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.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

State of NORTH DAKOTA,

v.

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR STATES AND MUNICIPALITIES IN OPPOSITION

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

STEVEN C. WU

Deputy Solicitor General

MICHAEL J. MYERS

Senior Counsel

MATTHEW W. GRIECO

Assistant Solicitor General

28 Liberty Street

New York, New York 10005

(212) 416-8020

barbara.underwood@ag.ny.gov

*Counsel of Record

(Additional counsel listed on signature pages.)

i

QUESTIONS PRESENTED

Section 111 of the Clean Air Act (42 U.S.C. § 7411)

provides that the Environmental Protection Agency

(EPA) shall select the “best system of emission

reduction” that has been “adequately demonstrated”

for categories of stationary sources such as power

plants, after taking into account several enumerated

criteria. With respect to existing sources, EPA issues

guidelines reflecting “the degree of emission limitation

achievable through the application of the best system

of emission reduction,” and the States use EPA’s

guidelines to develop state plans. The questions

presented are:

1. Whether a now-defunct EPA rulemaking erred

in concluding that, in determining the “best system of

emission reduction,” the agency is forbidden from

considering any measures besides those that the

agency judged could apply “at and to” an individual

source—including measures that have been widely

adopted and proven to significantly reduce emissions?

2. Whether EPA is prohibited from regulating

emissions of dangerous pollutants from power plants

under Section 111(d) if it already regulates other

pollutants from those sources under Section 112 (42

U.S.C. § 7412), the Act’s hazardous air pollutant

program?

ii

TABLE OF CONTENTS

Page

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

Introduction .................................................................... 1

Statement ....................................................................... 3

Reasons to Deny the Petitions....................................... 9

I. Certiorari Is Unwarranted Because EPA Is

Reconsidering Its Approach to Regulating

CO2 Emissions from Power Plants and

Petitioners Face No Present Obligations. ........... 9

A. EPA’s Ongoing Rulemaking Process

Makes This Case an Exceptionally Poor

Vehicle for Reviewing the Questions

Presented. ........................................................ 9

B. None of Petitioners’ Arguments Justify

Immediate Review. ....................................... 12

II. Certiorari Is Unwarranted Because the

Decision Below Was Correct. ............................. 15

A. The Court of Appeals Correctly Rejected

the ACE Rule’s Reading of an Atextual

Restriction into Section 111. ........................ 15

B. The Statutory Dispute Here Does Not

Implicate the Major-Questions Doctrine. .... 22

C. Westmoreland’s Argument Based on

Section 112 Does Not Merit This Court’s

Review............................................................ 25

Conclusion..................................................................... 28

iii

Cases

TABLE OF AUTHORITIES

Page(s)

Alaska Department of Environmental

Conservation v. EPA, 540 U.S. 461 (2004) .......... 22

American Elec. Power Co. v. Connecticut, 564

U.S. 410 (2011) ............................................. passim

Camp v. Pitts, 411 U.S. 138 (1973) ........................... 12

Carney v. Adams, 141 S. Ct. 493 (2020) ................... 10

FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) ..................................................... 23

Massachusetts v. EPA, 549 U.S. 497 (2007) ............. 23

New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) .... 17

New York v. FERC, 535 U.S. 1 (2002) ........................ 5

TransUnion LLC v. Ramirez, 141 S. Ct. 2190

(2021) ............................................................... 10-11

Utility Air Regulatory Grp. v. EPA, 573 U.S. 302

(2014) ............................................................... 22,23

Whitman v. American Trucking Ass’ns, 531 U.S.

457 (2001) ............................................................. 27

Laws

Clean Air Act Amendments of 1990, Pub. L.

No. 101-549, 104 Stat. 2399 ............................ 26,27

42 U.S.C.

§ 7411 ......................................................... 3,4,19,21

§ 7412 .......................................................... 25,26,27

§ 7413 .................................................................... 22

§ 7477 .................................................................... 22

§ 7479 .................................................................... 22

§ 7491 .................................................................... 17

§ 7651f................................................................... 17

iv

Regulations

Page(s)

40 C.F.R. § 60.24a...................................................... 21

Endangerment and Cause or Contribute Findings

for Greenhouse Gases, 74 Fed. Reg. 66,496

(Dec. 15, 2009) ........................................................ 4

Standards of Performance for Greenhouse Gas

Emissions from New, Modified, and

Reconstructed Stationary Sources, 80 Fed.

Reg. 64,510 (Oct. 23, 2015) .................................... 4

Carbon Pollution Emission Guidelines for

Existing Stationary Sources: Electric Utility

Generating Units, 80 Fed. Reg. 64,662 (Oct.

23, 2015) .................................................... 4,5,20,25

Repeal of the Clean Power Plan, 84 Fed. Reg.

32,520 (July 8, 2019) .................................... passim

Miscellaneous Authorities

Environmental Protection Agency, Office of Air

Quality Planning & Standards, Health &

Envtl. Impact Div., 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), https://www.epa.gov/sites/production/

files/2019-06/documents/utilities_ria_final_

cpp_repeal_and_ace_2019-06.pdf .................. 6,7,24

Joseph Goffman, EPA Acting Asst. Adm’r,

Memorandum, Status of Affordable Clean

Energy Rule and Clean Power Plan (Feb. 12,

2021) .................................................................. 9-10

S. Rep. No. 91-1196 (1970) ........................................ 26

INTRODUCTION

Four related petitions seek this Court’s review of a

decision invalidating the Affordable Clean Energy

(ACE) Rule, a regulation that the Environmental

Protection Agency (EPA) has abandoned and that

imposes no obligations on any State or other entity.

Petitioners nonetheless ask this Court to grant their

petitions based on their speculation about what EPA

might include in a future rulemaking. This Court should

reject petitioners’ demands for an advisory opinion and

deny the petitions.

EPA issued the ACE Rule as an exercise of its

authority to regulate carbon dioxide (CO2) emissions

from existing power plants under Section 111(d) of the

Clean Air Act. In the ACE Rule, EPA interpreted

Section 111 to prohibit the agency from considering

emission reduction measures other than those that can

be installed at each individual source and implemented

without regard to other sources. That led EPA to reject

measures that are widely adopted in the power industry

and that have proven effective at reducing CO2 emissions from power plants. The U.S. Court of Appeals for

the District of Columbia Circuit rejected EPA’s view

that Section 111 compels that specific limitation on the

agency’s decision-making process and thus vacated and

remanded the rule. The court of appeals also rejected

an argument made by certain coal companies that EPA

was precluded from regulating CO2 emissions from

existing power plants under Section 111(d) because it

also regulates their emissions of hazardous air pollutants under Section 112.

