Amicus Curiae Brief — North Dakota, Petitioner v. Environmental Protection Agency, et al.

No. 20-1780

In the

Supreme Court of the United States

NORTH DAKOTA,

v.

Petitioner

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF AMICI CURIAE SOUTH TEXAS ELECTRIC

COOPERATIVE, INC., BUCKEYE POWER, INC.,

ASSOCIATED ELECTRIC COOPERATIVE, INC.,

ARIZONA ELECTRIC POWER COOPERATIVE, INC., EAST

KENTUCKY POWER COOPERATIVE, INC., AND MINNKOTA

POWER COOPERATIVE

IN SUPPORT OF PETITIONER

Jennifer Caughey

JACKSON WALKER L.L.P.

1401 McKinney Street,

Suite 1900

Houston, Texas 77010

jcaughey@jw.com

(713) 752-4388

Michael J. Nasi

Counsel of Record

Danica L. Milios

JACKSON WALKER L.L.P.

100 Congress Avenue,

Suite 1100

Austin, Texas 78701

mnasi@jw.com

dmilios@jw.com

(512) 236-2346

i

TABLE OF CONTENTS

Table of Authorities.............................................. ii

Statement of Interest ........................................... 1

Summary of Argument......................................... 5

Argument .............................................................. 6

I.

The Court Should Grant the Petition. .... 6

II. The Court Should Reverse the D.C.

Circuit’s Decision. ................................ 15

A.

The D.C. Circuit’s Decision Upends

the

System

of

Cooperative

Federalism Embodied in the CAA by

Stripping States of Their Statutory

Right to Serve as the Primary

Regulator of Existing Sources. ..... 15

B.

The

D.C.

Circuit’s

Decision

Erroneously Confers on the EPA

Extra-Statutory

Authority

to

Regulate (and Effectively Shut

Down) Wholesale Energy Markets

with

“Outside

the

Fence”

Regulations. .................................. 18

Conclusion .......................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Page

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ........................................ 15, 20

Am. Lung Assoc. v. EPA,

985 F.3d 914 (D.C. Cir. 2021) ........................ 15, 17

City of Arlington v. F.C.C.,

569 U.S. 290 (2013) .............................................. 18

Basin Elec. Power Coop., et al. v. EPA, et al.,

No. 15A776, App. ................................................. 12

In re Brazos Elec. Power Coop., Inc.,

No. 21-30725 (Bankr. S.D. Tex. 2021) ................. 11

Maracich v. Spears,

570 U.S. 48 (2013) ................................................ 20

Maryland v. King,

567 U.S. 1301 (2012) .............................................. 8

Michigan v. EPA,

576 U.S. 743 (2015) .............................................. 13

New York v. United States,

505 U.S. 144 (1992) .............................................. 18

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ........................................ 18, 19

iii

Statutes, Regulations, and Rules

42 U.S.C. § 7411(d)(1) ....................................... passim

40 C.F.R. § 60.22 ......................................................... 7

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg.

64,662 (Oct. 23, 2015) .................................... 6, 7, 8

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) .................. 9, 10

Sup. Ct. Rule 37.2........................................................ 1

Sup. Ct. Rule 37.6........................................................ 1

Other Authorities

Order in Pending Case, North Dakota, et al.

v. EPA, et al., Nos. 15A793, 15A773,

15A776, 15A778, 15A787 (Feb. 9, 2016) ............... 8

iv

Supreme Court Stays EPA’s Clean Power

Plan, AM. BAR ASS’N PRAC. POINTS (Feb.

17, 2016),

https://www.americanbar.org/groups/liti

gation/committees/environmentalenergy/practice/2016/021716-energysupreme-court-stays-epas-clean-powerplan/ ........................................................................ 9

Tribe: Why EPA’s Climate Plan Is

Unconstitutional,

https://today.law.harvard.edu/why-epaclimate-plan-is-unconstitutional/ ........................ 18

STATEMENT OF INTEREST1

South Texas Electric Cooperative, Inc. (“STEC”),

Buckeye Power, Inc. (“BPI”), Associated Electric

Cooperative, Inc. (“AECI”), Arizona Electric Power

Cooperative, Inc. (“AEPC”), East Kentucky Power

Cooperative, Inc. (“EKPC”), and Minnkota Power

Cooperative (“MPC”) (collectively “Amici”) appear as

Amici Curiae in support of North Dakota’s petition for

writ of certiorari to express their deep concern with

the decision below. Amici are nonprofit generation

and transmission cooperatives whose missions are to

provide the infrastructure and services to deliver

reliable and economical electric power to their

members across a large swath of the United States.

