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

Nos. 20-1530, 20-1531, 20-1778, and 20-1780

In the Supreme Court of the United States

___________

STATE OF WEST VIRGINIA, ET AL., PETITIONERS

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

THE NORTH AMERICAN COAL CORPORATION, PETITIONER

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

BRIEF IN OPPOSITION FOR

POWER COMPANY RESPONDENTS

___________

Kevin Poloncarz

COVINGTON & BURLING LLP

415 Mission Street, Suite 5400

San Francisco, CA 94105

(415) 591-6000

kpoloncarz@cov.com

August 5, 2021

Beth S. Brinkmann

Counsel of Record

Eric Chung

Laura Dolbow

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

Counsel for Respondents

Additional Captions Listed on Inside Cover

WESTMORELAND MINING HOLDINGS LLC, PETITIONER

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

NORTH DAKOTA, PETITIONER

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL REGAN, ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY.

___________

i

QUESTION PRESENTED

Whether the court of appeals erred by vacating and

remanding an agency rule that repealed and replaced

an earlier rule, where the agency’s sole basis for the

new rule was the erroneous conclusion that 42 U.S.C.

§ 7411(d) unambiguously required it.

ii

CORPORATE DISCLOSURE STATEMENTS

Pursuant to this Court’s Rule 29.6, Power Company Respondents—Consolidated Edison, Inc., Exelon

Corporation, National Grid USA, New York Power

Authority, Power Companies Climate Coalition, and

Sacramento Municipal Utility District—provide the

following disclosure statements.

Consolidated Edison, Inc. (“Con Edison”)

states that it is a holding company that has outstanding shares and debt held by the public and may issue

additional securities to the public. Con Edison has no

parent corporation and no publicly held company

owns 10 percent or more of its stock.

Exelon Corporation states that it is a holding

company. It has no parent corporation and no publicly

held company owns 10 percent or more of its stock.

National Grid USA states that it is a holding

company. All of the outstanding shares of common

stock of National Grid North America Inc. are owned

by National Grid (US) Partner 1 Limited. All of the

outstanding ordinary shares of National Grid (US)

Partner 1 Limited are owned by National Grid (US)

Investments 4 Limited. All of the outstanding ordinary shares of National Grid (US) Investments 4

Limited are owned by National Grid (US) Holdings

Limited. All of the outstanding ordinary shares of National Grid (US) Holdings Limited are owned by

National Grid plc. National Grid plc is a public limited company organized under the laws of England

and Wales. No publicly held corporation directly owns

iii

10 percent or more of National Grid plc’s outstanding

ordinary shares.

New York Power Authority (“NYPA”) states

that it is a New York State public-benefit corporation.

NYPA has no parent corporation and no publicly held

company owns 10 percent or more of its stock.

Power Companies Climate Coalition states

that it is an unincorporated association of companies

engaged in the generation and distribution of electricity and natural gas. Its members include the Los

Angeles Department of Water and Power (“LADWP”),

Pacific Gas and Electric Company, Seattle City Light

and the other entities providing disclosures in this

statement.

LADWP states that it is a vertically integrated

publicly-owned electric utility of the City of Los Angeles.

Sacramento Municipal Utility District states

that it is has no parent corporation and no publicly

held company owns 10 percent or more of its stock.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

CORPORATE DISCLOSURE STATEMENTS ......... ii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ........................................................1

REASONS FOR DENYING THE PETITION ............3

I. The Decision Below Is Not An Appropriate

Vehicle For This Court’s Review. ..........................3

A. There is no extant agency rule that

reflects the agency’s view of its

statutory authority, thus rendering this

case an inappropriate vehicle for

review. ...........................................................4

B. The stay entered years ago against the

CPP Rule does not provide grounds for

this Court’s review. ......................................8

II. The Decision Below Is Correct And Does Not

Present The Broad Issues Urged By

Petitioners. .............................................................9

A. The decision below correctly vacated

and remanded the ACE Rule because it

was based on the erroneous view that

the Rule was unambiguously mandated

by statute. ...................................................10

v

B. The decision below does not present the

broad range of other issues urged by

Petitioners. .................................................14

C. The decision below maintains the

longstanding regulatory environment in

which the EPA, States, and the

regulated industry use flexible

compliance mechanisms to reduce

power sector emissions under the Clean

Air Act. ........................................................20

D. The decision below will not result in the

massive consequences claimed by

Petitioners. .................................................22

CONCLUSION ..........................................................23

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................ 4

Am. Elec. Power Co. v. Connecticut,

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

City of L.A. Dep’t of Airports v. Dep’t of

Transp.,

103 F.3d 1027 (D.C. Cir. 1997) ............................ 13

Food & Drug Admin. v. Brown &

Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 15

King v. Burwell,

576 U.S. 473 (2015) .............................................. 15

Labor, Mine Safety & Health Admin. v.