EPA has announced that it is undertaking a new

rulemaking to regulate CO2 emissions from existing

power plants, which will supersede the abandoned rule.

2

But the agency has not yet proposed, let alone decided,

what measures it may adopt in this future rulemaking.

In the meantime, neither the ACE Rule nor a prior EPA

regulation, the Clean Power Plan, imposes any obligations regarding CO2 emissions from existing power

plants on States or other regulated entities.

Certiorari is not warranted under these circumstances. Petitioners’ arguments improperly rely on

speculation about what EPA might do in a future

regulation. But this Court does not offer preemptive

advice on ongoing agency rulemaking. Such premature

review would be particularly inappropriate here, when

this Court has already recognized that Congress delegated to EPA in the first instance the complex and factdriven responsibility to regulate power-plant CO2 emissions. See American Elec. Power Co. v. Connecticut, 564

U.S. 410, 428 (2011) (“AEP”). To the extent that petitioners believe themselves to be aggrieved when EPA

completes its new rulemaking, they may challenge the

new rule on applicable grounds at that time.

Certiorari is unwarranted for the additional reason

that the decision below is correct. With respect to EPA’s

selection of the best system of emission reduction under

Section 111, the narrow and discrete question addressed

by the court of appeals was whether the statute compelled EPA’s restrictive view of the emission-reducing

measures that it could consider. The court correctly

observed that EPA’s asserted at-the-source limitation

is not mentioned in the text of Section 111—in sharp

contrast to other limitations that Congress expressly

identified—and that the structure and history of Section

111 also did not compel EPA’s interpretation. The court

of appeals also rightly rejected petitioner Westmoreland Mining Holdings’ argument that EPA lacks

authority to regulate existing power plants under

3

Section 111(d) at all because power plants are already

regulated as to entirely different pollutants under

Section 112; that argument is flatly inconsistent with

Section 111(d)’s enacted text and its well-established

role of assuring that the Clean Air Act authorizes appropriate regulation of all dangerous pollutants, with no

gaps in coverage. This Court should accordingly deny

the petitions.

STATEMENT

1. Section 111 of the Act directs EPA to set

standards of performance for categories of new stationary sources that cause or significantly contribute to air

pollution that endangers public health or welfare. 42

U.S.C. § 7411(b)(1). The statute defines “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).

For existing sources in the categories for which

EPA has issued new-source standards, Section 111(d)

uses a cooperative-federalism approach to address

emissions of dangerous pollutants. EPA first selects

“the best system of emission reduction” that has been

“adequately demonstrated” for such sources, and issues

4

emission guidelines that reflect the degree of emission

reduction achievable based on application of the best

system. See id. § 7411(a)(1), (d)(1). “[I]n compliance with

those guidelines and subject to federal oversight, the

States then issue performance standards for stationary

sources within their jurisdiction.” AEP, 564 U.S. at 424.

2. In 2009, EPA found that greenhouse gases—

including CO2—endanger public health and welfare by

causing heat waves, smog, droughts, intensification of

storms, disease, and rising sea levels. Endangerment

and Cause or Contribute Findings for Greenhouse

Gases, 74 Fed. Reg. 66,496, 66,497, 66,524-25, 66,53233 (Dec. 15, 2009). In 2011, this Court held that EPA is

the “primary regulator of greenhouse gas emissions,”

and confirmed that Section 111(d) is a source of EPA

authority to regulate such emissions from existing

power plants. AEP, 564 U.S. at 428. “The critical point

is that Congress delegated to EPA the decision whether

and how to regulate carbon-dioxide emissions from

powerplants.” Id. at 426.

In 2015, EPA issued regulations to limit CO2 pollution from new fossil-fueled power plants under Section

111(b), Standards of Performance for Greenhouse Gas

Emissions from New, Modified, and Reconstructed

Stationary Sources, 80 Fed. Reg. 64,510 (Oct. 23, 2015),

and from existing power plants under Section 111(d)

(the Clean Power Plan), Carbon Pollution Emission

Guidelines for Existing Stationary Sources: Electric

Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23,

2015). In considering the best system of emission

reduction in the Clean Power Plan, EPA found that, as

a matter of practice in the power industry, “[g]eneration from one generating unit can be and routinely is

substituted for generation from another generating

unit” to satisfy electricity demand while meeting the

5

power grid’s many “technical, environmental, and other

constraints and managing its costs.” Id. at 64,725. This

well-established practice—sometimes referred to as

“generation shifting”—is the result of the interconnected nature of the electric grid, under which “any

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).

In the Clean Power Plan, EPA noted that power

companies themselves rely on generation shifting for

both environmental and economic reasons. 80 Fed. Reg.

at 64,725, 64,803-06. Past industry practice indicated

that, even if EPA were to identify a best system of emission reduction using bolt-on, at-the-source controls,

affected plants would still choose to meet their emission

limits by shifting generation to lower- or zero-emission

generation because doing so would be cheaper than

installing bolt-on technology. Id. at 64,784. Based on

those practices, EPA determined that, with respect to

CO2 emissions from power plants, the best system

would consist of three “building blocks”: (1) improving

heat rate (efficiency) at coal-fired plants; (2) substituting electricity generation from gas-fired plants for

generation from coal-fired plants; and (3) substituting

generation from zero-emitting sources for generation

from coal-fired and gas-fired plants. Id. at 64,666-67.

The Clean Power Plan never took effect. A group of

States and industry groups challenged the Clean Power

Plan, see West Virginia v. EPA, D.C. Cir. No. 15-1363,

and in February 2016, this Court stayed the Plan, U.S.

Sup. Ct. No. 15A773. After the 2017 change in

presidential administrations, the D.C. Circuit placed

the case into abeyance, and eventually dismissed the

case in 2019 when EPA replaced the Clean Power Plan

with the ACE Rule.