STEC was formed in 1944. Using a variety of

energy sources, including wind, lignite, natural gas,

diesel fuel, and hydroelectric, STEC provides

wholesale electric services to its member distribution

cooperatives, comprised of multiple cooperatives in

the South Texas area. These rural distribution

cooperatives serve over 241,000 members in fortyseven South Texas counties.

BPI, Ohio’s generation and transmission

cooperative, similarly provides power to 24 Ohio1 Amici have timely notified counsel for all parties of its intent to

file this brief and obtained consent to file. Sup. Ct. Rules 37.2.

No party or counsel for a party authored this brief in whole or in

part, and no person or entity, other than STEC, made any

monetary contribution to its preparation or submission. Sup. Ct.

Rule 37.6.

2

based electric cooperatives and the Michigan-based

Midwest Energy & Communications. Formed in 1959,

BPI is focused on providing reliable, affordable

electricity to member cooperatives, who then

distribute it to nearly 400,000 homes and businesses

in the state of Ohio. Owned and governed by the

cooperatives it serves, BPI is dedicated to providing

its member cooperatives with affordable and

responsibly

produced

power

by

balancing

affordability,

reliability,

and

environmental

responsibility. Included in that mix is coal, natural

gas, solar, hydropower, biomass, and other smallscale renewable energy generation.

AECI, founded in 1961, is a three-tiered

cooperative that provides wholesale electric services

to six electric cooperative members. These

cooperatives, in turn, supply 51 local electric

cooperatives in Missouri, Iowa, and Oklahoma,

serving about 910,000 member homes, farms, and

businesses. AECI delivers affordable and reliable

power to its members through a blend of generation

that includes coal, natural gas, wind, and hydropower.

Also formed in 1961, AEPC is a member-owned,

not-for-profit electric generation and transmission

cooperative providing power to meet its members’

energy needs in Arizona, California, and New Mexico.

AEPC strives to provide safe, reliable, and affordable

power to electric cooperatives across the Southwest.

3

EKPC was formed in 1941. Although initially

sidelined by World War II, by 1954, EKPC brought

light to the countryside, dramatically improving the

lives of rural citizens. EKPC’s first power lines

brought a new freedom and a better way of life to

Kentucky families. EKPC is owned by and provides

power to sixteen member cooperatives. Like the other

amici herein, EKPC generates power using a mix of

resources, including coal, natural gas, fuel oil, solar,

methane gas, and hydropower.

MPC is a not-for-profit electric generation and

transmission cooperative headquartered in Grand

Forks, N.D. Formed in 1940, Minnkota provides

wholesale electric energy to eleven member-owner

distribution cooperatives located in eastern North

Dakota and northwestern Minnesota. These members

serve nearly 137,000 consumer accounts in a 34,500

square-mile area. Minnkota also serves as operating

agent for the Northern Municipal Power Agency

(NMPA). NMPA supplies the electric needs of twelve

associated municipals that serve more than 15,000

consumer accounts in the same geographic area as the

Minnkota member-owners. The primary source of

electric generation for the Minnkota member-owners

is the Milton R. Young Station, a two-unit, lignite

coal-fired power plant located near the town of Center,

North Dakota. Minnkota’s electric generation

portfolio also includes energy purchased from three

North Dakota wind farms and hydroelectricity.

4

Amici and their member cooperatives serve

mainly rural Americans who require affordable and

reliable power. Electric cooperatives are unique

because they have a cost sensitive end-user base of

rural, economically disadvantaged communities, and

agricultural users. As a result, cooperatives must

serve reliable power over larger geographic areas with

limited financial resources, as compared to investorowned utilities. To meet their customer and member

obligations, Amici all depend, in varying degrees, on

coal-fired and natural gas generation sources. And all

either own or have entered long-term power purchase

agreements with such sources—many extending

decades into the future.

The D.C. Circuit’s decision below threatens

Amici’s generation sources with forced early

retirement, which will in turn cause significant

uncertainty and unwarranted reliability challenges.

Indeed, as aptly demonstrated by Winter Storm Uri,

as well as summer grid conditions, coal-fired and

natural-gas power plants play a critical role in the

grid reliability and in the affordability of power in

rural areas across each of the states served by Amici.

