reduction than controls physically confined to the source. See, e.g., Clean Power Plan,
80 Fed. Reg. at 64,693, 64,728–64,729; 2 J.A. 598; Grid
Experts Amicus Br. 13–16. In other words, the EPA
App. 56
reads the statute to require the Agency to turn its back
on major elements of the systems that the power sector
is actually and successfully using to efficiently and
cost-effectively achieve the greatest emission reductions. See Grid Experts Amicus Br. 22 (observing that
the ACE Rule “imposes greater abatement costs on industry than other approaches would to achieve the
same effect”).
The Clean Power Plan could not stand, the EPA
now concludes, because its consideration of generation
shifting exceeded the Agency’s narrow authority under
Section 7411’s plain text. ACE Rule, 84 Fed. Reg. at
32,526-32,527. In promulgating the Clean Power Plan,
the EPA read “system of emission reduction” to mean
“a set of measures that work together to reduce emissions and that are implementable by the sources themselves.” Clean Power Plan, 80 Fed. Reg. at 64,762. And
it concluded that both heat-rate improvements and
generation shifting “are components of a best system
of emission reduction for the affected [electricity generating units] because they entail actions that the affected [units] may themselves undertake that have the
effect of reducing their emissions.” Id. at 64,709 (internal quotation marks omitted).
All of that is wrong, the EPA has since decided.
“[T]he Agency now recognizes that Congress’ spoke
to the precise question’ of the scope of U.S.C.
§ 7411](a)(1) and clearly precluded the unsupportable
reading of that provision asserted in the [Clean Power
Plan].” ACE Rule, 84 Fed. Reg. at 32,527. The EPA
App. 57
insists that its current reading is mandated by the
statutory text.
It is the EPA’s current position that is wrong.
Nothing in Section 7411(a)(1) itself dictates the “at and
to the source” constraint on permissible ingredients of
a “best system” that the Agency now endorses. For the
EPA to prevail, its reading must be required by the
statutory text. Peter Pan Bus Lines, 471 F.3d at 1354.
It fails for at least three reasons, any of which is alone
fatal.
First, the plain language of Section 7411(a)(1), the
root of the EPA’s authority to determine the best system, announces its own limitations. Those limitations
simply do not include the source-specific caveat that
the EPA now interposes and casts as unambiguous.
Second, there is no basis—grammatical, contextual, or otherwise—for the EPA’s assertion that the
source-specific language of subsection (d)(1) must be
read upstream into subsection (a)(1) to equate the
EPA’s “application of the best system” with the controls
States eventually will apply “at and to” an individual
source. As the EPA at times acknowledges, the two
subsections address distinct steps in the regulatory
process, one focused on the EPA’s role and the other
focused on the States’. Any question as to which limitations pertain to each regulatory actor cannot reasonably be said to have been resolved by Congress in
favor of the unambiguous meaning the EPA now advocates.
App. 58
Third, even if subsections (a)(1) and (d)(1) were
read together in the way the EPA proposes, they would
not confine the EPA to designating a best system consisting of at-the-source controls. The EPA’s entire theory hinges on the Agency’s unexplained replacement
of the preposition “for” in “standards of performance
for any existing source” with the prepositions “at” and
“to.” Yet the statutory text calls for standards of performance “for” existing sources. Emission-reduction
measures “for” sources may readily be understood to go
beyond those that apply physically “at” and “to” the individual source. Emissions trading, for example, might
be a way “for” a source to meet a standard of performance.
The shortcomings of its statutory interpretation
are more than enough to doom the Agency’s claim that
Section 7411 announces an unambiguous limit on the
best system of emission reduction. The issue is not
whether the EPA’s counterarguments to each of these
points might show its interpretation to be permissible
as an exercise of discretion. Again, the EPA has not
claimed to be exercising any such discretion here. It insists instead that the unambiguous terms of the statute tie its hands.
After reviewing what Section 7411 clearly says
about the nature and limits of the “best system of emission reduction” that Congress called on the EPA to determine, we take up each of the EPA’s arguments to
show why Section 7411 does not unambiguously support its at-the-source restriction.
App. 59
a.
Section 7411(a) Defines the Best System
The EPA acknowledges, as it must, that Section
7411(a) is the source of the EPA’s authority and responsibility to determine the best system of emission
reduction for existing sources and set corresponding
emission guidelines. See, e.g., ACE Rule, 84 Fed Reg. at
32,534. Indeed, that is the only subsection in which
the term “best system of emission reduction” appears.
But the EPA offers no reading of subsection (a)(1) itself.
Section 7411(a)(1) expresses Congress’ expectation that the EPA will study all “adequately demonstrated” means of emission reduction. And it directs
the EPA to draw on “adequately demonstrated” methods to determine the “best” system to reduce emissions.
Congress imposed no limits on the types of measures
the EPA may consider beyond three additional criteria:
cost, any nonair quality health and environmental impacts, and energy requirements. 42 U.S.C. § 7411(a)(1).
Congress largely called on the expert judgment of the
EPA to determine for a particular source category and
pollutant which already-demonstrated methods compose the “best system.”
Because it did not set out separate definitions for
either “system” or “best,” those words take their ordinary meanings. See Sandifer v. United States Steel
Corp., 571 U.S. 220, 227 (2014). Webster’s Dictionary
offers a representative definition of “system” contemporaneous with the Act’s adoption: “[A] complex unity
formed of many often diverse parts subject to a
App. 60
common plan or serving a common purpose.” System,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF
THE ENGLISH LANGUAGE UNABRIDGED 2322 (2d ed.
1968). The superlative “best” as applied to a “system of
emission reduction” plainly places a high priority on
efficiently and effectively reducing emissions. See Best,
Merriam-Webster, https://www.merriam-webster.com/
dictionary/best (last visited Jan. 11, 2021) (“excelling
all others,” “offering or producing the greatest advantage, utility, or satisfaction”).
The ordinary meanings of these terms “reflect[ ] an
intentional effort to confer the flexibility necessary” for
effective regulation appropriate to the context. Massachusetts v. EPA, 549 U.S. 497, 532 (2007). As the Supreme Court has acknowledged, “the degree of agency
discretion that is acceptable varies according to the
scope of the power congressionally conferred.” Whitman v. American Trucking Ass’n, 531 U.S. 457, 475
(2001); see Gaughf Props., L.P. v. Commissioner, 738
F.3d 415, 424–425 (D.C. Cir. 2013); Sabre, Inc. v. Department of Transp., 429 F.3d 1113, 1122, 1124–1125
(D.C. Cir. 2005). Congress in Section 7411 deliberately charged the EPA with identifying the best system of emission reduction to keep pace with escalating
threats to air quality, and, within expressed limits, empowered it to make the judgments how best to do so.
The Agency simply ignores how the statutory text
defines the “best system of emission reduction,” asserting instead that definitional language does not confer
regulatory authority. See, e.g., EPA Br. 58–59 (“[I]t is
not Section 7411(a) (‘Definitions’) that grants the
App. 61
agency authority to act.”). Section 7411(a)(1)’s designation as a definitional provision deprives it of
standalone meaning, the EPA contends. The EPA instead reads it as “subsidiary” to Section 7411(d), regarding state standards of performance for existing
sources. EPA Br. 58. But Congress does indeed use definitional provisions to confer regulatory authority. See,
e.g., Weinberger v. Bentex Pharm, Inc., 412 U.S. 645,
652-653 (1973) (holding that the statutory definition of
“new drug” confers authority upon the FDA). That is
precisely what it did in Section 7411(a)(1). See Sierra
Club v. Costle, 657 F.2d 298, 321 (D.C. Cir. 1981) (describing Section 7411(a)(1) as authorizing the EPA to
determine the best system of emission reduction and
regulate accordingly); 40 C.F.R. 60.22a.
The EPA offers no support—apart from its own
newfound version of “statutory interpretation 101,”
EPA Br. 65—for ignoring how the Act itself defines and
limits the “best system” determination. Nor does it offer any sound justification for importing language from
a different provision governing States’ “standards of
performance.” The EPA’s “at and to the source” limitation on “best system” finds no footing in the text of Section 7411(a)(1).
b. Section 7411(d)(1)
Does Not Change the Definition
Even taking the EPA’s argument on its own terms
does not work because Section 7411(d)(1)’s text and
statutory context get it no further. To support its
App. 62
narrow reading of the EPA’s authority to determine
the “best system,” the Agency focuses on the phrase
“through the application of ” in Section 7411(a)(1). That
provision defines a “standard of performance” as an
emission standard that “reflects the degree of emission
limitation achievable through the application of the
best system of emission reduction[.]” The EPA says the
“application” phrase “requires both a direct object and
an indirect object.” ACE Rule, 84 Fed. Reg. at 32,524;
accord EPA Br. 66–68. And, it continues, Congress cannot have meant to leave its indirect object undefined.