Nat’l Cement Co. of Cal.,

494 F.3d 1066 (D.C. Cir. 2007) ............................ 13

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 19

Nat’l Park Hospitality Ass’n v. Dep’t of

Interior,

538 U.S. 803 (2003) ............................................ 4, 9

Negusie v. Holder,

555 U.S. 511 (2009) .............................................. 13

vii

Peter Pan Bus Lines, Inc. v. FMCSA,

471 F.3d 1350 (D.C. Cir. 2006) ............................ 13

Prill v. NLRB,

755 F.2d 941 (D.C. Cir. 1985) .............................. 13

Prime Time Int’l Co. v. Vislack,

599 F.3d678 (D.C. Cir. 2010) ............................... 13

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 16

Statutes

42 U.S.C. § 7411 ................................................ passim

H.B. 1526, 2020 Reg. Sess. (Va. 2020) ........................ 7

H.B. 2021, 81st Leg. Assemb., Reg.

Sess. (Or. 2021) ...................................................... 7

Pub. L. No. 2019, ch. 477 (Me. 2019) .......................... 7

Other Authorities

Carbon Pollution Emission Guidelines

for Existing Stationary Sources:

Electric Utility Generating Units, 80

Fed. Reg. 64,662 (Dec. 22, 2015) ........................... 1

Exec. Order No. 3 (Conn. Sept. 3, 2019) ..................... 7

Exec. Order No. 38 (Wis. Aug. 16, 2019) .................... 7

viii

Office of Air Quality Planning and

Standards, EPA, Regulatory Impact

Analysis for the Repeal of the Clean

Power Plan, and the Emission

Guidelines for Greenhouse Gas

Emissions from Existing Electric

Utility Generating Units (June 2019).................... 6

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)................................ 1, 10

1

INTRODUCTION

Petitioners urge this Court to grant review to address the outer limits of an agency’s statutory

authority under 42 U.S.C. § 7411 without the benefit

of any extant agency action that reflects the agency’s

current view of its authority. Petitioners posit expansive authority that the agency might wield in

forthcoming rulemaking, just to shoot it down. Review to address Petitioners’ arguments while the

agency reexamines its authority would be advisory

and premature. Judicial review should be based on

review of agency authority in fact exercised, and in the

context of the administrative record supporting that

agency action. This case therefore does not present an

appropriate vehicle for this Court’s review.

Each of the four Petitions attempts to craft a

slightly different basis for this Court’s review. All of

the arguments for review are premised, however, on

what the agency might do in the future. The four Petitions make claims about both the Affordable Clean

Energy (“ACE”) Rule, which the decision below vacated,1 and the Clean Power Plan (“CPP”) Rule,2

which was repealed and replaced by the ACE Rule.

But neither the government nor the electricity sector

petitioned for certiorari to defend the ACE Rule. And

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).

1

2 Carbon Pollution Emission Guidelines for Existing Stationary

Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662

(Dec. 22, 2015).

2

neither the ACE Rule nor the CPP Rule is in effect at

this time.

The Petitions inaccurately suggest that the court

of appeals’ decision ratifies the view of the agency’s

authority reflected by the earlier CPP Rule. But the

court of appeals made no such pronouncement on the

scope of the agency’s authority under 42 U.S.C.

§ 7411(d), nor on the legality of the CPP Rule, and the

agency has since announced that it will revisit the

scope of its authority on a clean slate.

Petitioners overstate the scope of the court of appeals’ decision. The decision is clear that it vacated

the ACE Rule’s repeal of the CPP Rule because the

agency based that repeal on the legally erroneous conclusion that the statute unambiguously commanded

it. The court’s vacatur and remand accords with

longstanding precedent, which holds that when a

court determines that an agency mistakenly believed

its action was compelled by the statute, the proper

remedy is for the court to vacate and remand to the

agency for reconsideration.

Some of the Petitions posit a series of hypothetical

exercises of agency authority, many exaggerated and

without basis in actual policy or practice. None of

these reflect a current pronouncement by the agency

on the scope of its authority.

As the agency acknowledged when it repealed the

CPP Rule and adopted the ACE Rule, changes have

occurred within the electricity sector due to a powerful

set of forces, independent of federal regulation, that

caused the CPP Rule’s 2030 nationwide targets to be

achieved by the electricity sector more than a decade

3

in advance, even though the CPP Rule did not go into

effect. Those changes, which include reductions in the

cost of emission-reduction technologies and increasing

consumer preferences for clean power, have only accelerated since adoption of the ACE Rule.