STEC, BPI, AECI, AEPC, EKPC, and MPC have

a strong interest in ensuring the continued

availability of this aspect of their generation

capability. Amici urge the Court to grant the petition.

5

SUMMARY OF ARGUMENT

North Dakota’s petition for certiorari presents

important and compelling questions that necessitate

the Court’s attention and resolution. Under the D.C.

Circuit’s decision—and contrary to the controlling

statutory text—the EPA now has unfettered

discretion, through the imposition of carbon-emission

caps, to control the available power generation

sources in this country by forcing the closure of fossilfuel-fired plants, without regard to the useful life of

those sources, the cost of replacing them, or the

effectiveness

of

their

federally

preferred

replacements. With this recently discovered power,

EPA is now authorized to set regulations far out of the

bounds set by Congress in the Clean Air Act (“CAA”),

imposing tremendous expense and undue uncertainty

on rural power generators such as Amici, and

ultimately on the rural (and relatively less affluent)

American public. Granting North Dakota’s petition to

answer the legal questions created by the D.C.

Circuit’s decision is the only way to prevent the

looming, unrecoverable costs that will be associated

with the EPA’s regime.

The D.C. Circuit’s erroneous decision goes to the

very heart of the system of cooperative federalism

embodied in the CAA. Sweeping aside the plain terms

of CAA section 7411(d), which unmistakably leave to

the States the authority in the first instance to assess

and regulate existing sources (such as Amici) within

their borders, the D.C. Circuit concluded instead that

section 7411(d) vests the EPA with broad, unlimited,

6

authority to regulate existing sources without regard

to the State’s authority or their regulatory regimes.

Simply put, the D.C. Circuit got it exactly backwards.

Not only did the D.C. Circuit ignore the CAA’s

statutory text, it also ignored the Court’s clear

warning that agencies are not free to rewrite statutory

terms to accommodate what the agency—as opposed

to Congress—desires. In doing so, the D.C. Circuit has

given the EPA carte blanche to undermine the State’s

authority to regulate power sources within their

borders, as expressly contemplated by the CAA.

The D.C. Circuit’s expansive grant of authority to

the EPA contravenes the plain text of the CAA; it

flouts this Court’s consistent jurisprudence limiting

administrative agencies to the powers assigned them

by Congress; and it threatens grave, uncompensable

harm to those (like Amici) who will undoubtedly fall

under the EPA’s newly minted (and extra-statutory)

authority.

ARGUMENT

I.

THE COURT SHOULD GRANT THE PETITION.

The scope and extent of EPA’s authority to

regulate greenhouse gas emissions with measures

that set mandatory state carbon emission budgets

derived from “outside the fence line” assumptions has

been a looming question for over five years—since the

EPA promulgated the former Clean Power Plan.

Carbon Pollution Emission Guidelines for Existing

Stationary Sources: Electric Utility Generating Units,

7

80 Fed. Reg. 64,662 (Oct. 23, 2015) (the “Clean Power

Plan” or “CPP”). Under the CPP, the EPA set “final

emission guidelines” in the form of mandatory state

carbon budgets that States were, in turn, required to

meet through the establishment of performance

standards for existing power plants within their

borders. Id. at 64,662; 40 C.F.R. § 60.22. EPA’s socalled “guidelines” included “performance rates” for

coal and other fossil-fuel-fired plants, derived from

what the EPA identified as the “best system of

emission reduction” for existing plants. 80 Fed. Reg.

at 64,662.

By all accounts, the CPP’s mandates applicable to

existing coal and other fossil-fuel-fired power plants

imposed limits that could not be achieved with control

technologies available at the plants themselves or in

the industry as a whole. It is generally understood

that the only way fossil-fuel-fired power plants could

have hypothetically complied with the CPP would

have been to install certain carbon-capturing

technologies. But in reality, carbon-capture

technologies are not commercially demonstrated and,

even if they were, such technology are not viable

options at many facilities due to lack of space or

options for subsurface carbon sequestration. The only

way the targeted plants could have “complied” with

the CPP would have been to curtail operations at coal

and/or gas fueled plants or retire such plants (often in

advance of the end of their useful lives).

8

Thus there is no dispute that the CPP would have

effectively forced the shut-down or significant

curtailment of coal and other fossil-fuel-fired plants

well before the expiration of their useful lives. This

was precisely the intent of the regulations. As EPA

acknowledged: “most of the CO2 controls need to come

in the form of . . . replacement of higher emitting

generation with lower- or zero-emitting generation.”