The EPA says that, grammatically speaking, someone
must apply something (the direct object) to something
else (the indirect object). EPA Br. 115–116, 118–119. It
then picks its preferred, narrow indirect object from a
different statutory subsection and casts that object as
the only statutorily permissible choice. See 84 Fed Reg.
at 32,524.
The EPA locates an indirect object in Section
7411(d). Unlike subsection (a)(1), subsection (d)—entitled “Standards of performance for existing sources”—
explicates an indirect object. 42 U.S.C. § 7411(d). Borrowing from subsection (d), then, the EPA imports into
subsection (a)(1) a limitation of the “best system of
emission reduction” to measures that can be applied
“to and at an individual existing source—i.e., any
building or facility subject to regulation.” EPA Br. 58
(emphasis added); see also ACE Rule, 84 Fed. Reg. at
32,534.
But the language to which the EPA points supplies
the indirect object only of “standards of performance”
App. 63
adopted by States pursuant to Section 7411(d)(1), not
of the EPA’s “best system of emission reduction” determined pursuant to Section 7411(a)(1). The latter
phrase does not even appear in Section 7411(d)(1). To
reach its preferred result, the Agency invokes surmise
rather than statutory text. It insists that the limitations on States’ standards of performance in Section
7411(d)(1)—the second step in the regulatory process—must be read upstream to limit the EPA’s “best
system of emission reduction” in subsection (a)(1).
Nothing in the statute so requires.
In the text, States’ standards of performance need
only “reflect” the emission guidelines (or “degree of
emission limitation achievable”) the EPA calculates
based on the “best system of emission reduction” it determines. As laid out in the statute and explained
above, those state-developed “standards of performance” follow on but are legally and functionally distinct from the “best system” that the EPA develops. The
EPA is simply wrong that the statute clearly and unambiguously requires that the unstated indirect object
of “application of the best system of emission reduction” under Section 7411(a)(1) must be the same as the
indirect object of States’ standards of performance as
stated in Section 7411(d)(1).
Neither does the grammatical rule the EPA invokes to bridge the gap between these subsections hold
up. The crux of the EPA’s textual argument is that “the
verb ‘to apply,’ requires both a direct object and an
indirect object.” ACE Rule, 84 Fed. Reg. at 32,524;
EPA Br. 66–68. The first obvious problem is that, in
App. 64
the relevant passage of Section 7411(a)(1), Congress
did not use the verb “apply,” but rather the noun “application.” The EPA acknowledges this distinction in
passing in the ACE Rule, but dismisses it without discussion, offering only that “ ‘application’ is derived
from the verb ‘to apply[.]’ ” 84 Fed. Reg. at 32,524. That
is, of course, true, as far as it goes. The phrase “application of the best system of emission reduction” is what
is called a nominalization, a “result of forming a noun
or noun phrase from a clause or a verb.” Nominalization, Merriam-Webster Dictionary https://www.merriamwebster.com/dictionary/nominalization (last visited Jan.
11, 2021). Grammar assigns direct or indirect objects
only to verbs—not nouns. No objects are needed to
grammatically complete the actual statutory phrase.
So much for the grammatical imperative.
Even if we were to take the EPA’s leap to the verb
“apply” from the noun “application” that actually appears in the statute, the Agency comes up short. The
EPA is incorrect to insist that the verb “apply” requires
an indirect object. There is nothing ungrammatical
about the sentence “In its effort to reduce emissions,
the EPA applied the best system of emission reduction.” The verb “apply,” like its nominalization, may
properly be used in a sentence with or without an explicit indirect object. See Apply, THOMAS HERBST ET AL.,
A VALENCY DICTIONARY OF ENGLISH 41–42 (Ian F. Roe
et al. eds., 2004) (listing examples of grammatically
App. 65
correct uses with and without direct and indirect objects).6
The EPA’s shift from nominalization to verb does
not, in any event, accomplish much. Either way, the
lack of an explicit indirect object in Section 7411(a)(1)
does not require that one be borrowed from Section
7411(d)(1). Equally logical indirect objects include, for
example, the entire category of stationary sources, or
the air pollutant to be limited. In any event, the best
system cannot reasonably be said to be unambiguously applicable only to the indirect object the EPA
suggests.
The EPA faults the Clean Power Plan for reading
“application of to be functionally equivalent to “implementation of,” because “implement” “does not require
an indirect object.” EPA Br. 73. But neither does “application.” So “application” textually supports adoption
of the Clean Power Plan just as well as “implementation.” Again, so much for grammar mandating the
EPA’s result.
6
Take, for instance, the following sentences: “It appears to
violate GATT regulations, but the rules for applying the regulations are vague and the Netherlands has so far escaped censure”;
“This information may not apply in Scotland, which has a different legal system.” Apply, THOMAS HERBST ET AL., A VALENCY DICTIONARY OF ENGLISH 41–42 (examples from sections D1 and D5).
Additional examples abound. See, e.g., Apply, OXFORD ENGLISH
DICTIONARY (3d ed. 2008) (def. I.9) (“Crest bought the firm[,] and,
by applying its marketing and distribution muscle, has turned it
into a $200 million category killer.”).
App. 66
The argument fails either way, but the fact is that
Congress used the nominalization “application of the
best system of emission reduction. A nominalization
enables the drafter to leave certain information unspecified—namely, who is acting and where their action is directed. See, e.g., George D. Gopen, Who Done
It? Controlling Agency in Legal Writing, Part II, 39
LITIG. 12, 12–13 (Spring 2013) (describing how nominalizations create ambiguity). Legal writers, including
Congress, employ nominalizations all the time. And
they do so with the full awareness that their use preserves flexibility.
Congress reasonably built in leeway for the EPA
to exercise technical expertise in applying Section
7411, given the variety of pollution problems that it
covers and the importance of allowing States maneuvering room under the cooperative federalism scheme.
Congress may avoid specifying subjects, objects, or
other grammatical information because a degree of
adaptability suits the statutory role and purpose. One
way Congress can denote that it has delegated to an
agency’s judgment the task of filling in the on-theground details of a statutorily defined program is
by declining to dictate grammatically optional information, see Lehrfeld v. Richardson, 132 F.3d 1463,
1465–1466 (D.C. Cir. 1998); Appalachian Power Co. v.
EPA, 135 F.3d 791, 808–810 (D.C. Cir. 1998), including
an indirect object that the rules of grammar do not require be explicitly stated, see, e.g., Peter Pan Bus Lines,
471 F.3d at 1353–1354.
App. 67
Even if an implicit indirect object can be surmised,
there is more than one plausible candidate here, and
the statute does not unambiguously dictate the object. There certainly is no rule—grammatical or otherwise—that the specific indirect object must be the one
to which the EPA now points. At the least, other contextually appropriate indirect objects of the “best system” include the source category or the emissions. The
EPA has failed to establish that the sole and unambiguous indirect object must be the individual source. The
EPA, of course, “may fill the gap[s] the Congress left,”
and any such “regulation is entitled to deference.”
Gaughf Props., 738 F.3d at 424; see also Appalachian
Power, 135 F.3d at 811–812. But in the ACE Rule and
in its briefing here, the EPA has assiduously denied the
existence of any gap at all. That was error.
c.
EPA’s Reading Itself Falls Short
The third and equally fatal flaw in the EPA’s textual analysis is its unexplained substitution of the
prepositions “at” and “to” where the text it would have
us borrow from subsection (d)(1) actually says “for” in
referencing “standards of performance for any existing
source.” See, e.g., ACE Rule, 84 Fed. Reg. at 32,534. As
we do with any words enacted by Congress, we must
give effect to the preposition it chose. Cf. Telecommunications Res. & Action Ctr. v. FCC, 801 F.2d 501, 517–
518 (D.C. Cir. 1986) (finding decisive Congress’ use of
the preposition “under” instead of “by”). The word Congress actually used—“for” the source—lacks the sitespecific connotation on which the EPA’s case depends.