6

When it issued the final ACE Rule, EPA found

that—notwithstanding the stay of the Clean Power

Plan and lack of any nationally applicable CO2 rule for

power plants—industry and market trends across the

United States would cause the power-plant sector to

meet the emission-reduction goals the Clean Power

Plan had set for 2030 a decade earlier. EPA, Office of

Air Quality Planning & Standards, Health & Envtl.

Impact Div., 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 2-12 (June 2019).

4. In July 2019, EPA finalized the ACE Rule,

which consisted of two distinct actions relevant here.

Repeal of the Clean Power Plan, 84 Fed. Reg. 32,520

(July 8, 2019). First, EPA repealed the Clean Power

Plan based on a new interpretation of Section 111 as

unambiguously limiting the agency to selecting a best

system that relies solely on emission controls “applied

to and at the level of the individual source.” Id. at

32,529. EPA concluded that this interpretation

precluded the agency from relying on the electric grid’s

uniquely interconnected structure and the actions

States and power companies have already been taking

to prioritize cleaner generation over dirtier generation.

EPA conceded that such an approach “might be a

workable policy for achieving sector-wide carbonintensity reduction goals,” but insisted that “what is

not legal cannot be workable,” and that the Act left EPA

“no interpretive room” to adopt such an approach. Id.

at 32,532.

Second, EPA replaced the Clean Power Plan’s

emission guidelines with new guidelines that relied

solely on minor efficiency improvements to individual

coal-fired plants, and that rejected several other

7

comparatively more effective at-the-source measures,

including any controls for natural gas- or oil-fired

plants. Id. at 32,534. EPA projected that the ACE

Rule’s approach would result in less than one percent

reduction in CO2 emissions from the power sector in

2030. See Regulatory Impact Analysis, supra, at ES-6.

Moreover, the ACE Rule would have prohibited States

and sources from using measures such as emissions

trading or averaging even for purposes of complying

with the ACE Rule’s targets. 84 Fed. Reg. at 32,555-56.

5. A group of States, municipalities, organizations,

and power companies challenged both aspects of EPA’s

rulemaking. The D.C. Circuit granted the petitions for

review, vacated the ACE rule, and remanded to EPA

for further proceedings. (See Pet. App. 163a).

Regarding EPA’s repeal of the Clean Power Plan,

the court of appeals found that EPA had improperly

relied “on the erroneous legal premise that the

statutory text expressly foreclosed consideration of

measures other than those that apply at and to the

individual source.” (Pet. App. 162a). The court held that

Section 111(a)—the provision that empowers EPA to

set the best system—contains other express limitations

on EPA’s authority, such as the requirement that EPA

“study all ‘adequately demonstrated’ means of emission

reduction” (Pet. App. 56a), but that those “limitations

simply do not include the source-specific caveat” that

EPA sought to impose. (Pet. App. 54a).

The court rejected EPA’s attempt to limit Section

111(a) by inferring that an “indirect object” must be

found for that provision’s use of the word “application,”

and then finding that indirect object in a different

subsection, Section 111(d)(1). (Pet. App. 58a-63a.) The

8

court further held that, even accepting that unnecessary approach, EPA’s interpretation was erroneous

because it inexplicably substituted the prepositions “at”

and “to” where the statutory text actually reads “for

any existing source.” (Pet. App. 63a-65a.) “The word

Congress actually used—‘for’ the source—lacks the sitespecific connotation” of the prepositions “at” and “to.”

(Pet. App. 64a.)

In addition to finding no textual support for EPA’s

statutory interpretation, the court of appeals found

that the history, structure, and purpose of Section 111

refuted that interpretation. “Over the last half century,

no prior Administrator” had taken the position that

Section 111 forecloses “all but at-the-source means of

emission control.” (Pet. App. 73a.) For example, during

the George W. Bush Administration, EPA had adopted

a cap-and-trade program under Section 111(d) to reduce

mercury emissions from power plants. (Pet. App. 74a.)

The court of appeals also held that, because AEP

had already recognized that EPA could rely on Section

111 to regulate CO2 emissions from power plants, this

case did not implicate the major-questions doctrine,

which tests whether Congress has plausibly given an

agency authority to regulate a particular problem. (Pet.

App. 83a, 85a.) Moreover, the court found that, far from

being transformative, the Clean Power Plan had instead

been based on “generation-shifting measures that are

already widely in use by States and power plants.” (Pet.

App. 93a.)

Finally, the court of appeals rejected an argument,

raised by certain coal companies, that EPA lacks

authority to regulate CO2 emissions from existing

power plants under Section 111(d) because it regulates

emissions of entirely different, hazardous pollutants

9

from the same power plants under Section 112. (Pet.

App. 109a-146a.)

In February 2021, the court of appeals granted

EPA’s motion to withhold issuance of the mandate with

respect to the vacatur of the repeal of the Clean Power

Plan because the agency intends to reconsider afresh

its approach to CO2 emissions from existing power

plants. (See Order, D.C. Cir. doc. 1886386.) Under the

court of appeals’ order, the mandate will not issue

“until the EPA responds to the court’s remand in a new

rulemaking action.” (Id.) In a status update filed in May

2021, EPA informed the court of appeals that the agency

is engaged in “administrative proceedings to respond to

the Court’s remand in a new rulemaking action.”

(Status Report (May 24, 2021), D.C. Cir. doc. 1899829.)

REASONS TO DENY THE PETITIONS

I.

Certiorari Is Unwarranted Because EPA Is

Reconsidering Its Approach to Regulating

CO2 Emissions from Power Plants and

Petitioners Face No Present Obligations.

A. EPA’s Ongoing Rulemaking Process

Makes This Case an Exceptionally Poor

Vehicle for Reviewing the Questions

Presented.

After the court of appeals’ decision and the change

in presidential administrations, EPA made clear that it

is beginning afresh in its approach to regulating CO2

emissions from power plants. Moreover, as EPA

informed States in February 2021, neither the ACE

Rule nor the Clean Power Plan is in effect, and States

and power plants face no immediate regulatory burden

on CO2 emissions from existing plants. Joseph

10

Goffman, EPA Acting Asst. Adm’r, Memorandum,

Status of Affordable Clean Energy Rule and Clean

Power Plan (Feb. 12, 2021) (D.C. Cir. doc. 1885168, Ex.

A.) Certiorari is not warranted when the rule under

review imposes no obligations and will inevitably be

superseded, and when judicial review will be fully available for any party that believes it is aggrieved by EPA’s

future rule.