Id. at 64,728.

The CPP was immediately challenged in the D.C.

Circuit Court of Appeals by numerous parties. But

before the CPP could take effect, this Court stayed its

implementation pending the outcome of the D.C.

Circuit challenges. Order in Pending Case, North

Dakota, et al. v. EPA, et al., Nos. 15A793, 15A773,

15A776, 15A778, 15A787 (Feb. 9, 2016).

The Court’s action in this regard was noteworthy.

Obtaining a stay from this Court is not an easy hurdle

in any situation. In the context of a stay sought

pending resolution of a petition for writ of certiorari,

for example, a majority of the Justices of the Court

must conclude that there was at least: “(1) ‘a

reasonable probability’ that th[e] Court w[ould] grant

certiorari, (2) ‘a fair prospect’ that the Court w[ould]

then reverse the decision below, and (3) ‘a likelihood

that irreparable harm [will] result from the denial of

a stay.’” Maryland v. King, 567 U.S. 1301, 1302 (2012)

(Roberts, C.J., in chambers) (citing Conkright v.

Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J.,

in chambers)).

9

Here, however, the Court stayed the CPP before

the D.C. Circuit had the chance to consider and rule

on it. That action, reportedly the first of its kind,2

alone signals the importance of the EPA’s

unprecedented exercise of authority under the CPP.

Moreover, it aptly demonstrated that EPA’s attempt

to federally control power sources available to the

States using outside-the-fence-line regulations

exceeded the scope of EPA’s authority under CAA

section 7411(d).

Indeed, subsequent to the Court’s stay order, the

EPA heeded the Court’s warning and repealed the

CPP, promulgating in its place the Affordable Clean

Energy Rule. 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) (“ACE

Rule”). The ACE Rule eliminated regulations that

would apply “wholly outside a particular source,” id.

at 32,526, and issued standards and limits that could

be applied and achieved at a particular source—inside

the fence line. In doing so, the EPA’s stated intention

Courtney Scobie, Supreme Court Stays EPA’s Clean Power

AM. BAR ASS’N PRAC. POINTS (Feb. 17, 2016),

https://www.americanbar.org/groups/litigation/committees/envi

ronmental-energy/practice/2016/021716-energy-supreme-courtstays-epas-clean-power-plan/ (“This is the first time the Supreme

Court has ever issued a stay on regulations before an initial

review by a federal appeals court.”).

2

Plan,

10

was to strictly abide by the limits on its authority set

by CAA section 7411(d). Id. at 32,532.

On challenge to the D.C. Circuit again, this time

with the parties reversed, the court below struck down

the ACE Rule, concluding that the EPA’s repeal of the

CPP was invalid and that there are effectively no

limits on EPA’s authority under CAA section 7411(d).

Under the D.C. Circuit’s decision, the EPA is now

authorized to impose unrealistic—and unattainable—

emission standards on existing sources, such as those

operated by Amici. As noted by North Dakota’s

petition for certiorari, the effect of the D.C. Circuit’s

decision is to grant EPA authority under CAA section

7411(d) to federally force States to shift their

generation capacity from coal and other fossil-fuelfired sources to renewable sources, regardless that the

plain text of the statute requires EPA to permit States

to take into consideration, among other Statecentered factors, the remaining useful-life of their

existing sources. North Dakota Pet. for Cert. at 5.

Absent necessary action from this Court, the EPA

has a free pass, granted by the D.C. Circuit, to run

roughshod over CAA section 7411(d), the States’

position in the CAA’s system of cooperative

federalism, and power generators like Amici to

promulgate a rule that, like the CPP, imposes strict

limits and regulations on carbon emissions to force the

shutdown of fossil-fuel-fired plants, regardless that

those plants may provide a State with the most

reliable and cost effective power source. And—more

11

importantly—regardless of the fact that the authority

to make that choice in the first instance was expressly

granted by Congress to the States.

Time is of the essence. This Court has every

ability to address these pressing issues now. The

harm cannot be undone if the DC Circuit decision goes

unreviewed. In particular, harm is being done by the

uncertainty caused by the looming threat of EPA’s

inference of unchecked authority, not just the actual

anticipated rule. The D.C. Circuit’s sanction of

expansive inferred (and extra-statutory) authority

exposes rural cooperative members to immediate

reliability risks and economic harm.