App. 68
In its brief, the EPA presents the compound construction it says inexorably follows from reading text
from subsection (a)(1) together with text from subsection (d)(1), and says it is restricted to determining a
“best system of emission reduction for any building,
structure, facility, or installation.” EPA Br. 56 (formatting modified) (quoting 42 U.S.C. § 7411(a)(1), (a)(3),
(a)(6), (d)(1)). The Agency then asserts that “the natural reading” of its proffered construction is that “the
methods planned would be ‘for’ and act at the level of
the singular, individual source.” Id. at 62 (emphasis
added).
In the preamble to the ACE Rule, the EPA went
further, fully substituting the prepositions “at” and “to”
in place of the preposition “for” that actually appears
in the text the Agency says must be borrowed from subsection (d)(1). ACE Rule, 84 Fed. Reg. at 32,534. It relies on that further substitution to insist that the best
system of emission reduction designated by the EPA
must be limited to controls “that can be applied at and
to,” not “for,” “a stationary source.” Id.; see also id. at
32,524 (“at”); id. at 32,532, 32,534, 32,556 (“at and to”);
id. at 32,555, 32,529 (“to and at”); id. at 32,543 (“at or
to”); id. at 32,526 n.65 (“to or at”); EPA Br. 4, 58, 74.
But nowhere in the ACE Rule does the EPA explain
this swap of one preposition for two meaningfully more
restrictive ones. See, e.g., 84 Fed. Reg. at 32,523–
32,524, 32,534–32,535.
The EPA rewrites rather than reads the plain statutory text. Section 7411(a)(1), even if cross-referenced
to subsection (d)(1) in the way the EPA says it must be,
App. 69
calls for the Agency to determine “the degree of emission limitation achievable through the application of
the best system of emission reduction for any existing
source”—not the application of the best system “at”
and “to” such a source. And the word “for” lacks the
physical on-site connotation that is so critical to the
EPA’s reading of the statutory text. Indeed, a standard
of performance or system of emission reduction “for” a
source just means that the system is “with regard or
respect to” or “concerning” the source. See For, OXFORD
ENGLISH DICTIONARY (2d ed. 1989) (def. 26). In contrast,
“at” and “to” tend to connote direct physical proximity
or contact. See At, OXFORD ENGLISH DICTIONARY (3d ed.
2008) (def. 1.a) (“usually determining a point or object
with which a thing or attribute is practically in contact”); To, OXFORD ENGLISH DICTIONARY (3d. ed 2008)
(def. 5.a) (“Into (or in) contact with; on, against”). A best
system “for” a source thus might entail a broader array
of controls that concern but are not immediately physically proximate to the source—such as, for instance,
generation shifting.
***
In sum, the straitened vision of the EPA’s best
system that the Agency espies in Section 7411 is
simply not supported by the text, let alone plainly and
unambiguously required by it. The Act calls on the EPA
to determine the degree of emission limitation achievable through “application of the best system of emission reduction” without specifying the system’s indirect
object, and uses the preposition “for” when it calls
on the States to develop “standards of performance
App. 70
for existing sources.” 42 U.S.C. § 7411(a), (d). It simply
does not unambiguously bar a system of emission reduction that includes generation shifting.
The EPA’s position depends critically on words
that are not there. It erroneously treats a nominalization of a verb as requiring an indirect object, collapses
two separate functions and provisions of the Act in order to supply a borrowed indirect object, does so without any evidence that the borrowed indirect object was
what Congress necessarily intended, and narrowly focuses the Agency’s authority on that indirect object by
using a different preposition from the one that actually
appears in the borrowed text. Each of those interpretive moves was a misstep. Read faithfully, Section
7411(a)(1) lacks the straitjacket that the EPA imposes.
Policy priorities may change from one administration to the next, but statutory text changes only when
it is amended. The EPA’s tortured series of misreadings of Section 7411 cannot unambiguously foreclose
the authority Congress conferred. The EPA has ample
discretion in carrying out its mandate. But it may not
shirk its responsibility by imagining new limitations
that the plain language of the statute does not clearly
require.
2.
Statutory History, Structure, and Purpose
Even looking beyond the text does nothing to substantiate the EPA’s proposed reading of Section 7411.
See Kiewit Power Constructors Co. v. Secretary of Labor, 959 F.3d 381, 395 (D.C. Cir. 2020) (Henderson, J.)
App. 71
(“To discern the Congress’s intent, we generally examine the statutory text, structure, purpose and its legislative history.”) (quoting Lindeen v. SEC, 825 F.3d
646, 653 (D.C. Cir. 2016)). These other tools of statutory
interpretation underscore the flexibility of Section
7411(a)’s text, not the cabined reading the EPA proposes.
We begin by acknowledging Section 7411’s role
within the Clean Air Act. It is a catch-all, intended to
ensure that the Act achieves comprehensive pollution
control by guaranteeing that there are “no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health
or welfare.” S. REP. NO. 91-1196, at 20 (1970). In other
words, Section 7411 is intended to reach pollutants
that do not fit squarely within the ambit of the Act’s
other regulatory provisions. It authorizes regulation of
pollutants not controlled by the other programs under
the Act. The EPA does not contest that greenhouse
gases emitted by powerplants fit that description.
The Agency points to statutory structure and history for evidence that Congress restricted the “best
system of emission reduction” under Section 7411(a) to
physical controls that are applied “at and to” an existing source. But the history and structure only confirm
what the text shows: Nothing the EPA has identified
suggests that Congress in Section 7411 meant to so
constrict what might be part of a “best system of emission reduction.”
App. 72
The Congress that enacted Section 7411 was well
aware that what a “best system” might comprise is
necessarily dynamic and evolving. Congress’ main
limitation was that the “best system” selected by the
EPA must be “adequately demonstrated.” 42 U.S.C.
§ 7411(a)(1). And it stated three other key criteria—
cost, nonair quality health and environmental impact,
and energy requirements—as factors the EPA must
take into account. See id. With those parameters in
place, Congress largely left the identification of the
best system of emission reduction to the Agency’s expert scientific judgment.
Consider cues from the Clean Air Act as a whole.
In contrast to other systemic benchmarks in the Act,
Section 7411(a)(1)’s prescription of the “best system of
emission reduction” is striking for its paucity of restrictive language. References to more specific categories of emission-reduction tools appear elsewhere in
the Act. A provision governing the Nitrogen Oxides
Emissions Reduction Program, for example, directs the
Administrator to establish limits based on the “degree
of reduction achievable through the retrofit application of the best system of continuous emission reduction, taking into account available technology[.]” 42
U.S.C. § 7651f(b)(2) (emphasis added). The Act’s regional haze program is likewise specific in its call
for use of the “best available retrofit technology.” Id.
§ 7491(b)(2)(A), (g)(2). The specificity of those other
provisions highlights the comparative generality of
Section 7411(a)’s reference to the “best system of emission reduction.”
App. 73
The sole provision the EPA highlights to shore up
its at-the-source theory only further undermines it.
The EPA points to the Act’s Prevention of Significant
Deterioration (PSD) program, 42 U.S.C. § 7475, and its
requirement of controls at least as stringent as limits
set under Section 7411, see id. § 7479(3), to argue that
that “the interrelationship between the two types of
standards”—the best system of emission reduction and
the best available control technology—“is only intelligible if the standards are in pari materia.” EPA Br. 85.
But the distinct roles of the two provisions make clear
that the limits in Section 7475 have no place in Section
7411(a)(1).
To qualify for a permit under the PSD program
before a source may be built or modified, an applicant must affirm that it will apply to each source
the “best available control technology,” or BACT, to
limit its emissions. 42 U.S.C. § 7475(a)(4). The statute
defines BACT as the degree of control that the permitting agency “determines is achievable for such
[major emitting] facility through application of production processes and available methods, systems,
and techniques, including fuel cleaning, clean fuels, or
treatment or innovative fuel combustion techniques[.]”
Id. § 7479(3). The statute further provides that BACT
cannot “result in emissions of any pollutants which
will exceed the emissions allowed by any applicable
standard established pursuant to [S]ection 7411 or
7412 of this title.” Id. § 7479(3). The listed BACT options, EPA observes, are all physically applicable to the
source unit. EPA Br. 85.
App. 74
But the EPA ignores a critical detail: The BACT
requirement applies only to newly constructed or modified sources. See Alaska Dep’t of Env’t Conservation v.
EPA, 540 U.S. 461, 472 (2004) (describing 42 U.S.C.