Petitioners nonetheless urge this Court to grant

certiorari “simply to get an answer” from this Court on

the questions presented. (W. Va. Pet. 21.) But petitioners are transparently concerned not with the ACE Rule

or any present regulatory obligations, but instead with

“the agency’s next rule” (W. Va. Pet. 16) or the (nonexistent) “Clean Power Plan 2.0” (N. Am. Coal Corp. (NACC)

Pet. 14). Indeed, the petitions are rife with speculation

about “EPA’s steps on remand and every regulation

under the statute to follow” (W. Va. Pet. 3), including

the unfounded claim that EPA might adopt policies

going beyond any prior Section 111(d) rule, such as “a

carbon tax on emissions from any building” or a mandate that “residential housing be shunted toward solar

power” (NACC Pet. 14).

Petitioners’ speculation about the approaches EPA

might adopt in a future rule governing CO2 emissions

from existing power plants—including whether and to

what degree such a rule will incorporate the “building

blocks” previously adopted by the Clean Power Plan—

do not create a live dispute for this Court to resolve.

Petitioners’ demand that this Court issue a legal ruling

that would preemptively handcuff speculative exercises

of agency authority improperly seeks an advisory

opinion of the type that this Court has steadfastly

refused to issue. See Carney v. Adams, 141 S. Ct. 493,

498 (2020); see also TransUnion LLC v. Ramirez, 141

11

S. Ct. 2190, 2203 (2021) (“Federal courts do not possess

a roving commission to publicly opine on every legal

question. Federal courts do not exercise general legal

oversight of the Legislative and Executive Branches, or

of private entities.”).

The rule against issuing such advisory opinions has

special force in this context, where Congress has tasked

EPA with the responsibility to consider regulations in

the first instance, and where the nature and focus of

any legal challenge will depend on the details of the

regulatory scheme that EPA actually adopts. As this

Court has previously recognized, the Clean Air Act has

a “prescribed order of decisionmaking—the first decider

under the Act is the expert administrative agency, the

second, federal judges.” AEP, 564 U.S. at 427. That

“prescribed order” reflects the fact that “[t]he appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a

vacuum,” id., and instead requires the marshaling of

“scientific, economic, and technological resources [that]

an agency can utilize” but that courts lack, id. at 428.

The administrative process also gives affected entities

like petitioners a full and fair opportunity to raise not

only their legal concerns but also their policy and practical concerns with any EPA proposal; EPA then has the

concomitant opportunity to resolve those concerns in a

way that might obviate subsequent litigation. Review

based on defunct rules would be especially inappropriate now given the rapid changes that have occurred

in both technology and consumers’ demand for lowemission power over just the last few years. (See Br. in

Opp’n for Power Co. Resps. 2-3, 6-8.)

This Court’s review, if necessary at all, would be

best reserved until after EPA has completed its new

rulemaking and has provided both reasoning and a full

12

administrative record upon which judicial review can

be based. See Camp v. Pitts, 411 U.S. 138, 142 (1973).

The completion of that process may very well resolve,

and at the very least will clarify, the otherwise speculative concerns that petitioners raise now. And the traditional approach of resolving legal questions only after

concrete agency action preserves judicial efficiency by

allowing parties to raise at the same time all of their

objections to the particular rule in question. By

contrast, granting certiorari now would force this Court

to opine on matters that may prove irrelevant. This

Court should decline review.

B. None of Petitioners’ Arguments Justify

Immediate Review.

1. Petitioners assert that this Court should grant

certiorari to limit the “ripple effects” of the decision

below, particularly in its interpretation of EPA’s authority under Section 111. (W. Va. Pet. 15.) But petitioners

repeatedly mischaracterize the breadth of the court of

appeals’ reasoning and overstate the impact that the

decision below will have on any ongoing rulemaking.

The court of appeals correctly understood the

Section 111 dispute at issue here to be “a relatively

discrete one.” (Pet. App. 50a-51a.) The parties generally

did not dispute that Section 111(d) authorizes EPA to

impose “limits on emissions of carbon dioxide from

domestic powerplants.” AEP, 564 U.S. at 425. Instead,

the primary question regarding Section 111 at issue in

this proceeding was the validity of EPA’s conclusion

that “the only permissible interpretation” of Section

111, 84 Fed. Reg. at 32,534, restricted EPA to determining the best system of emission reduction using

“measure[s] that can be applied ‘at and to’ any one

individual source.” (Pet. App. 49a.) And the court of

13

appeals vacated the ACE Rule based on its conclusion

that Section 111 did not compel that interpretation,

without addressing whether the ACE Rule’s approach

might be “a permissible reading of the statute as a

matter of agency discretion.” (Pet. App. 51a (emphasis

added).)

Petitioners are mistaken in claiming that the court

of appeals recognized “no limits” on EPA’s authority to

regulate greenhouse gas emissions from existing power

plants. (W. Va. Pet. 1.) The quoted language from the

decision, which petitioners repeatedly take out of

context, said that “Congress imposed no limits on the

types of measures that EPA may consider,” but specifically recognized several other restrictions that are

expressly enumerated in the text of Section 111(a).

(Pet. App. 56a (emphasis added).) For example: EPA

must “study all ‘adequately demonstrated’ means of

emission reduction”; EPA must “determine the ‘best’

system to reduce emissions”; and EPA must consider

“three additional criteria: cost, any nonair quality health

and environmental impacts, and energy requirements.”

(Pet. App. 56a.) Indeed, it was Congress’s express articulation of these specific limits on EPA’s authority that

led the court of appeals to reject EPA’s addition of the

atextual limitation to measures imposed “at and to the

source.” (Pet. App. at 54a.)

These limitations and the court of appeals’ careful

resolution of the discrete question before it also rebut

petitioners’ unsupported claims about the implications

of the decision below for EPA’s regulatory authority.

Contrary to petitioners’ claims, nothing in the decision

below or in the statutes interpreted by the court of

appeals “effectively mandates” a new CO2 rule that

“reenact[s] generation-shifting equivalent to or even

14

more aggressive than the [Clean Power Plan].” (Westmoreland Pet. 4.) The decision below recognized that

EPA may consider emission-reduction measures that

take into account the nature of the power grid (Pet.