For STEC, for example, the uncertainty created

by the D.C. Circuit decision is the opposite of a trivial

matter. It is a matter of great human and economic

consequence. The risk to grid reliability and resilience

associated with the continued loss of coal-fueled

power plants is not abstract, as Texas just saw

firsthand. STEC was fortunate during Winter Storm

Uri to have enough power generation to cover the

needs of its members, which protected it from the kind

of economic ruin experienced by other rural electric

cooperatives in Texas that did not have enough

reliable generation to meet the needs of their

members. See, e.g., In re Brazos Elec. Power Coop.,

Inc., No. 21-30725 (Bankr. S.D. Tex. 2021)

(information regarding the multi-billion dollar

exposure of Brazos due to insufficient generation

resources may be obtained on the website of the

12

Debtor’s

claims

and

noticing

http://cases.stretto.com/Brazos).

agent

at

But STEC’s ability to cover the needs of its

members is dependent on the ongoing viability of the

San Miguel coal-fueled power plant. That very plant

was the focus of one of the declarations establishing

the need for this Court’s stay of the CPP. Basin Elec.

Power Coop., et al. v. EPA, et al., No. 15A776, App. at

a307-332 (declaration of Derrick Brummett, CFO, San

Miguel Electric Cooperative, Inc.). As the declaration

made clear, the immediate threat to San Miguel (and

STEC, due to its dependence upon San Miguel’s

power) caused by EPA’s outside-the-fence carbon

regulation of power plants is not just from the

ultimate passage of a rule. There is also harm from

the uncertainty caused in the meantime by the threat

of EPA vastly expanding its authority beyond the

letter of the law on which San Miguel and STEC rely

when making generation planning decisions. Like the

irreparable harm San Miguel demonstrated would

result if it had to make major capital decisions while

awaiting the CPP’s fate, the current state of EPA’s

broad authority, untethered by the statutory text,

precludes STEC from making necessary planning

decisions.

Adding insult to injury, the regulatory

uncertainty caused by EPA’s actions makes financing

resources more expensive and scarce due to the

reluctance of private financial institutions to invest in

fossil-fuel-fired assets. Accordingly, even if Amici

13

attempted to comply with the EPA’s overreach, they

would be hard pressed to do so, simply for financial

reasons.

In a world where tight grid conditions mandate

that STEC continue to make capital investments in its

generation resources, the fact that EPA has been

given a license by the D.C. Circuit to regulate far

beyond the limits of the CAA puts in question whether

the investments STEC, San Miguel, and other

cooperatives make in their plants will be wasted if

those assets are forced to retire before the end of their

useful lives once carbon caps are imposed.

Unless the Court acts, the uncertainties described

above will compel San Miguel and others in its

position to toe EPA’s line, if they are financially able,

regardless of its underlying legality. This exact

situation happened with the EPA’s Mercury Air

Toxics Standards. By the time the Court ultimately

held EPA’s rule was defective in Michigan v. EPA, 576

U.S. 743 (2015), the industry had essentially come

into compliance costing ratepayers millions of dollars

(and

severely

compromising

the

market

competitiveness of plants in deregulated wholesale

markets) through an illegal exercise of power.

Tellingly, as noted by North Dakota, EPA proudly

trumpeted its ability to impose its illegal regulations

in the breach. North Dakota Pet. for Cert. at 33 (citing

e.g., In Perspective: the Supreme Court’s Mercury and

Air Toxics Rule Decision, EPA CONNECT (June 30,

2015),

https://blog.epa.gov/blog/2015/06/in-

14

perspective-the-supremecourtsmercury-and-airtoxics-rule-decision/). Because the Court’s firmly

established precedent prohibits regulation by such

extra-legal means, it must step in to limit the agency’s

action to that clearly authorized by Congress and not

by agency (or even judicial) creativity in evading the

bonds that Congress imposed.

Therefore, it is not just permissible and useful for

the Court to provide immediate clarity regarding the

nature and scope of the authority Congress granted

the EPA under section 7411(d) of the CAA, it is also

essential to enable rural electric cooperatives like

Amici to make prudent use of their limited resources.

Those entities need to be able to attempt to fend off

the human and economic fallout of power outages

without fear that the investments they make will be

wasted. For a rural electric cooperative like STEC,

that serves several of the poorest rural counties in the

United States, including Starr, Willacy, Dimmit,

Hidalgo, Zavala, Brooks, Zapata, Bee, Webb,

Cameron, and Duval counties, the prudent

investment of limited funds is a very serious matter.