§ 7475). Any standard established under Section 7411
and also “applicable,” per the statutory cross-reference,
to a facility regulated for prevention of significant deterioration under Section 7475 would be a standard for
new or modified sources established pursuant to Section 7411(b). The BACT requirement does not apply to
the existing sources covered by the provision at issue
here, Section 7411(d). See New York v. EPA, 413 F.3d 3,
13 (D.C. Cir. 2005). Even if Section 7475 tracks Section
7411(b), there is simply no conflict between, on one
hand, requiring new source construction to employ the
newest and best at-the-source control technologies
and, on the other, empowering the EPA to look to a
wider range of ways to reduce emissions when it regulates older, existing sources.
The anomaly of looking to Section 7475(a)(4) to
confine Section 7411 is highlighted by the fact that
BACT permits are required only in so-called “attainment” areas of the country. See 42 U.S.C. §§ 7407, 7472,
7474. We are unpersuaded that Congress buried a
limit on the EPA’s Section 7411 authority to address
pollution from existing sources throughout the Nation
by making reference to a floor for certain new facilities
in certain parts of the country.
The statutory history of the BACT requirement
further demonstrates that Congress did not intend
that it weaken Section 7411(d). Sections 7475 and 7479
App. 75
were enacted in the 1977 Clean Air Amendments, Pub.
L. No. 95-95, §§ 165, 169, 91 Stat. 685, 735-742 (Aug. 7,
1977). In the very same legislation, Congress restricted
the best system of emission reduction for new sources
to technological methods while explicitly allowing the
best system for existing sources to include non-technological methods. § 109(c)(1)(A), 91 Stat. at 700. If Congress wanted to confine Section 7411 to at-the-source
technologies, it would have done so directly rather
than hiding such a substantial limitation in an implicit
inference from a more remote statutory provision.
The Clean Air Act’s legislative history, including
the history of the 1970 enactment of Section 7411 and
the 1977 and 1990 amendments, further shows that
Congress never imposed on the “best system of emissions reduction” the constraints the EPA now advocates. Before Congress settled on the best-system
language it enacted in 1970, the Senate bill proposed
to authorize the EPA to set standards for stationary
sources “reflect[ing] the greatest degree of emission
control” achievable through “the latest available control technology, processes, operating methods, or
other alternatives.” S. 4358, 91st Cong. § 6 (1970).
The phrase “other alternatives” was understood to encompass “[t]he maximum use of available means of
preventing and controlling air pollution”—without
limitation to technological or at-the-source means. S.
REP. NO. 91-1196, at 16. The Senate believed that was
“essential” to limit emissions from both new and existing sources. Id. The House, for its part, proposed
an initial version of Section 7411 that would have
App. 76
“require[d] new sources to ‘prevent and control [their]
emissions to the fullest extent compatible with the
available technology and economic feasibility,’ ” H.R.
17255, 91st Cong. § 5 (1970), but included no provision
regarding the regulation of existing sources.
As enacted, Section 7411 simply requires that the
EPA identify as its benchmark for existing sources
the “best system of emission reduction.” 42 U.S.C.
§ 7411(a)(1). Nothing that the EPA identifies or that
we discern in the relevant history shows the enacting
Congress myopically “focused on steps that can be
taken at and by individual sources to reduce emissions.” EPA Br. 69. And of course, even if Congress at
that time was only thinking of at-the-source controls,
the EPA was well aware that environmental problems
and their solutions rapidly evolve. At the end of the
day, it is the statutory text that governs. See Bostock v.
Clayton County, 140 S. Ct. 1731, 1738 (2020).
Congress has consistently relied on the EPA’s expert judgment in identifying the “best system” for existing sources. Its action in making, and then undoing,
a limiting amendment to Section 7411’s “best system
of emission reduction” just for new and modified
sources—not existing sources—underscores the point.
First, Congress in 1977 amended the standard for
new sources to require use of “the best technological
system of continuous emission reduction,” but did not
make any parallel change to the standard for existing
sources to add those “technological” and “continuous”
limitations. Clean Air Amendments Act of 1977, Pub.
L. No. 95-95, § 109(c)(1)(A), 91 Stat. 685; see also id. at
App. 77
700 (adding Section 7411(a)(1)(C)). Then, in 1990, Congress again amended Section 7411, this time to remove those additional limitations, reverting for new
sources to the “best system of emission reduction” that
had applied all along to existing sources. Clean Air Act
Amendments of 1990, Pub. L. No. 101-549, § 403(a),
104 Stat. 2399, 2631 (1990).
The amendment and re-amendment of the newsource “best system” language emphasizes that Congress consistently avoided imposing any such technological, at-the-source limitation on the measures that
EPA might include in the “best system” for reducing emissions from existing-source categories. And it
shows that Congress had always understood the existing-source “best system” language to go beyond the
technological restrictions that it briefly imposed on the
parallel new source provision.
The ACE Rule is the first EPA rule to read the
statute as so strictly boxing in the Agency. Although
agency practice cannot directly show whether Congress had a specific intent on the matter in question, it
is notable that the regulators closest to the issue never
before saw what the EPA now insists is obvious on the
face of Section 7411.
Over the last half century, no prior Administrator
read the Act to foreclose from consideration in the “best
system” all but at-the-source means of emission control. Rather, the EPA has exercised latitude to consider
any adequately demonstrated approach to reducing
harmful pollutants from existing source categories
App. 78
that it believed met the cost, grid-reliability and other
statutory criteria. 42 U.S.C. § 7411(a)(1). Where the
characteristics of the source category and the pollutant
at issue point to emissions trading programs or production shifts from higher- to lower-emitting sources
as components of the “best system,” the EPA has in the
past consistently concluded that it had the authority
to consider them.
During the administration of President George W.
Bush, for example, the EPA adopted the Clean Air Mercury Rule, 70 Fed. Reg. 28,606 (May 18, 2005), which
included a mercury cap-and-trade program as a component of its best system of emissions reduction for existing coal-fired power plants, see id. at 28,619–28,620;
id. at 28,617 (“EPA has determined that a cap-andtrade program based on control technology available in
the relevant timeframe is the best system for reducing
[mercury] emissions from existing coal-fired Utility
Units.”).7
The EPA’s Clinton-era regulation of nitrogen oxide
emissions from municipal solid waste combustors likewise relied on Section 7411(d), together with the EPA’s
waste-management authority under Section 7429, to
7
We vacated the Mercury Rule for unlawfully delisting mercury-emitting electric utility steam generating units from the
Section 7412 Hazardous Air Pollutants list. See New Jersey v.
EPA, 517 F.3d 574, 582–584 (D.C. Cir. 2008). Because we held
those mercury sources must be listed, and because Section 7411
cannot be used to regulate air pollutants listed under Section
7412, the existing-source rule the EPA had adopted under Section
7411(d) to control those same mercury emissions from power
plants failed as well.
App. 79
authorize States to include emissions-trading programs in their State Plans. 40 C.F.R. § 60.33b(d)(2).
Under state standards of performance designed to
meet guidelines the EPA derived from its “best system,” regulated entities were permitted to average
the emission rates of multiple units within a single
plant as well as trade emission credits with other
plants. Municipal Waste Combustors Rule, 60 Fed. Reg.
65,387, 65,402 (Dec. 19, 1995).
The EPA’s efforts to distinguish those other Section 7411(d)(1) programs do not work. The EPA claims
that the Mercury Rule did not primarily rely on a capand-trade or dispatch shifting program, but rather
that the best system rested on a “combination of a capand-trade mechanism and * * * the technology needed
to achieve the chosen cap level.” EPA Br. 72 n.20 (quoting ACE Rule, 84 Fed. Reg. at 32,526). To be clear, that
sort of hybrid best system, involving both on-site and
system-wide elements, is precisely what the EPA now
insists is unprecedented and expressly barred by the
statute’s text.
Lest there be any doubt that the Mercury Rule’s
best system rested in significant part on the cap-andtrade mechanism, we note that the EPA in fact approved state implementation plans that adopted none
of the on-site controls included in the best system and
instead relied entirely on implementation of the best
system’s cap-and-trade program. See, e.g., Notice of
Intent, 32 La. Reg. 869, 870 (May 20, 2006) (proposing
an implementation plan solely reliant on cap-andtrade); Approval and Promulgation of State Plan for
App. 80
Designated Facilities and Pollutants: Louisiana, 72
Fed. Reg. 46,188, 46,188 (Aug. 17, 2007) (approving
Louisiana’s proposal on the basis that it “would meet
[Clean Air Mercury Rule] requirements by participating in the EPA administered cap-and-trade program
addressing [mercury] emissions”). Contrary to the
EPA’s assertions, e.g. EPA Br. 4, the Agency plainly has
previously embraced beyond-the-source measures of
emission reduction as authorized by the statutory text.