The Court’s review at this juncture would risk a

ruling untethered to actual circumstances. The dramatic changes occurring within the electricity sector

will necessarily be considered by the agency when it

reexamines the scope of its authority under Section

7411(d). These changes will presumably factor into

the agency’s application of the statutory criteria, and

that application will provide a concrete context in

which the entire array of issues on which the Petitioners seek review may be considered, including the

scope of agency authority under Section 7411(d), cooperative federalism, the applicability of the major

questions doctrine, or the relationship between Section 7411(d) and other provisions of the statute. This

case presents a poor vehicle for review by this Court

without extant agency action applying those statutory

criteria.

REASONS FOR DENYING THE PETITION

I. THE DECISION BELOW IS NOT AN APPROPRIATE

VEHICLE FOR THIS COURT’S REVIEW.

Petitioners ask the Court to decide the outer

bounds of an agency’s authority in the abstract, based

on hypothetical actions they prognosticate the agency

might take in the future. Petitioner’s arguments are

unmoored from the practical realities of the electricity

4

sector and any concrete legal dispute. The Court’s intervention at this stage would be advisory and

premature.

A. There is no extant agency rule that

reflects the agency’s view of its statutory

authority, thus rendering this case an

inappropriate vehicle for review.

It is well-established that this Court “avoid[s]

premature adjudication, from entangling [itself] in abstract disagreements over administrative policies,

and also to protect the agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.” Abbott Labs. v. Gardner, 387

U.S. 136, 148–49 (1967). Indeed, even when final

agency action has been taken, the Court will refrain

from reviewing an agency rule if “further factual development would significantly advance [the Court’s]

ability to deal with the legal issues presented.” Nat’l

Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S.

803, 812 (2003).

These principles apply with particular force here.

Petitioners contend that this Court should grant review to resolve numerous issues related to two agency

rules—the Affordable Clean Energy (“ACE”) Rule and

the Clean Power Plant (“CPP”) Rule (see notes 1, 2,

supra), which reflected different interpretations of

agency authority under the Clean Air Act, specifically

42 U.S.C. § 7411(d). See 20-1530 Pet. 13–15, 25–34

(attacking CPP Rule’s interpretation of Clean Air Act

and D.C. Circuit’s vacatur of ACE Rule); 20-1531 Pet.

13–15, 23–33 (same); 20-1778 Pet. 2–4, 26–38 (same);

5

20-1780 Pet. 4–6, 19–27 (same). But neither Rule is

now in effect nor is expected to take effect in the future. Rather, the decision below remanded the matter

to the Environmental Protection Agency (“EPA”),

which has indicated that it is revisiting its authority

under Section 7411.

The agency did not petition for certiorari to defend

the ACE Rule that the court of appeals vacated. And

the agency obtained a stay of the mandate from the

court of appeals with respect to vacatur of the repeal

of the CPP Rule because the agency is revisiting its

authority under 42 U.S.C. § 7411(d) on a clean slate.

See Declaration of Joseph Goffman ¶¶ 12–16, Am.

Lung Ass’n v. EPA, No. 19-1140 (D.C. Cir. Feb. 12,

2021), Doc. No. 1885168. The agency explained that

it “strongly believes that no Section 7411(d) rule

should go into effect” until the agency “consider[s] the

question afresh” and the action is completed. The

agency explained that would “promote regulatory certainty” and “avoid the possibility of administrative

disruption.” See Respondent’s Motion for Partial Stay

of Issuance of the Mandate at 3–4, Am. Lung Ass’n v.

EPA, No. 19-1140 (D.C. Cir. Feb. 12, 2021), Doc. No.

1885168.

The Petitions and supporting briefs contend that a

“definitive answer from this Court is needed to ensure

the EPA’s next rule is legally correct.” See Br. of

Resp’t Nat’l Mining Ass’n at 10; accord id. at 1–2. But,

of course, this Court does not grant certiorari to issue

advisory opinions to guide agencies before the agency

exercises its authority.

6

How the agency applies the criteria supplied by 42

U.S.C. § 7411 is especially critical here in light of the

transformation occurring within the electricity sector.

Those developments are happening so rapidly that the

emission-reduction targets of the CPP Rule were

achieved more than a decade in advance, even though

that rule did not go into effect.3 This transformation

is being driven, not by federal regulation, but by advances in renewable generation technologies and

associated cost reductions, increasing consumer demand for low-carbon power, and other forces.4

Respondents here, Consolidated Edison, Inc., Exelon Corporation, National Grid USA, New York

Power Authority, Sacramento Municipal Utility District and a coalition that includes the Los Angeles

Department of Water and Power, Pacific Gas and

Electric Company, and Seattle City Light (“Power

Company Respondents”), are acutely aware of the fundamental shifts that are driving reductions of carbon

dioxide pollution throughout the electricity sector.