The Major Questions doctrine is compelling in

situations like this, where multi-billion dollar

decisions must be made to avoid multi-billion dollar

losses. Decision-makers should be able to rely upon

the express authority granted to the EPA by

Congress, not the judicial expansion of that authority

created by the D.C. Circuit’s opinion. The time to stop

15

the wild swing of statutory interpretation from

administration to administration is now.

The Court should grant North Dakota’s petition

for certiorari and decide the important questions

presented therein.

II.

THE COURT SHOULD REVERSE THE D.C. CIRCUIT’S

DECISION.

The Court should reverse the D.C. Circuit’s

decision. The decision grievously misconstrues the

CAA and erroneously grants to the EPA authority

expressly reserved to the States by permitting the

EPA to regulate wholesale energy markets with

regulations applying outside the fence line of an

existing source’s facility. In doing so, the D.C. Circuit

ignored the text of the statute as well as long-standing

Court precedent limiting agency powers to those

granted by Congress.

A.

The D.C. Circuit’s Decision Upends the

System

of

Cooperative

Federalism

Embodied in the CAA by Stripping States of

Their Statutory Right to Serve as the

Primary Regulator of Existing Sources.

As the Court has confirmed, and the D.C. Circuit

acknowledged, the CAA establishes a system of

cooperative federalism between the EPA and the

States, under which the States are assigned the

primary role in air pollution prevention and control.

Am. Electric Power Co. v. Connecticut (“AEP”), 564

U.S. 410, 424-28 (2011); Am. Lung Assoc. v. EPA, 985

16

F.3d 914, 942 (D.C. Cir. 2021) (describing CAA section

7411(d) as creating “complementary roles” for the

EPA and the States and stating “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.”).

Under this “cooperative framework,” CAA section

7411(d) expressly requires the EPA to direct States to

set standards for existing sources, but assigns to the

States the primary responsibility for setting and

enforcing their standards.

In particular, section 7411(d), entitled “Standards

of performance for existing sources; remaining useful

life of source,” requires States to submit to the EPA a

plan establishing standards of performance for

existing sources of air pollutants. 42 U.S.C.

§ 7411(d)(1). Under this provision, the EPA “shall

permit” the States to “take into consideration, among

other factors, the remaining useful life of the existing

source to which such standard applies.” Id.

The EPA is permitted to interfere in this process

only if a State fails in its obligation to submit a plan.

Id. § 7411(d)(2). Even in that circumstance, the EPA

still “shall take into consideration, among other

factors, remaining useful lives of the sources in the

category of sources to which such standard applies.”

Id.

17

The D.C. Circuit swept aside the plain terms of

section 7411(d) in concluding that the EPA has

authority to “reach past the States and directly

promulgate standards of performance” to States’

existing sources under the CPP. North Dakota Pet. for

Cert. at 6. As a result, the D.C. Circuit’s decision

permits the EPA to impose standards on existing

sources, irrespective of their useful life or other

considerations the States are entitled to consider

under the terms of CAA section 7411(d).

The D.C Circuit downplayed the impact its

decision would have on States, claiming that the CPP

afforded States “considerable flexibility in choosing

how to calculate and meet their emissions targets.”

Am. Lung Assoc., 985 F.3d at 963. But, contrary to the

court’s assurances, the CPP’s carbon dioxide limits

were based on hard-wired assumptions designed to

force fossil-fuel-fired plants out of existence

regardless of age or importance to a given State’s grid.

Rather than providing States with true flexibility in

meeting the EPA’s emissions targets, treating them as

the co-equal sovereigns envisioned by Congress under

the CAA, the “flexibility” afforded by the CPP’s carbon

caps was neither flexible nor cooperative. As pointed

out by Professor Lawrence Tribe in commentary about

the coercive nature of the CPP, “a robber who says,

‘Your money or your life,’ can’t eliminate the coercion

18

by saying, ‘And you can pay me in cash, or credit, or

bitcoin.’”3

The CPP did not cooperate with the States or

provide them with the flexibility, to which they are

statutorily entitled, to regulate their power grids. It

effectively commandeered the States, in violation of

the Tenth Amendment, to impose the EPA’s chosen

carbon standards—irrespective of the States’

preferred (and more economically sensible) power

sources. E.g. New York v. United States, 505 U.S. 144,

188 (1992). By holding that the EPA was authorized

to promulgate the CPP, the D.C. Circuit’s decision

upsets the delicate balance of state and federal power

forged by Congress in the CAA.