The EPA’s invocation of its own past practice under Section 7411 falls wide of the mark. It errs in insisting that “the more than seventy Section 7411 rules”
promulgated for “roughly forty-five years” somehow reflect a consistent adherence to the Agency’s new view.
EPA Br. 4, 88; see id. at 37–38, 88–89; ACE Rule, 84
Fed. Reg. at 32,526. Almost all of the rules to which it
refers are irrelevant to the issue at hand. They were
for new sources, subject to Section 7411(b), not existing sources under Section 7411(d). See 84 Fed. Reg. at
32,526.
Older facilities that may be capable only of outdated, more polluting methods of generation present
different regulatory challenges than new sources. As
discussed above in connection with the EPA’s reference
to BACT requirements for new-source permitting under the PSD program, a requirement that owners and
operators constructing new facilities apply state-ofthe-art, lowest-emitting equipment and methods “at
and to the source” might well be the best available
means of reducing emissions for that source category.
The same cannot be said for existing sources. A central
App. 81
error of the ACE Rule is that it fails to appreciate that
difference. It identifies a handful of measures applicable to and at the source that the EPA suggests
may achieve slight reductions. But industry practice
demonstrates that better, lower-emitting, reliable, and
cost-effective systems for reducing emissions from existing power plants typically also shift generation
away from higher-emitting, fossil-fuel-fired capacity
when renewable or lower- or zero-emitting generation
is an available substitute.
Because the best, most efficient and effective systems for controlling emissions from existing sources ordinarily differ from the best systems for new sources,
they are regulated via a distinct statutory track. Only
the Section 7411(d) rules are relevant to the EPA’s
prior understanding of its authority to regulate existing sources. Those prior EPA rules contradict the EPA’s
position here. Before its about-face in the ACE Rule, all
three of the Agency’s most recent Section 7411(d) rules
included emissions trading or generation shifting to
lower-emitting sources. See Clean Power Plan, 80 Fed.
Reg. at 64,755–64,756; Clean Air Mercury Rule, 70
Fed. Reg. at 28,606, 28,617, 28,619–28,620; Municipal
Waste Combustors Rule, 60 Fed. Reg. 65,387, 65,402
(Dec. 19, 1995).
To put the EPA’s mistaken reading of Section 7411
in perspective, consider how it effectively relegates federal regulators back to the sidelines where they stood
before Congress overhauled the Clean Air Act in 1970.
The federal government had until then done little
more than provide information and guidance to cheer
App. 82
on States’ air-quality regulators. See Train v. NRDC,
421 U.S. 60, 64 (1975) (noting that the States’ response
to earlier iterations of the Act focused on information
and incentives had been “disappointing”).
With the 1970 amendments, a virtually unanimous Congress dramatically strengthened the federal
government’s hand in combatting air pollution. See
Train, 421 U.S. at 64 (“These Amendments sharply increased federal authority and responsibility. * * * The
difference * * * was that the States were no longer
given any choice as to whether they would meet th[eir
statutory] responsibility.”); cf. EPA v. EME Homer City
Generation, LP, 572 U.S. 489, 497 (2014) (noting this
progression toward “increasing[ly] rigor[ous]” federal
regulation of interstate air pollution). Congress did so
“to protect and enhance the quality of the Nation’s air
resources so as to promote the public health and welfare and the productive capacity of its population[.]” 42
U.S.C. § 7401(b)(1). The EPA’s newly enhanced authority was “designed to provide the basis” for “a massive
attack on air pollution.” S. REP. NO. 911196, at 1. Section 7411(d) ensured that there would be “no gaps in
control activities pertaining to stationary source emissions that pose any significant danger to public health
or welfare.” Id. at 20.
Describing the Act shortly before its passage, Republican Senator John Cooper explained that the
“philosophy of the bill abandons the old assumption
of requiring the use of only whatever technology is
already proven and at hand” and instead “set[s] out
what is to be achieved.” 116 CONG. REC. 32,919 (1970).
App. 83
To that end, the Act did not finely detail specific approaches to enumerated sources or types of air pollution. See 116 CONG. REC. 32,901–32,902 (1970)
(statement of Sen. Muskie). Congress chose instead to
entrust the EPA with flexible powers to craft effective
solutions. Only by doing so could air quality regulation
hope to reflect developing understandings of escalating
problems and bring to bear as-yet-unseen solutions.
American air quality is the proof of that approach.
The EPA has worked closely with industry, States, and
the public to develop the world’s most nimble, responsive, and effective regime of air pollution regulation.
For example, in the half-century since the 1970 Act,
“the combined emissions of * * * six key pollutants
regulated under the National Ambient Air Quality
Standards dropped by 73 percent” between 1970 and
2017. EPA Releases 2018 Power Plant Emissions
Demonstrating Continued Progress, EPA (Feb. 20, 2019),
https://www.epa.gov/newsreleases/epa-releases-2018power-plant-emissions-demonstrating-continued-progress
(last visited Jan. 11, 2021).
The EPA’s new reading of Section 7411 would atrophy the muscle that Congress deliberately built up.
The EPA asserts it lacks authority to curb a pollutant
that the Agency itself has repeatedly deemed a grave
danger to health and welfare but that eludes effective
control under other provisions of the Act. We do not
believe that Congress drafted such an enfeebled gapfilling authority in Section 7411.
***
App. 84
In sum, traditional tools of statutory interpretation reveal nothing in the text, structure, history, or
purpose of Section 7411 that compels the reading the
EPA adopted in the ACE Rule.
3.
Compliance Measures
In the ACE Rule, the EPA also limited the
measures that sources may use to comply with the
States’ standards of performance set under Section 7411(d). Recognizing that sources generally have
“broad discretion” in how they comply with state
standards, 84 Fed. Reg. at 32,555, the EPA nonetheless
categorically excluded two specific measures from the
States’ consideration: averaging and trading, and biomass co-firing. It did so on the ground that these
measures do not meet two criteria it determined were
required of compliance measures: that they be (1) “capable of being applied to and at the source” and (2)
“measurable at the source using data, emissions monitoring equipment or other methods to demonstrate
compliance[.]” Id. The EPA identified these criteria on
account of “both legal and practical concerns[.]” Id.
The Agency’s legal concern was that non-sourcespecific compliance measures “would be inconsistent
with the EPA’s interpretation of the” best system of
emission reduction as itself plant-specific. ACE Rule,
84 Fed. Reg. at 32,555–32,556. In that way, the EPA
extended to States’ compliance measures the same incorrect textual interpretation of the Clean Air Act that
underlay its determination of what best systems may
App. 85
include—namely, that the system must be one that can
be applied to and at the individual source. The EPA
reasoned that “implementation and enforcement of
such standards should correspond with the approach
used to set the standard in the first place.” Id. at
32,556.
The Agency’s practical concern was that compliance measures that are not source-specific could result
in “asymmetrical regulation[,]” meaning the stringency
of standards could vary across sources. ACE Rule,
84 Fed. Reg. at 32,556. It argues here that such regulation “could have significant localized adverse consequences” in the case of many pollutants regulated
under Section 7411(d). EPA Br. 240.
Because we hold that the EPA erred in concluding
Section 7411 unambiguously requires that the best
system of emission reduction be source specific, we necessarily reject the ACE Rule’s exclusion from Section
7411(d) of compliance measures it characterizes as
non-source-specific. The Agency tied that exclusion to
its flawed interpretation of the statute as unambiguously confined to measures taken “at” individual
plants, so it falls with that decision. ACE Rule, 84 Fed.
Reg. at 32,555–32,556.
The statute says nothing about the measures that
sources may use to comply with the standards States
establish under Section 7411(d), and the EPA cites no
separate authority that would require compliance
measures to be source-specific, or that Congress meant
to so hogtie the States in devising standards of
App. 86
performance. Regardless of any policy-based reasons
the EPA offers for limiting compliance measures, then,
its decision to exclude averaging and trading and biomass co-firing is foreclosed by its legally erroneous
starting point.