The Power Company Respondents have operations in

49 States and the District of Columbia, and collectively provide electricity service to more than 20

million homes and businesses, amounting to a total

3 See Office of Air Quality Planning and Standards, EPA, Regu-

latory Impact Analysis for the Repeal of the Clean Power Plan,

and the Emission Guidelines for Greenhouse Gas Emissions from

Existing Electric Utility Generating Units § 2.2.2 (June 2019).

4 See id. § 2.2 (“The anticipation of a lower emissions future in

the baseline is due to large-scale market trends that are multifaceted in nature. These include fundamental shifts in fuel supply, continued advances and cost declines for key power

generating technologies, market operation and policy evolution,

and end-use demand influences.”).

7

service population of more than 40 million. They also

own or operate more than 70,000 megawatts of electric generating capacity from an increasingly diverse

set of resources, including coal, oil, natural gas, nuclear, wind, solar, hydropower, geothermal and

biomass.

Even since promulgation of the ACE Rule, the pace

of reductions within the electricity sector has continued to accelerate. That has supported widespread

adoption of increasingly aggressive targets to reduce

or eliminate electricity-sector carbon dioxide emissions by mid-century.5 The technological and market

forces driving these reductions will undoubtedly bear

upon the agency’s identification of the “best system of

emission reduction” for purposes of 42 U.S.C. § 7411.

The agency should be afforded the opportunity to apply the statutory criteria in making this decision

5 See, e.g., Exec. Order No. 3 (Conn. Sept. 3, 2019). (requiring

state Department of Energy and Environmental Protection to

recommend strategies for achieving 100% zero carbon target for

electric sector by 2040); Pub. L. No. 2019, ch. 477 (Me. 2019)

(amending Me. Stat. tit. 35-A, § 3210 to require that, by January

1, 2030, 80% of retail electricity sales in state will come from renewable resources and, by January 1, 2050, 100% will come from

such resources); H.B. 2021, 81st Leg. Assemb., Reg. Sess. (Or.

2021) (requiring investor-owned utilities in state to reduce

greenhouse gas emissions associated with the electricity they sell

to 80% below baseline emissions levels by 2030, 90% below baseline emissions levels by 2035, and 100% below baseline emissions

levels by 2040); H.B. 1526, 2020 Reg. Sess. (Va. 2020) (requiring

Virginia electric utilities to produce their electricity from 100%

renewable sources by no later than 2050); Exec. Order No. 38

(Wis. Aug. 16, 2019) (creating a state Office of Sustainability and

Clean Energy and charging it, with other agencies and state utilities, to achieve a goal of ensuring all electricity consumed within

the state is 100% carbon-free by 2050).

8

based on the current state of technology and available

scientific expectations for future developments.

This Court’s assessment of agency authority in the

abstract, without an extant agency rule, and based on

speculation of what the agency might do in the future

as urged by Petitioners, would require review of issues

that may not be necessary to resolve after the current,

ongoing agency action is completed. The case therefore does not present an appropriate vehicle for this

Court’s review.

B. The stay entered years ago against the

CPP Rule does not provide grounds for

this Court’s review.

Petitioners make much of the fact that this Court

entered a stay of the CPP Rule a few years ago. See

20-1530 Pet. 2; 20-1351 Pet. 15–17; 20-1778 Pet. 2–4;

20-1780 Pet. 6, 11, 32–33. One Petition goes so far as

to ask “this Court to finish what it started when it

stayed the CPP.” 20-1778 Pet. 4. But the Court’s entry of a stay does not reflect a determination on the

merits. And the court of appeals earlier dismissed as

moot challenges to the CPP Rule—including the case

in which the Court entered a stay—because that Rule

was repealed. See 20-1778 Pet. 16 (“[T]he case

[against the CPP Rule] was ultimately dismissed as

moot based on EPA’s subsequent actions.”).

Petitioners claim that the agency will promulgate

a rule in the future that mirrors the CPP Rule. See

20-1530 Pet. 15, 22; 20-1531 Pet. 14, 20; 20-1778 Pet.

24–25; 20-1780 Pet. 33. Even if that were true, it

would not justify this Court’s review of the court of appeals’ decision here. The agency has not promulgated

9

such a rule, and what final agency action it will take

in the future is far from certain. Judicial review

should be based on review of agency authority in fact

exercised, and in the context of the administrative record supporting that agency action.

Some Petitioners concede that the CPP Rule “itself

is now a relic; its timeline and schedules are years out

of date, and it is unlikely that President Biden’s EPA

would revive it in identical form.” 20-1531 Pet. 18.

Speculation as to what an agency may do in the future

is not a basis for this Court’s review. See Nat’l Park

Hospitality Ass’n, 538 U.S. at 812 (“judicial resolution” of the lawfulness of a rule “should await a

concrete dispute about a particular” application of the

rule).