App. 101a); it did not thereby authorize EPA to impose

any “system it deems ‘best,’” such as ordering power

plants “to subsidize carbon offsets” by “planting trees.”

(W. Va. Pet. 17). Similarly, given that both the ACE

Rule and the Clean Power Plan were limited to power

plants, there is no basis whatsoever for petitioners’

speculation that the court of appeals’ decision authorizes EPA to use Section 111 to regulate “nearly every

industry” (NACC Pet. 14) or to “unilaterally decarboniz[e] virtually any sector of the economy” (W. Va. Pet.

i). Petitioners’ speculation about the consequences of

the decision below fails to recognize the limitations

contained in Section 111 and identified by the decision.

2. Petitioners urge that certiorari is warranted now

because of certain burdens they suggest they will face

as a result of the decision below, but they are mistaken.

There is no dispute that the States and power industry

face no present regulatory burden from any powerplant CO2 rule under Section 111(d) because EPA has

made clear that neither the ACE Rule nor the Clean

Power Plan are in effect. And petitioners’ complaint

that they may have to invest resources in any future

notice-and-comment process (W. Va. Pet. 21) does not

identify any cognizable injury at all; it is simply part of

their statutory right under the Clean Air Act to have

any rulemaking consider their concerns—a right that

has been repeatedly invoked by parties on all sides of

this dispute. Petitioners’ complaints about regulatory

uncertainty (W. Va. Pet. 21; Westmoreland Pet. 1;

NACC Pet. 3) do not create a case or controversy: the

possibility that an agency may adopt a new regulatory

15

approach always exists, and has never been understood

to justify premature review.

Petitioners’ predictions about the harms of any

future rule (W. Va. Pet. 28; N. Dak. Pet. 15, 28-29;

Westmoreland Pet. 4; NACC Pet. 16-17) are also highly

questionable given the inaccuracy of their past predictions. For example, petitioners previously told this

Court that the Clean Power Plan’s emission requirements would radically transform the power plant

industry (see Application for Stay by W. Va. et al. in No.

15A773, at 3, 5); but in fact, even without the Clean

Power Plan, the industry surpassed the emission reduction goals of that Plan years earlier than projected. See

supra at 6. The speculative nature of petitioners’ predictions of harm underscores the importance of awaiting a

concrete dispute before considering granting certiorari.

II. Certiorari Is Unwarranted Because the

Decision Below Was Correct.

A. The Court of Appeals Correctly Rejected

the ACE Rule’s Reading of an Atextual

Restriction into Section 111.

1. The petitions for certiorari should be denied for

the additional reason that the court of appeals did not

err.

In the ACE Rule, EPA concluded that “the only

permissible interpretation of the scope of the EPA’s

authority,” 84 Fed. Reg. at 32,534, is that systems of

emission reduction under Section 111 must be those

that rely on “add-ons or retrofits confined to the level of

the individual fossil-fuel-fired power plant” (Pet. App.

52a). In analyzing the statutory text, the court of

16

appeals correctly identified several points that independently demonstrated that EPA’s at-the-source restriction is not present.

First, the court explained that the “plain language”

of Section 111(a)(1), “the root of the EPA’s authority to

determine the best system, announces its own limitations,” and “[t]hose limitations simply do not include

the source-specific caveat that the [ACE Rule] now

interposes.” (Pet. App. 54a.) Rather, under Section

111(a)(1), EPA is restricted to choosing among “alreadydemonstrated methods” of emissions reduction to

identify the “best system” for each “particular source

category and pollutant.” Furthermore, the agency must

take into consideration “three additional criteria: cost,

any nonair quality health and environmental impacts,

and energy requirements.” (Pet. App. 56a.) These

express limitations do not include any restriction “on

the types of measures the EPA may consider,” but

rather cabins EPA’s discretion in identifying the best

system from among candidate systems. (Pet. App 56a.)

Second, the court of appeals explained that nothing

in Section 111(d)(1)—which governs a State’s development of plans for individual sources—purported to

alter the interpretation of Section 111(a)(1). As the

court explained, “the two subsections address distinct

steps in the regulatory process, one focused on the

EPA’s role and the other focused on the States’.” (Pet.

App. 56a.) The court rightly rejected EPA’s ungrammatical view that the word “application” in Section

111(a)(1) is intelligible only if matched to an “indirect

object,” and that this indirect object must be found in a

different subsection, Section 111(d)(1). (Pet. App. 59a.)

The court correctly explained that Section 111(a)(1) is

“grammatically complete” as written, and that in any

event “[g]rammar assigns direct or indirect objects only

17

to verbs—not nouns.” (Pet. App. 61a). Even if an indirect

object were required, the court noted, “[e]qually logical

indirect objects include, for example, the entire category of stationary sources, or the air pollutant to be

limited.” (Pet. App. 62a).

Third, the court of appeals recognized that even if

Section 111(d)(1) had some effect on the plain meaning

of Section 111(a)(1), it would not have the effect claimed

by EPA, because EPA’s “entire theory hinges on

[EPA’s] unexplained replacement of the preposition

‘for’ in ‘standards of performance for any existing

source’ with the prepositions ‘at’ and ‘to.’” (Pet. App.

55a.) “[N]owhere in the ACE Rule does the EPA explain

this swap of one preposition for two meaningfully more

restrictive ones.” (Pet. App. 65a.) The ACE Rule added

words to the statute that Congress never enacted.

As the court of appeals further reasoned, Section

111’s structure and history also contradicted the ACE

Rule’s reading of the statute. The court noted that

although some other sections of the Act expressly refer

to technological or retrofit controls—42 U.S.C.

§§ 7651f(b)(2); 7491(b)(2)(A), (g)(2)—there is no such

restriction in Section 111(a) or (d). (Pet. App. 68a.) And

the court of appeals recognized that EPA has “previously embraced beyond-the-source measures of emission reduction” under presidential administrations of

both parties. (Pet. App. 75a; see id. 73a-75a.) For

example, during the George W. Bush administration,

EPA adopted a mercury cap-and-trade program for coalfired power plants under Section 111(d) and approved

state implementation plans that relied entirely on

trading without on-site controls. See New Jersey v.

EPA, 517 F.3d 574, 577-78 (D.C. Cir. 2008) (summarizing mercury rule); see also id. at 583-84 (vacating

18

mercury rule for failure to follow required procedures

under Section 112 of the Act).