Neither can the EPA’s policy-based reasons sustain its decision to exclude its disfavored non-sourcespecific compliance measures in the context of carbon
dioxide emissions. Apart from its statutory interpretation, the EPA’s only ground for excluding those compliance measures is the Agency’s stated concern to avoid
asymmetrical regulation. ACE Rule, 84 Fed. Reg. at
32,556. It argues that asymmetrical regulation “could
have significant localized adverse consequences for
public health and the environment.” EPA Br. 240. The
Agency points to the case of fluoride—another pollutant regulated under Section 7411(d)—to note that allowing sources to meet state standards of performance
by averaging emissions across units or between facilities “could cause serious environmental impacts on local communities where pollution was under-controlled,
causing localized damage.” Id. In light of such considerations, the EPA worried that a system of averaging
and trading “would undermine the EPA’s determination” of the best system of emission reduction, leading
to the sort of localized consequences the system is designed to guard against. ACE Rule, 84 Fed. Reg. at
32,557.
But that point does not support the EPA’s categorical rule, let alone prove that the statute unambiguously compels the Agency’s reading. Unlike pollutants
App. 87
such as fluoride, carbon dioxide emissions do not pose
localized concerns at the site of emission. Whereas the
EPA might determine that the best system for reducing fluoride emissions is one that can be applied to and
at the source, and it would be reasonable for the EPA
in turn to limit compliance measures to correspond
with such a “best system,” the same cannot be said of
carbon dioxide. Indeed, the EPA recognizes that “CO2
is a global pollutant with global effects[,]” meaning
“there may be few direct and area public health consequences from asymmetrical regulation of carbon dioxide within a State.” EPA Br. 239.
The Agency defends its concern about asymmetrical regulation in the context of carbon dioxide emissions with the unsupported contention that an
interpretation of Section 7411(d) that allowed nonsource-specific compliance measures “would not be
limited to carbon dioxide alone.” EPA Br. 240. But there
is no reason to conclude, and petitioners do not argue,
that the statute requires the EPA to permit nonsource-specific compliance measures for every pollutant it regulates under Section 7411. The statute is not
so rigid as EPA supposes. In fact, Section 7411 itself
does not textually restrict the States’ choice of compliance measures for their sources at all. See also Power
Cos. Pet’rs Br. 25–26; Biogenic Pet’r Br. 16–17. Even if
the EPA might reasonably limit compliance measures
in specific situations based on its determination of the
best system for reducing particular types of emissions
with localized consequences, the statute imposes no
App. 88
requirement that such limitations be uniform across
the regulation of different pollutants.
In sum, the EPA’s conclusion on compliance by
sources rises and falls with its legally flawed interpretation of the statute. The Agency’s practical concern
about asymmetrical regulation could not, in any event,
support the exclusion of biomass co-firing or averaging
and trading in the particular context of carbon dioxide
emission regulation.
B.
THE MAJOR QUESTIONS DOCTRINE
The EPA also references the so-called “major questions” doctrine in defense of its statutory interpretation and the ACE Rule. 84 Fed. Reg. at 32,529. But that
doctrine does not confine the EPA to adopting solely
emission standards that can be implemented physically to and at the individual plant.
The Supreme Court has said in a few cases that
sometimes an agency’s exercise of regulatory authority
can be of such “extraordinary” significance that a court
should hesitate before concluding that Congress intended to house such sweeping authority in an ambiguous statutory provision. See King v. Burwell, 576 U.S.
473, 485–486 (2015); Gonzales v. Oregon, 546 U.S. 243,
262, 266–267 (2006); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); accord Utility
Air Regulatory Group v. EPA (UARG), 573 U.S. 302,
324 (2014); see also MCI Telecommc’ns v. AT&T, 512
U.S. 218, 231 (1994). Where there are special reasons
for doubt, the doctrine asks whether it is implausible
App. 89
in light of the statute and subject matter in question
that Congress authorized such unusual agency action.
See, e.g., UARG, 573 U.S. at 324 (considering whether
the challenged rule would “bring about an enormous
and transformative expansion in EPA’s regulatory authority without clear congressional authorization”);
Brown & Williamson, 529 U.S. at 161 (holding that the
FDA could not regulate tobacco because it was “plain
that Congress ha[d] not given the FDA the authority
that it s[ought] to exercise”).
In the ACE Rule, the EPA stated that, while its
interpretation of Section 7411 did not depend on the
“major question[s] doctrine[,]” the Agency believed
that “that doctrine should apply here[.]” 84 Fed. Reg.
at 32,529. The Agency reasoned that the Clean Power
Plan would have had “billions of dollars of impact on
regulated parties and the economy,” would have “affected every electricity customer[,]” was “subject to litigation involving almost every State,” and would have
upset the balance of regulatory authority between federal agencies and the States. Id. For those reasons, the
Agency concluded that the “interpretive question
raised”—whether the “best system of emission reduction” can include measures other than improvements
to and at the physical source—“must be supported by
a clear[ ]statement from Congress.” Id. That was incorrect.
App. 90
1.
The EPA’s Regulatory Mandate
Unlike cases that have triggered the major questions doctrine, each critical element of the Agency’s
regulatory authority on this very subject has long been
recognized by Congress and judicial precedent.
Most importantly, there is no question that the
regulation of greenhouse gas emissions by power
plants across the Nation falls squarely within the
EPA’s wheelhouse. The Supreme Court has ruled specifically that greenhouse gases are “air pollutants” covered by the Clean Air Act. Massachusetts v. EPA, 549
U.S. at 532. More to the point, the Court has told the
EPA directly that it is the Agency’s job to regulate
power plants’ emissions of greenhouse gases under
Section 7411. “Congress delegated to EPA the decision
whether and how to regulate carbon-dioxide emissions
from powerplants” through a “§ 7411 rulemaking[ ]”
AEP, 564 U.S. at 426–427. The separate opinion agrees.
See Separate Op. at 14 (“Does the Clean Air Act direct
the EPA to make our air cleaner? Clearly yes. Does it
require at least some carbon reduction? According to
Massachusetts v. EPA, again yes.”).
On top of that, the issuance of regulations addressing greenhouse gas pollution is mandatory under the
statute because of longstanding endangerment findings.
In Massachusetts v. EPA, the Supreme Court directed
the EPA either to make an endangerment finding under the statute for greenhouse gas pollution, or to
explain why it would not do so. 549 U.S. at 532–535.
The EPA complied. For now more than a decade—from
App. 91
2009 to the present day in the ACE Rule itself—the
EPA has consistently and repeatedly recognized the
serious danger that greenhouse gas pollution poses to
human health and welfare. See ACE Rule, 84 Fed. Reg.
at 32,533; New Source Rule, 80 Fed. Reg. at 64,530–
64,531; 2009 Endangerment Finding, 74 Fed. Reg. at
66,496–66,497. By statute, that finding triggers a mandatory duty on the EPA to regulate greenhouse gas pollution. 42 U.S.C. § 7521(a)(1) (motor vehicle emissions);
42 U.S.C. § 7411(b) (stationary sources that contribute
significantly to such dangerous pollution).8
So the EPA has not just the authority, but a statutory duty, to regulate greenhouse gas pollution, including specifically from power plants.
8
As discussed below with respect to the challenge brought
by the Coal Petitioners (infra at III.A.1), the legal basis for the
EPA’s regulation of greenhouse gas emissions from existing
power plants in both the Clean Power Plan and the ACE Rule was
the Agency’s prior 2015 decision to issue standards of performance for carbon dioxide emitted from new power plants. That
decision, in turn, was based on the Agency’s recognition (since the
1970s) that fossil-fuel-fired power plants contribute significantly
to air pollution, which “may reasonably be anticipated to endanger the public health or welfare.” 42 U.S.C. § 7411(b)(1)(A); see
Air Pollution Prevention and Control: List of Categories of Stationary Sources, 36 Fed. Reg. 5931, 5931 (March 31, 1971); Air
Pollution Prevention and Control: Addition to the List of Categories of Stationary Sources, 42 Fed. Reg. 53,657, 53,657 (Oct. 3,
1977). The EPA also determined in 2015 that power plants contribute significantly to greenhouse gas pollution in particular. See
New Source Rule, 80 Fed. Reg. at 64,531. That determination,
combined with the determination that greenhouse gases are dangerous to public health and welfare, triggers a mandatory duty to
regulate under Section 7411(b)(1)(A).