II. THE DECISION BELOW IS CORRECT AND DOES

NOT PRESENT THE BROAD ISSUES URGED BY

PETITIONERS.

In an effort to distract from the poor vehicle presented by this case, Petitioners misstate the holding

of the decision below.

The court of appeals clearly held that it vacated

the ACE Rule because that Rule “rests squarely on the

erroneous legal premise that the statutory text expressly foreclosed consideration of [emissionreduction] measures other than those that apply at

and to the individual source,” which the agency had

concluded required repeal of the CPP Rule. 20-1530

Pet. App. 162a. The Court thus directed that the

“ACE Rule must be vacated and remanded to the EPA

so that the Agency may consider the question afresh

10

in light of the ambiguity [it] see[s].” Id. (internal quotation marks omitted).

Petitioners suggest that, under the court of appeals’ decision, there are “no limits” to agency

authority under Section 7411(d). The decision indicated no such thing. The court ruled only that the

ACE Rule was incorrect in its conclusion that the statute required the “at the source” interpretation, and,

therefore mandated repeal of the CPP Rule. The decision did not rule on whether the CPP Rule had been

a lawful exercise of statutory authority, nor did the

court opine as to the boundaries of lawful exercise of

authority under Section 7411(d).

The decision below did not alter the longstanding

regulatory framework in which the EPA, States, and

regulated industries have worked together using flexible mechanisms under the Clean Air Act to reduce

power sector emissions. The decision did not mandate

a specific rule and would not cause the massive consequences Petitioners suggest.

A. The decision below correctly vacated and

remanded the ACE Rule because it was

based on the erroneous view that the Rule

was unambiguously mandated by statute.

The EPA promulgated the ACE Rule, which repealed and replaced the CPP Rule, on the basis that

the agency was “statutorily compelled” to do so. The

agency reasoned that the text of Section 7411(a) 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.” 20-1530 Pet. App. 37a (quoting ACE Rule, 84

11

Fed. Reg. at 32,524). It is that reasoning that the

court of appeals rejected. Id. at 54a.

The court of appeals correctly explained that

“[n]othing 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.”

The court was correct that there is no basis, in the

plain language, grammatically, contextually, or otherwise, that requires the ACE Rule. Id. at 54a–55a.

Section 7411(a)(1) defines “standard of performance” as a “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.” Section 7411(d) requires

States to submit plans that “establish[] standards of

performance for any existing source for any air pollutant.”

The ACE Rule adopted the erroneous view that

“application” in Section 7411(a)(1) must have an indirect object, and that object must be “any existing

source” under Section 7411(d), so that the best system

of emission reduction is unambiguously limited to

measures that are applied “at” and “to” an existing

source. But, as the court of appeals found, “application” is not a verb, but rather a noun and “[g]rammar

assigns direct or indirect objects only to verbs.” 201530 Pet. App. 60a–61a. Moreover, even the verb “apply” may be properly used with or without an explicit

12

indirect object, and if one were required, its absence

in Section 7411(a)(1) did not command that the agency

borrow one from Section 7411(d)(1) or the specific one

selected, when other “equally logical” candidates

could be found, such as the source category or the

emissions. Id. at 62a.

In addition, the ACE Rule erroneously substituted

two prepositions appearing in neither section (“at”

and “to”), for the one actually appearing in Section

7411(d)(1) (“for”), to conclude that the statute unambiguously forbade the agency from considering

anything other than systems that can be put into operation “at” or “to” an individual power plant.

As the court of appeals found, the statute does not

support this replacement of the preposition “for” an

existing source (which just means that the system is

“with regard or respect to” or “concerning” the source),

with the two different prepositions “at” and “to,”

which are more restrictive and connote direct physical

proximity or contact. 20-1530 Pet. App. 63a–65a.

These errors caused the agency to manufacture restrictions that are not supported by the plain text of

Section 7411, let alone unambiguously commanded.

Id. at 65a–66a.

Petitioners are wrong to suggest that the court of

appeals’ vacatur and remand effectively ratified the

previous interpretation that the agency took under

the CPP Rule. They also are wrong that the court of

appeals’ decision foreclosed the agency from adopting

an interpretation limiting the best system to

measures that can be installed at an individual

source. See 20-1530 Pet. 2–3; 20-1531 Pet. 2, 13; 20-

13

1780 Pet. 26. In fact, the court of appeals did not endorse any particular statutory interpretation.

The decision below follows the routine practice of

vacating and remanding an agency action when the

agency wrongly believed its action was compelled by

statute. See, e.g., Peter Pan Bus Lines, Inc. v. FMCSA,

471 F.3d 1350, 1354–55 (D.C. Cir. 2006) (collecting

cases); Prill v. NLRB, 755 F.2d 941, 943 (D.C. Cir.