2. Petitioners’ contrary arguments are unavailing.

As a threshold matter, petitioners misstate the actual

question considered by the court of appeals in reframing

the legal dispute here as whether Congress clearly

authorized EPA to exercise “expansive powers” (W. Va.

Pet. 25-29) or “[a]llow[ed] EPA to set its own scope of

authority” (Westmoreland Pet. 37). Instead, as

explained above (at 7), the court held only that EPA

was wrong in concluding that the statute compelled the

conclusion that Section 111 authorizes only at-thesource level measures. (Pet. App. 54a.)

With respect to the question actually decided below,

no petitioner defends the ACE Rule’s textual analysis,

which had attempted to link the noun “application” in

Section 111(a) to an “indirect object” in a different

subsection, Section 111(d). See supra at 6, 16-17.

Instead, petitioners offer a variety of other reasons to

defend the ACE Rule’s conclusion. Those reasons are

meritless.

First, petitioners err by arguing that, because

States set standards of performance “for any existing

source” under Section 111(d), EPA’s authority to select

the “best system of emission reduction” under Section

111(a) must be limited to those same source-specific

measures (W. Va. Pet. 30.; see also NACC Pet. 24,

N. Dak. Pet. 20.) This argument ignores the separate

roles set forth for EPA and the States in the plain text

of Section 111(a) and (d). As the ACE Rule itself recognized, Section 111 gives EPA and the States “distinct

roles, responsibilities, and flexibilities.” 84 Fed. Reg. at

32,521. It is EPA’s initial responsibility under Section

19

111(a)(1) to identify “the best system of emission reduction which . . . the Administrator determines has been

adequately demonstrated,” and to establish emission

guidelines reflecting the degree of emission limitation

achievable by application of the best system. 42 U.S.C.

§ 7411(a)(1). Then, under Section 111(d), a State develops a plan that “establishes standards of performance

for any existing source.” Id. § 7411(d)(1). A source must

meet the emissions targets set by its State, but in doing

so the source is not restricted to using the controls

initially identified by EPA. Id. § 7411(e).

The fact that a State sets a standard of

performance for each individual source at the end of

this process under Section 111(d) simply does not

preclude EPA, at the earlier stage of determining the

best system under Section 111(a), from taking into

account the interaction of sources in the interconnected

power grid or the practical experiences of sources. To

the contrary, Section 111(a) directs EPA to study

“adequately demonstrated” measures of emission

reduction—including those measures already in use in

the regulated field—and to select the “best” system for

the pollutant and source category at issue. EPA is not

barred from considering emission reduction measures

already being deployed, including those involving

multiple sources, to formulate guidelines for States to

then determine source-specific standards that meet

federal and state emissions targets. As the court of

appeals explained, “the two subsections address distinct

steps in the regulatory process,” and EPA was wrong to

conclude the statute compels the conclusion that

Section 111(d)’s “limitations pertain to each regulatory

actor.” (Pet. App.54a.)

Second, NACC cites Section 111(d)’s use of the

singular “any existing source” (NACC Pet. 24) to support

20

its view that the best system must be limited to at-thesource measures, but that usage applies only to the

States’ establishment of source-specific standards of

performance. By contrast, Section 111(a)(1), which

requires EPA to determine the best system, does not

contain any similar usage of the singular form, and

thus does not suggest that EPA’s antecedent determination of the best system is limited to measures that

can be applied at individual sources. Petitioners’ argument, like the defunct ACE Rule, “depends critically on

words that are not there” and “collapses two separate

functions and provisions of the Act.” (Pet. App. 66a.)

Third, petitioners’ insistence that a system of

emission reduction cannot exist on an “industry-wide”

level (W. Va. Pet. 30) is belied by the fact that, as the

court of appeals found (Pet. App. 93a), existing electricity generators have in practice chosen to rely on the

electric grid’s unique generation-shifting capability in

place of bolt-on, at-the-source systems to costeffectively achieve pollution reduction. 80 Fed. Reg. at

64,769. State regulators, too, have increasingly relied

on power plants’ ability to prioritize production from

less-polluting sources to achieve meaningful CO2 reductions. Id. at 64,803, 64,806.

Fourth, North Dakota attempts to locate an at-thesource requirement in Section 111(d)’s cooperative

federalism structure. (N. Dak. Pet. 19-27.) North

Dakota suggests that the Clean Power Plan would have

left sources with no meaningful choice but to engage in

generation-shifting to meet targets, and thus prevented

States from considering site-specific factors. (N. Dak.

Pet. 26.) But the court of appeals neither authorized

nor compelled the use of generation-shifting; it merely

held that EPA is not categorically excluded from

considering such practices as one component of the best

21

system of emissions reduction. Moreover, the decision

below advances rather than undermines federalism by

rejecting the ACE Rule’s artificial, atextual constraint

on the compliance measures that both States and

sources may rely upon to obtain emission reductions.

Indeed, it was the ACE Rule that undermined the

Clean Air Act’s cooperative-federalism framework by

relying on EPA’s erroneous interpretation of Section

111 to bar States from using well-established measures

such as emissions trading and averaging to comply with

federal emission reduction requirements. See 84 Fed.

Reg. at 32,555-56. By contrast, the court of appeals’

reasoning respects the States’ flexibility to adopt

measures that are already widely in use and that have

been demonstrated to be effective at reducing greenhouse-gas emissions.

North Dakota’s further contention that the decision

below would allow EPA to usurp the States’ role under

the Clean Air Act by “mandat[ing] a hard . . . standard

of performance across the entire generation sector”

(N. Dak. Pet. 26) simply misunderstands the court’s

reasoning. Contrary to North Dakota’s contention

(N. Dak. Pet. 20), the court of appeals’ decision does not

“prohibit States from taking into consideration sourcespecific factors in their Section 111(d) plans,” including

by considering a source’s “remaining useful life.” Under

the Act, a State may propose a variance after EPA has

set general emissions guidelines. 42 U.S.C. § 7411(d)(1).

For example, a State may demonstrate to EPA that a

source’s remaining useful life, or “[o]ther factors specific

to the facility,” such as feasibility or cost, justifies

“application of a less stringent standard or final

compliance time.” 40 C.F.R. § 60.24a(e)(3). Nothing in

the court of appeals’ decision would prevent a State—

in implementing a future Section 111(d) rule—from

22

continuing to propose such variances in their state

plans based on site-specific factors.