App. 92
In that way, the pollution measures in the Clean
Power Plan do not fit the major-question mold of prior
cases. For example, in Brown & Williamson, the major
question was whether the agency had authority to regulate tobacco at all. There, the Supreme Court ruled
that there was “reason to hesitate” before concluding
that the provisions of the Food, Drug, and Cosmetic Act
covering restricted devices, Brown & Williamson, 529
U.S. at 134 (citing 21 U.S.C. § 360j(e)), gave the Food
and Drug Administration the authority to regulate
tobacco given its “unique political history” and its role
as a “significant portion of the American economy.” Id.
at 159. The Court reasoned based on the overall drugregulatory scheme, as well as Congress having “created a distinct regulatory scheme for tobacco products,” that Congress “could not have intended to
delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id. at
159–160.
That question of agency authority to regulate the
matter in question was absent for the Clean Power
Plan. In fact, the Supreme Court in Massachusetts v.
EPA rejected the analogy between regulation of greenhouse gases as a pollutant under the Clean Air Act and
regulation of tobacco as a drug under the Food, Drug,
and Cosmetic Act. 549 U.S. at 530–531. Treating tobacco as a drug would have been wholly novel, requiring the agency to ban virtually all tobacco products—a
result the Court suspected Congress did not intend. Id.
at 531; Brown & Williamson, 529 U.S. at 143. By contrast, the Supreme Court explained, greenhouse gases
App. 93
are air pollutants that fall squarely within the Clean
Air Act’s coverage, and the Act would subject such pollutants, if the agency makes the necessary findings,
only to regulation, not prohibition. Massachusetts v.
EPA, 549 U.S. at 531.
The Clean Air Act also contains its own limits on
regulation, like mandating that the EPA take into account such factors as available technology and the cost
of compliance. Id. (citing 42 U.S.C. § 7521(a)(2)); see
also 42 U.S.C. § 7411(a)(1) (requiring consideration of
health and environmental impacts, energy requirements, and cost). In that way, Congress designed the
Clean Air Act’s processes for regulating air pollution
to adapt to “changing circumstances and scientific
developments” without imposing unreasonable technological or financial burdens on industry. Massachusetts v. EPA, 549 U.S. at 532. So, unlike the major
question of tobacco regulation in Brown & Williamson,
there is “nothing counterintuitive” about the EPA’s reasonable regulation of dangerous airborne substances
like greenhouse gases. Id. at 531–532.
Similarly, the major question in UARG was whom
the EPA was attempting to regulate. In that case, the
Supreme Court held that the EPA’s statutory permitting authority for the construction and modification of
stationary sources was “designed to apply to, and cannot rationally be extended beyond, a relative handful
of large sources capable of shouldering heavy substantive and procedural burdens”—sources like power
plants. 573 U.S. at 322. The Court held that, without
clear statutory grounding, the EPA’s effort to extend
App. 94
permitting requirements to literally millions of small
sources of greenhouse gas pollution but of no other
regulated pollutants—sources like schools, hospitals,
churches, and shopping malls—overshot its statutory
authority. Id. at 324, 328.
The Clean Power Plan, by contrast, regulated the
very entities the EPA was told by the Supreme Court
in AEP and UARG to regulate—fossil-fuel-fired power
plants. And it employed statutory tools that were
“suitable” for application to the long-regulated power
industry. See UARG, 573 U.S. at 323, 324 n.7. American
Electric Power pointed the Agency to regulation under
Section 7411 specifically, explaining that “Congress
delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from [new, modified,
and existing] powerplants” using the regulatory tools
laid out in Section 7411. 564 U.S. at 424–426.
That is no doubt a significant task for the EPA.
But that is not because of any agency overreach. It is
the product of Congress’ charge that the EPA regulate air pollution nationwide. And with respect to regulating greenhouse gas pollution in particular, it
reflects the fact that fossil-fuel-fired power plants predominate the power industry and are spread across
the Nation. See United States Energy Information Administration (EIA), Frequently Asked Questions: What
is U.S. Electricity Generation by Source? (Nov. 2, 2020),
https://www.eia.gov/tools/faqs/faq.php?id=427&t=2 (last
visited Jan. 11, 2021); EIA, U.S. Energy Mapping System, https://www.eia.gov/state/maps.php (last visited
Jan. 11, 2021). So much so that they “are by far” the
App. 95
greatest stationary contributor to greenhouse gas pollution and the significant dangers it causes for the public health and welfare. New Source Rule, 80 Fed. Reg.
at 64,522.
2.
Best System of Emission Reduction
So what the EPA may regulate (greenhouse gas
pollution), and whom it may target (power plants), and
how (under Section 7411) have all been resolved and
so do not trigger the major questions doctrine.
That leaves the EPA no place to house its majorquestion objection other than in the interpretation of
the statutory term “best system of emission reduction,”
42 U.S.C. § 7411(a)(1). More specifically, the EPA says
the use of any emission-control measures that do not
operate at the individual physical plant level requires
an express statement from Congress, and that federal
standards that might encourage generation-shifting
are therefore categorically forbidden under Section
7411.
But the major questions doctrine does not apply
there either for a number of reasons.
a.
Statutory Design
For starters, the “best system of emission reduction” plays a cabined role in the statutory scheme. The
determination of the best system of emission reduction
is entirely internal to the EPA. The EPA itself evaluates relevant scientific, technological, and economic
App. 96
evidence to identify, in its judgment, the “best system
of emission reduction” available, and the “degree of
emission limitation achievable” through it. 42 U.S.C.
§ 7411(a)(1).
In making that determination, the statute significantly reins in the EPA’s judgment by requiring the
Agency to (1) “tak[e] into account the cost of achieving
such reduction,” (2) factor in “any nonair quality health
and environmental impact,” (3) balance the effect on
“energy requirements,” and (4) ensure that the system has been “adequately demonstrated[.]” 42 U.S.C.
§ 7411(a)(1). To be “adequately demonstrated[,]” we
have explained, the system must be shown to be reasonably “reliable,” “efficient,” and “expected to serve
the interests of pollution control without becoming exorbitantly costly[.]” Essex Chem. Corp. v. Ruckelshaus,
486 F.2d 427, 433 (D.C. Cir. 1973), cert. denied, 416 U.S.
969 (1974); see also Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973) (whether a
system is adequately demonstrated “cannot be based
on ‘crystal ball’ inquiry”).9
Once the EPA identifies a best system that meets
those requirements and calculates the degree of emission limitation it allows, the Clean Air Act leaves it
9
In addition to these statutory constraints, the EPA has tied
its own hands by requiring that the best system include only actions touching three bases: (i) they reduce emissions (rather than,
for example, capturing emissions after they are released into the
air by planting trees), (ii) sources themselves can implement
them, and (iii) they target supply-side activities. See Clean Power
Plan, 80 Fed. Reg. at 64,776, 64,778–64,779.
App. 97
to the States to set their own standards of performance for their existing pollution sources. 42 U.S.C.
§ 7411(d). The cooperative-federalism design of Section
7411(d) gives the States broad discretion in achieving
those emission limitations. See AEP, 564 U.S. at 428
(“The Act envisions extensive cooperation between
federal and state authorities, generally permitting
each State to take the first cut at determining how
best to achieve EPA emissions standards within its domain[ ]”) (internal citations omitted). In addition, Section 7411(d) expressly allows States, in setting their
emission standards, to “take into consideration, among
other factors, the remaining useful life” of its existing
sources. 42 U.S.C. § 7411(d).
So the EPA’s scientific and technological identification of the best system of emission reduction cannot
bear the major-question label. Determining the system
is a task expressly and indisputably assigned by Congress to the EPA and requiring specialized agency expertise. That system serves only as the basis for the
EPA to set the emission-reduction targets in its quantitative guidelines. The States retain the choice of how
to meet those guidelines through standards of performance tailored to their various sources. Neither exercise entails resolution of a major question.
The EPA argues that its own best-system process
raised a major question by “impos[ing] ‘generation
shifting[.]’ ” EPA Br. 99. But under Section 7411(d), the
EPA does not impose the “best system of emission reduction” on anyone. Instead, each State decides for itself what measures to employ to meet the emission
App. 98
limits, and in so doing may elect to consider the “remaining useful life” of its plants and “other factors.” 42
U.S.C. § 7411(d). See Clean Power Plan, 80 Fed. Reg. at
64,709–64,710, 64,783. The Clean Power Plan, in fact,
afforded States considerable flexibility in choosing how
to calculate and meet their emissions targets. See, e.g.,
id. at 64,665, 64,756–64,757, 64,834–64,837.10
Congress already focused on the issue and made
the decision to rope the EPA’s selection of a best system
of emission reduction about with all of those substantive and structural limitations. So the major questions
doctrine does not provide any basis for concluding
that the Clean Air Act categorically forecloses the
EPA’s consideration of even those generation-shifting
measures that are already widely in use by States and
10
The Clean Power Plan expressly contemplated that States
and sources might choose to meet their emissions targets by using
measures other than the specific heat-rate improvements and
generation shifting that the EPA had identified in its best system.