1985) (holding that agency’s determination that employee conduct was unprotected by the statute was

based on erroneous view that statutory interpretation

was mandated by the statute, and remanding to

agency to reconsider its interpretation without the

court adopting its own statutory interpretation). It is

standard practice for the court to vacate and remand

when an agency decision is based on the erroneous

view that a statute unambiguously requires a certain

agency action. See, e.g., Prime Time Int’l Co. v.

Vislack, 599 F.3d 678, 683 (D.C. Cir. 2010); Labor,

Mine Safety & Health Admin. v. Nat’l Cement Co. of

Cal., 494 F.3d 1066, 1077 (D.C. Cir. 2007); City of L.A.

Dep’t of Airports v. Dep’t of Transp., 103 F.3d 1027,

1032–39 (D.C. Cir. 1997).

The court of appeals’ decision does not require the

agency to adopt on remand any particular interpretation of the statute, nor does it prevent the agency from

taking the same action if it provides a valid rationale

for that interpretation that is not based on the erroneous view of a statutory mandate. See Negusie v.

Holder, 555 U.S. 511, 522–23 (2009) (agency’s action

based on mistaken interpretation that statute mandated disregard of a defense of compulsion required

remand for agency to reconsider interpretation and

14

“[w]hether the statute permits such an interpretation

based on a different course of reasoning must be determined in the first instance by the agency.”).

Petitioners also are wrong in claiming that the decision below holds that there are “no limits” under

Section 7411(d). Petitioners take the phrase out of

context. See 20-1530 Pet. 16; 20-1531 Pet. 16–18; 201778 Pet. 1, 4, 16–17; 20-1780 Pet. 14. In its summary

of various provisions in Section 7411, the court of appeals observed that “Congress imposed no limits on

the type of measures the EPA may consider beyond

three additional criteria: cost, any nonair quality

health and environmental impacts, and energy requirements.”

20-1530 Pet. App. 56a (emphasis

added). The court of appeals did not conclude that

there are no limits under Section 7411, but merely observed that Congress did not specify any limits on

what could be considered beyond these three enumerated criteria. As the court of appeals observed

elsewhere, those criteria, along with the requirement

that the system must be adequately demonstrated,

“significantly rein[] in the EPA’s judgment.” Id. at

90a. Petitioners’ repeated use of the phrase “no limits” and selective quotation is an incorrect

characterization of the court of appeals’ holding and

provides no basis for this Court’s review.

B. The decision below does not present the

broad range of other issues urged by

Petitioners.

The effort by the various Petitioners to tee up a list

of unrelated, broader legal issues in an attempt to

identify some basis for review should be rejected.

15

1. The broad concerns raised by Petitioners about

the major questions doctrine are not implicated by the

court of appeals’ decision that the statute does not unambiguously require the interpretation adopted by

the ACE Rule. See 20-1530 Pet. 17, 21; 20-1531. Pet.

3, 30–33; 20-1531 Pet. 28–32; 20-1778 Pet. 33. The

major questions doctrine counsels that in “extraordinary cases,” a court should look for a clear statement

before concluding that Congress delegated to an

agency a “decision of deep economic and political significance,” particularly in an area where the agency

has “no expertise.” See King v. Burwell, 576 U.S. 473,

486 (2015); Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). In such

cases, “based on [a statute’s] overall regulatory

scheme” and “subsequent legislation,” a court may

conclude “that Congress has directly spoken to the

question at issue and precluded the [agency] from regulating” in that area. Brown & Williamson Tobacco

Corp., 529 U.S. at 160–61.

This is not such a case. The major questions doctrine is not implicated here, where the agency is

expressly authorized by Congress to implement a statute in a particular area, and the only question is how

it answers a particular question assigned to it by Congress: What is the “best system of emission reduction”

for a given source? See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (holding that

Section 7411 authorizes EPA to decide whether and

how to regulate carbon dioxide emissions from power

plants). There is no question that EPA is charged

with implementing 42 U.S.C. § 7411. The statute is

explicit that EPA “shall prescribe regulations” for

16

States to establish standards of performance for existing sources of air pollutants. 42 U.S.C. § 7411(d)(1).

It also expressly confers upon the EPA the duty to determine the “best system of emission reduction” that

is “adequately demonstrated,” taking into account

enumerated criteria. 42 U.S.C. § 7411(a)(1).

The agency does not “claim[] to discover in a longextant statute an unheralded power to regulate a significant portion of the American economy.” Cf. Util.