Finally, North Dakota’s reliance (Pet. 24) on Alaska

Department of Environmental Conservation v. EPA,

540 U.S. 461 (2004), is misplaced, because that case

involved the Clean Air Act’s Prevention of Significant

Deterioration (PSD) program, which establishes very

different roles for EPA and the States than does Section

111. Under the PSD program, a State, “on a case-bycase basis,” issues a preconstruction permit for “any

major emitting facility” that requires the facility to

apply the best available control technology to limit its

emissions. 42 U.S.C. § 7479(3). Thus, unlike Section

111, the PSD program does not require EPA to set

nationwide guidelines in advance, but empowers the

agency to, for example, issue a stop-construction order

if a State issues an unreasonable permit. Id.

§§ 7413(a)(5), 7477. Far from supporting North

Dakota’s claim of a conflict of authority, Alaska and the

PSD provisions illustrate that the Clean Air Act

contains multiple approaches to cooperative federalism: some in which EPA is the lead agency, and others

in which state authorities act in the first instance.

B. The Statutory Dispute Here Does Not

Implicate the Major-Questions Doctrine.

Contrary to petitioners’ arguments, the specific

statutory dispute here does not trigger the majorquestions doctrine. As a threshold matter, the court of

appeals’ vacatur of the ACE Rule will not result in “‘an

enormous and transformative expansion’” of the

agency’s authority (NACC Br. at 30 (quoting Utility Air

Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)

(“UARG”)) because, as EPA has made clear, neither the

ACE Rule nor the Clean Power Plan will go into effect.

23

Petitioners also overstate the holding of the court

of appeals in suggesting that the decision below will

necessarily lead EPA to exercise impermissibly expansive powers in a future rulemaking. This Court has

already determined that the Clean Air Act authorizes

EPA to regulate greenhouse-gas emissions, Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007), and that EPA

may regulate such emissions from existing power

plants under Section 111(d), AEP, 564 U.S. at 424. The

court of appeals here did not extend EPA’s authority

beyond the scope already recognized by this Court’s

prior decisions. Instead, as discussed, the court merely

rejected a particular restriction on regulatory authority

that EPA had erroneously found was compelled by the

statute. This case thus bears no resemblance to the

precedents cited by petitioners, in which the rule under

review sought to extend an agency’s reach to a type of

activity the agency had never before regulated, cf. FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132-33 (2000), or to previously unregulated sectors, cf.

UARG, 573 U.S. at 324.

Petitioners largely ignore AEP’s on-point holding

that in the Clean Air Act Congress “delegated to EPA

the decision whether and how to regulate carbondioxide emissions from powerplants,” AEP, 564 U.S. at

426, and that Section 111(d) is the “most relevant”

provision, id. at 424. Alone among petitioners,

Westmoreland acknowledges AEP’s holding that

Section 111 “‘speaks directly to emissions of carbon

dioxide’ from fossil-fuel-fired plants.” (Westmoreland

Pet. 37.) Because this Court has already recognized

that Congress authorized EPA to determine how to

regulate power-plant CO2 emissions, EPA will not

inevitably exceed its delegated powers in promulgating

such regulations, and any theoretical issue of whether

24

a particular agency approach raises a major question

must be reviewed, if at all, after promulgation of an

actual rule.

Petitioners’ arguments also ignore the many

constraints on Section 111 rulemaking that Congress

expressly included in the statute (see supra at 13), as

well as the Clean Air Act’s requirement that EPA

engage in reasoned rulemaking. West Virginia is simply

wrong when it says that the court of appeals “found

nothing in the statute” to restrict EPA’s authority.

(W. Va. Pet. 16-17). To the contrary, the court of appeals

rightly recognized that, among other requirements,

EPA’s determination of the best system of emission

reduction must draw from “adequately demonstrated”

measures, which here would include “methods of operation already adopted by and familiar to the power

sector.” (Pet. App. 33a-34a (citing 80 Fed. Reg. at

64,725, 64,727-28).) The court thus correctly concluded

that the “numerous substantial and explicit constraints

on EPA’s selection of a best system” preclude reliance

on the major-questions doctrine “to write additional,

extratextual, and inflexibly categorical limitations”

that Congress did not include. (Pet. App. 94a.)

Finally, as a practical matter, the specific measures

that petitioners seek to challenge in this Court as novel

are well-established, widely adopted, and proven

methods of emission reduction. Petitioners repeatedly

object to the now-defunct Clean Power Plan’s reliance

on “generation shifting” as a component of the plan.

(W. Va. Pet. 16, 33; N. Dak. Pet. 31-32, 35; NACC Pet.

23, 27; Westmoreland Pet. 20.) Yet, EPA found in the

ACE Rule that “there is likely to be no difference

between a world where the Clean Power Plan is implemented and one where it is not.” Regulatory Impact

Analysis, supra, at 2-1; see also id. at 2-5 (“[T]he cost

25

and benefit impacts of the CPP repeal are de

minimis.”). Furthermore, no petitioner disputes the

court of appeals’ finding that the prioritization of generation from some sources over others on the electric

grid is a method that has been widely adopted in the

power sector for both economic and environmental

reasons. (Pet. App. 33a-34a, 52a-53a, 93a.) Indeed,

shifting generation to sources that emit less CO2 is

often less burdensome to power-plant operators than

requiring individual sources to install bolt-on, at-thesource controls; for this reason, many power companies

supported EPA’s consideration of generation-shifting

as providing them more cost-effective and flexible

methods of achieving emission limitations. See 80 Fed.

Reg. at 64,727-29.

Moreover, invoking the major-questions doctrine

now, in the absence of a concrete rule and before EPA

can seek public and industry comment, would

improperly position this Court to function as the agency

in the first instance, rather than as a court of review.

See AEP, 564 U.S. at 428 (Clean Air Act requires that

EPA, not federal judges, “determine, in the first

instance,” what measures are reasonable).

C. Westmoreland’s Argument Based on

Section 112 Does Not Merit This

Court’s Review.