See 80 Fed. Reg. at 64,755–64,758. The EPA offered a list of alternative available technologies that reduced power plants’ carbon
dioxide emissions per megawatt, including carbon capture and
storage, heat-rate improvements at non-coal plants, fuel switching to gas, fuel switching to biomass, and waste heat-to-energy
conversion. Id. at 64,756. In certain situations, for example, modifying coal-fired plants to burn natural gas could “help achieve
emission limits consistent with the [best system].” Id. The Agency
also identified a list of alternative measures that States could implement to lower overall emissions from fossil-fuel-fired plants.
Those measures included, for example, demand-side energy efficiency—a policy tool that the EPA expected some States to use
because “the potential emission reductions from demand-side [energy efficiency] rival those from [generation shifting] in magnitude[.]” Id.
App. 99
power plants and have been demonstrated to be reasonable, reliable, effective, and not unduly disruptive
to the regulated industry. See Clean Power Plan, 80
Fed. Reg. at 64,735, 64,769.
In that respect, the EPA’s argument sounds much
like a second argument rejected by the Supreme
Court in UARG. In addition to the scope question discussed above, the Court addressed whether the EPA
could require facilities that emit conventional pollutants also to implement the “best available control
technology” for greenhouse gases. UARG, 573 U.S. at
329–333 (citing 42 U.S.C. § 7475(a)(4)). Like the EPA
here, the industry petitioners argued that the “best
available control technology” standard was “fundamentally unsuited” to greenhouse gas emissions because it had “traditionally” focused on “end-of-stack
controls.” Id. at 329–330. “[A]pplying it to greenhouse
gases,” the industry petitioners insisted, would make
the “best available control technology” standard “more
about regulating energy use, which will enable regulators to control every aspect of a facility’s operation and
design[.]” Id. at 330 (internal quotation marks omitted).
The Supreme Court rejected that challenge. The
Court explained that the EPA’s guidance contemplated
both “end-of-stack”—type controls and energy efficiency measures. UARG, 573 U.S. at 330. And, critically, the Court emphasized that the statute and
regulations already imposed “important limitations
on [best available control technology] that may work
to mitigate petitioners’ concerns about ‘unbounded’
App. 100
regulatory authority.” Id. at 331. Among those limitations was the EPA’s longstanding statutory interpretation that the best available control technology was
required “only for pollutants that the source itself
emits,” and the EPA’s existing guidance that permitting authorities should “consider whether a proposed
regulatory burden outweighs any reduction in emissions to be achieved.” Id. The statute also required the
EPA to determine the best available control technology
with reference to “energy, environmental, and economic impacts and other costs.” 42 U.S.C. § 7479(3); see
also UARG, 573 U.S. at 333 n.9.
So too here: The numerous substantial and explicit constraints on the EPA’s selection of a best system of emission reduction foreclose using the major
questions doctrine to write additional, extratextual,
and inflexibly categorical limitations into a statute
whose “broad language * * * reflects an intentional effort to confer the flexibility necessary to forestall * * *
obsolescence.” Massachusetts v. EPA, 549 U.S. at 532;
see also Transmission Access Policy Study Group v.
FERC, 225 F.3d 667, 711 (D.C. Cir. 2000) (where Congress has spoken, court upholds as within agency authority an order that “fundamentally change[d] the
regulatory environment in which utilities operate” and
“introduc[ed] meaningful competition into an industry
that since its inception has been highly regulated and
affecting all utilities in a similar way”), aff ’d sub nom.
New York v. FERC, 535 U.S. 1 (2002).
The EPA points to the Supreme Court’s statement
in UARG that “[w]hen an agency claims to discover in
App. 101
a long-extant statute an unheralded power to regulate
‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.” 573 U.S. at 324 (quoting Brown & Williamson,
529 U.S. at 159).
True. But, as already explained, the EPA made no
new discovery of regulatory power with the Clean
Power Plan. While power plants are significant players
in the American economy, they have been subject to
regulation under Section 7411 for nearly half a century. See, e.g., Costle, 657 F.2d at 318; Oljato Chapter of
Navajo Tribe v. Train, 515 F.2d 654, 656–57 (D.C. Cir.
1975). Their emission of massive amounts of carbon dioxide has long been known. And the source of the EPA’s
duty to regulate that greenhouse gas pollution from
power plants was the plain statutory text and Supreme Court precedent, not something the EPA pulled
out of a hat. See AEP, 564 U.S. at 425; Massachusetts v.
EPA, 549 U.S. at 532.
In sum, the Clean Air Act expressly confers regulatory authority on the EPA to set standards for
reducing greenhouse gas emissions from fossil-fuelfired power plants nationwide. Congress knew both
the scope and importance of what it was doing. And
it cabined the EPA’s authority with concrete and judicially enforceable statutory limitations. The major
questions doctrine is meant to discern, not override,
such statutory judgments. Doubly so when the regulatory authority and its reach have been affirmed and
enforced by the Supreme Court.
App. 102
b.
Regulatory Consequences
The problems with the EPA’s approach to the major-question analysis do not stop there. The Agency
also conflates the significance of greenhouse gas regulation of power plants generally with any significance
attributable solely to the EPA’s choice of a “best system
of emission reduction”—the statutory provision where
the EPA tried to anchor its major-question objection.
Remember, the EPA concluded that the major questions doctrine was triggered centrally by (i) the Clean
Power Plan’s “billions of dollars of impact” on the
economy; (ii) its effect on “every electricity customer”;
(iii) the number of litigation challenges it spawned, “involving almost every State”; and (iv) its perceived
shifting of regulatory authority between federal agencies and the States. ACE Rule, 84 Fed. Reg. at 32,529.
Taking the characterizations as true, those consequences are a product of the greenhouse gas problem,
not of the best-system’s role in the solution. Given
the number and dispersion of fossil-fuel-fired power
plants, any nationwide regulation of their greenhouse
gas pollution that meaningfully addresses emissions
will necessarily affect a broad swath of the Nation’s
electricity customers. Under the EPA’s grave endangerment finding, so too would a failure to regulate
those greenhouse gas emissions. See 2009 Endangerment Finding, 74 Fed. Reg. at 66,496.
As for the “billions of dollars of impact[,]” the EPA
has offered no evidence tying that cost to generation
shifting rather than physical plant adjustments or a
App. 103
variety of other means States might choose for complying with emission limits As the EPA itself previously
acknowledged, generation shifting can be cheaper than
other demonstrated methods of reducing greenhouse
gas emissions, like carbon capture and storage, that
take place “at” the source (and thus fall within the
EPA’s current statutory vision). See Clean Power Plan,
80 Fed. Reg. at 64,727.11 Moreover, the Clean Power
Plan’s significant projected economic impact was not
atypical for Clean Air Act rulemakings by the EPA.
See, e.g., Costle, 657 F.2d at 314 (upholding 1979 new
source performance standards governing emission control by coal-burning power plants that imposed “tens
of billions of dollars” of costs on the power sector).
Even assuming that the EPA’s federalism concerns could trigger the major questions doctrine (rather than the federalism clear-statement canon), they
carry no material weight here. That is because the
statutory role of the best system of emission reduction
under Section 7411(d) textually preserves and enforces
the States’ independent role in choosing from among
the broadest range of options to set standards of performance appropriate to sources within their jurisdiction. In fact, it is the ACE Rule’s unreasoned
barriers to certain compliance measures, like generation shifting and biomass co-firing, that hamstring the
11
The EPA now takes the position that natural gas co-firing
is not adequately demonstrated and that neither co-firing nor carbon capture and storage is part of the best system of emission reduction. See ACE Rule, 84 Fed. Reg. at 32,544–32,545, 32,549.
But those methods are amenable to implementation “to” and “at”
the source, in keeping with the EPA’s statutory view.
App. 104
States. See supra Part II.A.3 (analyzing ACE Rule, 84
Fed. Reg. at 32,555–32,556).
Finally, it seems doubtful that the volume of litigation aimed at a regulation can reasonably bear on
its major-question status. The Supreme Court has certainly never embraced that idea. For good reason. A
doctrine at the mercy of litigation stratagems, or the
mere existence o
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