Air Regul. Grp. v. EPA, 573 U.S. 302, 324, 333–34

(2014) (holding that EPA could not interpret statutory

authorization to regulate motor-vehicle greenhousegas standards to trigger stationary-source permitting

requirements for thousands of smaller-emitting

sources the agency acknowledged Congress did not intend to be regulated). First, the ACE Rule that the

decision below vacated specifically adopted a statutory interpretation that narrowed the EPA’s

authority. Second, power plants that would be regulated by the agency under Section 7411(d) have long

been regulated for their emissions under the Clean

Air Act and Section 7411. Third, the agency’s interpretations had heretofore, across political parties,

consistently concluded that it has authority to regulate the establishment of standards of performance

under Section 7411(d) that could be met by means

other than installation of control technology “at” and

“to” each individual source. See 20-1530 Pet. App.

73a–77a. There is no sudden transformation of authority here.

2. One Petitioner argues that the Court should

grant review to address the reach of a narrow exception to Section 7411(d)(1) for air pollutants regulated

17

under Section 7412. See 20-1778 Pet. 26–38. But the

parties do not dispute that the statutory exception has

always applied to exclude hazardous air pollutants

regulated under Section 7412 from regulation under

Section 7411.

Petitioner’s argument arises, instead, from a 1990

amendment that created a new framework for regulation of hazardous air pollutants under Section 7412.

The Senate and House of Representatives each passed

their own conforming amendments to Section 7411 to

account for this modification. Both versions ended up

being enacted into law but only one, the House version, was codified in the U.S. Code. Petitioner claims

that this latter version extends beyond hazardous air

pollutants regulated by Section 7412 to any source

that emits one of those pollutants, effectively allowing

the exception to swallow Section 7411(d) altogether.

The court of appeals analyzed the provisions and

acknowledged that, although the Senate “took the

most direct textual path to updating Section 7411(d)’s

cross-reference” and the House version was “less efficient,” neither version created the expansive

exception that Petitioner claims. See 20-1530 Pet.

App. 124a–146a. The court correctly rejected Petitioner’s argument based on the text of both versions,

and the context in which they were passed. It correctly declined to read those versions—both designed

to update a cross-reference and respectively labeled a

“[c]onforming [a]mendment” and “[m]iscellaneous

[g]uidance”—as working a major substantive change

in the law. Id. at 129a–132a. The court also declined

to give any weight to the fact that the House Amendment alone was codified by the Office of Law Revision

18

Counsel because that office “has no license … to

change the substantive meaning of enacted law or

throw away an entire statutory provision,” which “is

why the Public Law prevails over the United States

Code in case of conflict.” Id. at 139a.

The court of appeals noted that, at the same time

Congress amended Section 7411(d), it added a savings

clause to Section 7412, which provides that no emission standard promulgated under the latter section

“shall be interpreted, construed, or applied to diminish or replace *** applicable requirements established

pursuant to section [7411].” 20-1530 Pet. App. 133a–

134a (brackets in original). The court held that this

simultaneously enacted savings clause affirms Section 7411(d)’s complementary role in the statutory

scheme and does not allow interpretation of the crossreference to render Section 7411(d) meaningless. See

id. at 133a. Based on this analysis, the court of appeals correctly concluded that “the better and quite

natural reading of all the relevant enacted statutory

text, structure, context, purpose, and history is one

that harmonizes the House and Senate Amendments”—and thereby preserves Section 7411(d)’s gapfilling role—rather than one that would assume “one

chamber of Congress smuggled dramatic and unlikely

changes to the Agency’s regulatory authority in this

Act through miscellaneous ‘guidance.’” See id. at

141a–143a.6

6 Tellingly, the Petitioner that asks the Court to grant review of

this question is simultaneously challenging the agency’s authority to regulate hazardous air pollutants from power plants under

19

3. Another Petitioner argues that the decision below is contrary to Supreme Court and D.C. Circuit

opinions concluding that various agency rules were invalid because they required States to adopt particular

standards in violation of cooperative federalism requirements under various statutes. 20-1780 Pet. 19–

27. But the court of appeals’ decision “never mentions

those opinions” because that issue, and the CPP Rule

through which the Petitioner raises that issue, were

outside the scope of the court of appeals’ review of the

ACE Rule, which did not implicate those issues. See

20-1780 Pet. 27 n.2.

4. The decision also does not merit review because

it does not, as one amicus attempts to claim, expand

Massachusetts v. EPA, 549 U.S. 497 (2007). That case

interpreted a different statutory provision. See Br. of

Amicus Curiae Commonwealth of Kentucky at 9–12.

The court of appeals vacated and remanded the ACE

Rule based on the text of Section 7411 itself. 20-1530

Pet. App. 45a–83a. The court of appeals invoked Massachusetts v. EPA only in addressing the major

questions doctrine to explain that the Court has

“ruled specifically that greenhouse gases are ‘air pollutants’ covered by the Clean Air Act,” but noted that

“[m]ore 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

Section 7412. See Petition for Review, Statement of Issues, Westmoreland Mining Holdings LLC v. EPA, No. 20-1160 (D.C. Cir.