Westmoreland alone asks this Court to review

whether Section 111(d) allows EPA to regulate CO2

emissions from power plants if EPA already regulates

emissions of any hazardous air pollutant from power

plants under Section 112, 42 U.S.C. § 7412. (Westmoreland Pet. 26-28.) There is no reason for this Court to

review this argument, which is contrary to the Act’s

26

comprehensive application to all source emissions that

affect public health.

The United States’ brief in opposition fully explains

why the court of appeals was correct to hold that

Westmoreland’s argument conflicts with the text and

structure of Sections 111 and 112. Westmoreland’s

argument would arguably force EPA to choose between

either regulating hazardous air pollutants under

Section 112, or regulating other pollutants emitted by

the same sources under Section 111(d). Such a choice

would allow one or the other set of these dangerous

pollutants to be emitted without restriction, undermining the purposes of these mutually supporting regulatory regimes. For this reason, this interpretation has

been rejected by EPA under every presidential administration since the language in question was adopted. (See

Pet. App. 111a-113a, 143a-147a.)

Nothing in the broader statutory scheme suggests

that Congress wanted to put EPA to such a choice. To

the contrary, Congress created Section 111 to ensure

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). When Congress added a statutory list of

hazardous pollutants to Section 112 via the 1990

amendments, it preserved Section 111 as a gap-filling

provision, providing that it applies to all pollutants not

regulated under Section 112. See Clean Air Act Amendments of 1990, Pub. L. No. 101-549, sec. 301, § 112(b),

104 Stat. 2399, 2535-2537; id., sec. 302(a), § 111(d)(1),

104 Stat. at 2574.

Westmoreland’s contention—that Congress intentionally created a regulatory gap via the 1990 amendments to Section 112 (Westmoreland Pet. 31)—is

27

implausible. Nothing in Congress’s addition of regulatory protections against newly defined hazardous air

pollutants in 1990 indicated any intent to alter the

preexisting regulation of non-hazardous pollutants,

whether under Section 111 or any other Clean Air Act

provision. Pub. L. No. 101-549, § 301, 104 Stat. at 2531.

The 1990 amendments also did not change the fact that

EPA’s authority under Section 112 is pollutant-specific,

and that the corresponding amendments to Section

111(d) were technical, merely aligning that section to

refer to the reorganized Section 112. It is not credible

that Congress dissolved the Act’s longstanding comprehensive coverage of all pollutants through a technical

rephrasing of a cross-reference. See Whitman v.

American Trucking Ass’ns, 531 U.S. 457, 468 (2001)

(Congress does not “hide elephants in mouseholes.”).

Such a self-defeating policy would harm the public

interest and undermine the goals of the Clean Air Act.

28

CONCLUSION

The petitions for writs of certiorari should be

denied.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

STEVEN C. WU

Deputy Solicitor General

MICHAEL J. MYERS

Senior Counsel

MATTHEW W. GRIECO

Assistant Solicitor General

barbara.underwood@ag.ny.gov

August 2021

* Counsel of Record

(Counsel listing continues on next page.)

29

ROB BONTA

Attorney General

State of California

1300 I St.

Sacramento, CA 95814

AARON M. FREY

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333

PHIL WEISER

Attorney General

State of Colorado

136 State Capitol Bldg.

Denver, CO 80203

BRIAN E. FROSH

Attorney General

State of Maryland

200 St. Paul Pl., 20th Fl.

Baltimore, MD 21202

WILLIAM TONG

Attorney General

State of Connecticut

165 Capitol Ave.

Hartford, CT 06103

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

One Ashburton Pl.

Boston, MA 02108

KATHLEEN JENNINGS

Attorney General

State of Delaware

Department of Justice

820 N. French St.

Wilmington, DE 19801

DANA NESSEL

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48934

CLARE E. CONNORS

Attorney General

State of Hawai‘i

425 Queen St.

Honolulu, HI 96813

KEITH ELLISON

Attorney General

State of Minnesota

445 Minnesota St., Ste. 1400

Saint Paul, MN 55155

KWAME RAOUL

Attorney General

State of Illinois

100 W. Randolph St.

Chicago, IL 60601

AARON D. FORD

Attorney General

State of Nevada

Ste. 3900

555 E. Washington Ave.

Las Vegas, NV 89101

30

ANDREW J. BRUCK

Acting Attorney General

State of New Jersey

25 Market St., 8th Fl.

Trenton, NJ 08625

THOMAS J. DONOVAN, JR.

Attorney General

State of Vermont

109 State St.

Montpelier, VT 05609

HECTOR H. BALDERAS

Attorney General

State of New Mexico

408 Galisteo St.

Santa Fe, NM 87501

MARK R. HERRING

Attorney General

Commonwealth of Virginia

202 N. Ninth St.

Richmond, VA 23219

JOSHUA H. STEIN

Attorney General

State of North Carolina

Department of Justice

114 W. Edenton St.

Raleigh, NC 27603

ROBERT FERGUSON

Attorney General

State of Washington

800 Fifth Ave., Ste. 2000

Seattle, WA 98104

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

1162 Court St. N.E.

Salem, OR 97301

JOSHUA L. KAUL

Attorney General

State of Wisconsin

Department of Justice

P.O. Box 7857

Madison, WI 53703

JOSH SHAPIRO

KARL A. RACINE

Attorney General

Attorney General

Commonwealth of

District of Columbia

Pennsylvania

400 Sixth St., N.W.

Strawberry Square, 16th Fl. Washington, DC 20001

Harrisburg, PA 17120

PETER F. NERONHA

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

SANDRA LLANES

Interim City Attorney

City of Boulder

1777 Broadway

Boulder, CO 80302

31

CELIA MEZA

Corporation Counsel

City of Chicago

2 N. LaSalle St., Ste. 580

Chicago, IL 60602

GEORGIA PESTANA

Corporation Counsel

City of New York

100 Church St.

New York, NY 10007

KRISTIN M. BRONSON

DIANA P. CORTES

City Attorney

City Solicitor

City and County of Denver City of Philadelphia

201 W. Colfax Ave.

One Parkway Building

Denver, CO 80202

1515 Arch St., 16th Fl.

Philadelphia, PA 19102

MICHAEL N. FEUER

City Attorney

City of Los Angeles

200 N. Main St., 8th Fl.

Los Angeles, CA 90012

THOMAS F. PEPE

City Attorney

City of South Miami

1450 Madruga Ave., Ste. 311

Coral Gables, FL 33146