B.

The D.C. Circuit’s Decision Erroneously

Confers on the EPA Extra-Statutory

Authority to Regulate (and Effectively Shut

Down) Wholesale Energy Markets with

“Outside the Fence” Regulations.

It is axiomatic that EPA has no discretion to act

beyond the power delegated to it by Congress. Util. Air

Regulatory Grp. v. EPA (“UARG”), 573 U.S. 302, 315

(2014). When an agency acts beyond its authority, it

acts “ultra vires.” City of Arlington v. F.C.C., 569 U.S.

290, 297 (2013).

3

Tribe: Why EPA’s Climate Plan Is Unconstitutional,

https://today.law.harvard.edu/why-epa-climate-plan-isunconstitutional/

19

Moreover, “[w]hen an agency claims to discover in

a long-extant statute an unheralded power to regulate

a significant portion of the American economy,” the

Court “typically greet[s] its announcement with a

measure of skepticism.” UARG, 573 U.S. at 324. And

the Court expects “Congress to speak clearly if it

wishes to assign to an agency decisions of vast

‘economic and political significance.’” Id. (quoting

F.D.A. v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 160 (2000)).

Here, EPA promulgated a regulation that

unquestionably would have had the effect of shutting

down all coal-fired contributors to the country’s power

grid, contrary to State preferences. It is hard to

imagine a decision of greater “economic and political

significance.” Yet, nowhere in the CAA, much less

section 7411(d) of the CAA (which expressly grants

States the right to make the first call with regard to

regulation of existing sources), is there any authority

for EPA to undertake such a mission.

Certainly, Congress has not spoken remotely

clearly that it intended to authorize direct EPA

control over States through a provision in which it

vested States the primary authority to regulate

existing sources. Nonetheless, the D.C. Circuit

approved the EPA’s discovery of its own previously

“unheralded power” and granted EPA authority to

effectively “force generation shifting for States under

Section 111(d).” North Dakota Pet. for Cert. at 6.

20

In doing so, the D.C. Circuit focused on the

definition of “best system of emission reduction” in

isolation without regard to the fact that the CAA

requires this standard be applied to “new sources” by

EPA and “existing sources” by the States. Having

decoupled the statutory analysis, the D.C. Circuit

erroneously concluded that Congress empowered the

EPA to look beyond the source to any combination of

factors it wants to fashion a “best system of emissions

reduction.” But section 7411(d) authorizes regulation

of sources, not amorphous “systems” and EPA’s

regulations must be fashioned for those sources. See

Maracich v. Spears, 570 U.S. 48, 65 (2013) (“It is

necessary and required that an interpretation of a

phrase of uncertain reach is not confined to a single

sentence when the text of the whole statute gives

instruction as to its meaning.”).

The D.C. Circuit’s decision ignores the text and

structure of section 7411(d). As this Court has made

clear, there is no “federal common law” that the courts

may wield to adjust a statute according to what they

perceive is (or should have been) required. Instead,

“the Clean Air Act displaces federal common law” and

“when Congress addresses a question . . . the need for

such an unusual exercise of law-making by federal

courts disappears.” AEP, 564 U.S. at 423-24

(emphasis added). Simply, the role of the courts is to

enforce the statutes as Congress has enacted them.

The D.C. Circuit’s decision disregards the plain

limits on EPA’s authority under CAA section 7411(d).

21

It confers unchecked authority on the EPA to dictate

power generation sources in a manner far outside the

bounds of the CAA. The rural ratepayers served by

Amici will shoulder the economic and human

consequences unless this Court acts now.

CONCLUSION

The Court should grant the petition for certiorari

and reverse.

Respectfully submitted.

Jennifer Caughey

JACKSON WALKER L.L.P.

1401 McKinney Street,

Suite 1900

Houston, Texas 77010

jcaughey@jw.com

(713) 752-4388

Michael J. Nasi

Counsel of Record

Danica L. Milios

JACKSON WALKER L.L.P.

100 Congress Avenue

Suite 1100

Austin, Texas 78701

mnasi@jw.com

dmilios@jw.com

(512) 236-2346

July 22, 2021