May 22, 2020, Aug. 21, 2020), Doc. Nos. 1844031, 1857810 (Petitioner arguing that agency must rescind its regulation of

hazardous air pollutants from power plants based upon agency’s

2020 finding that such regulation is not appropriate and necessary).

20

7411.” Id. at 85a (citing Am. Elec. Power Co., 564 U.S.

at 426–47).

C. The decision below maintains the

longstanding regulatory environment in

which the EPA, States, and the regulated

industry use flexible compliance mechanisms to reduce power sector emissions

under the Clean Air Act.

The decision below is not a sea change. It is not “a

virtual call to arms, empowering the EPA to circumvent Congress and ‘solve’ climate change on a

systematic basis.” See 20-1531 Pet. 18. The holding

establishes no new agency powers.

The ACE Rule that the decision vacated would

have been a sea change. It would have eliminated, as

per se unlawful, certain longstanding, fundamental

means of reducing electricity-sector emissions. Under

the ACE Rule, the agency would have been prohibited

from considering the actual strategies applied by

sources to substantially and cost-effectively reduce

this sector’s emissions. The ACE Rule would also

have precluded emissions trading and other flexible

compliance mechanisms that prior administrations,

across political parties, found to be permissible under

the Clean Air Act. Thus, the decision below preserves

agency consideration of, but does not require, the primary means by which the electricity sector has

reduced (and plans to continue to reduce) emissions

from affected fossil fuel-fired generating units.

The electricity sector, including Respondents here,

has long relied upon shifting of power generation from

21

one plant to another in order to reduce emissions. Unlike other source categories regulated under Section

7411, power plants are unique in that they produce a

fungible product in synchrony with one another across

the interconnected power grid. Electric utilities and

grid operators shift generation among plants as their

fundamental strategy for ensuring delivery of a reliable source of power at least cost to consumers, taking

into account constraints like restrictions on transmission and emissions. These shifts are a natural

consequence of both the physics and economics that

dictate how the power grid operates. The court of appeals held that the agency had misread the statute as

constraining its authority to consider this strategy in

its selection of the best system. 20-1530 Pet. App.

65a–66a. But the decision does not require that the

agency select generation shifting as the best system

on remand.

The court of appeals rejected the ACE Rule’s exclusion of averaging and trading because the agency had

erroneously interpreted the statute to allow only

measures that can be taken “at” an individual plant.

20-1530 Pet. App. 80a. The court of appeals did not

hold that averaging and trading must be allowed as a

means of compliance, only that the agency erred in declaring them to be categorically barred by the statute.

The decision below maintains traditional tools that

have long been relied upon by the agency and States

to reduce emissions under the Clean Air Act and that

the electricity sector broadly favors as more economically efficient than prescriptive mandates at each

individual plant.

22

D. The decision below will not result in the

massive consequences claimed by Petitioners.

Petitioners suggest that the “consequences of the

decision below are massive—for the electricity sector

and the rest of the economy alike.” See 20-1530 Pet.

3. They claim that EPA will become the regulator of

everything from commandeering greenhouse-gas

emitting houses to imposing a carbon tax on any

building that emits greenhouse gases. See 20-1530

Pet. 13–19; 20-1531 Pet. 13–14. And they claim that

EPA could override every determination made by

States by setting rigid guidelines that mandate outcomes. 20-1780 Pet. 50. These hypotheticals are not

based on any agency action or policy before the Court.

Nor are they mandated by the court of appeals’ narrow

decision.

Petitioners lament the changing rules and uncertainty in the industry. See, e.g., 20-1531 Pet. 2, 15, 22

(“every industry linked to global warming (i.e., all of

them) will be left in limbo”); 20-1778 Pet. 1 (“industry

has been whipsawed and frustrated in making the

long-term decisions and investments necessary to

meet the Nation’s energy needs”). But these concerns

are not a result of the decision below. These concerns

are properly brought in the first instance to the

agency that has announced it is considering a new

rule on a clean slate. These concerns also do not reflect the experience of all members of industry. As

Respondents have indicated, see supra Section II.C,

many power companies have and will continue to reduce emissions in response to forces other than federal

regulation under Section 7411(d).

23

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

Kevin Poloncarz

COVINGTON & BURLING LLP

415 Mission Street,

Suite 5400

San Francisco, CA 94105

(415) 591-6000

kpoloncarz@cov.com

August 5, 2021

Beth S. Brinkmann

Counsel of Record

Eric Chung

Laura Dolbow

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

Counsel for Respondents