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

No. 20-1780

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------STATE OF NORTH DAKOTA

Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

---------------------------------♦--------------------------------REPLY BRIEF OF PETITIONER

STATE OF NORTH DAKOTA

---------------------------------♦--------------------------------WAYNE STENEHJEM

Attorney General

STATE OF NORTH DAKOTA

PAUL M. SEBY*

Special Assistant

Attorney General

MATTHEW SAGSVEEN

Solicitor General

MARGARET OLSON

Assistant Attorney General

NORTH DAKOTA OFFICE OF

ATTORNEY GENERAL

600 E. Boulevard Avenue

#125

Bismarck, ND 58505

Telephone: (701) 328-3640

Email: masagsve@nd.gov

maiolson@nd.gov

GREENBERG TRAURIG, LLP

1144 15th Street, Suite 3300

Denver, CO 80202

Telephone: (303) 572-6500

Facsimile: (303) 572-6540

Email: sebyp@gtlaw.com

*Counsel of Record

Counsel for Petitioner State of North Dakota

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

Reply Argument ...................................................

I.

II.

III.

1

The D.C. Circuit’s Decision Presents a Justiciable Issue on EPA’s Authority under the

Clean Air Act ..............................................

4

The D.C. Circuit’s Decision Implicates Issues

the Court has Recognized as Presenting a

Case and Controversy Meriting Certiorari

Review .......................................................

9

The D.C. Circuit’s Decision Implicates Issues of National Importance and the

Court Should Not Wait for the Conclusion

of EPA’s Contemplated Rulemaking to Address Those Important Issues ................... 11

Conclusion............................................................ 13

ii

TABLE OF AUTHORITIES

Page

CASES

American Lung Assoc. et al. v. EPA et al.,

19-1140 (D.C. Cir.) .....................................................6

Bowen v. Mich. Academy of Family Physicians,

476 U.S. 667 (1986) ...................................................5

Cohens v. Virginia,

19 U.S. 264 (1821) .....................................................6

FERC v. Elec. Power Supply Ass’n,

577 U.S. 260 (2016) ...................................................7

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................10

Marbury v. Madison,

5 U.S. 137 (1803) .......................................................3

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 10, 11

National Cable Telecom. Assn. v.

Brand X Internet Services,

545 U.S. 967 (2005) ............................................... 7, 8

Pharmaceutical Research and

Mfrs. of America v. Walsh,

538 U.S. 644 (2003) .................................................11

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ...................................................9

iii

TABLE OF AUTHORITIES – Continued

Page

United States National Bank v. Independent

Insurance Agents of America, Inc.,

508 U.S. 439 (1993) ............................................... 6, 7

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ...................................................4

STATUTES

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

42 U.S.C. § 7607 ........................................................ 5, 6

REGULATIONS

80 Fed. Reg. 64,662 (Oct. 23, 2015) .................... passim

84 Fed. Reg. 32,520 (July 8, 2019) ...................... passim

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REPLY ARGUMENT

The relief North Dakota seeks in this case is

(1) the reversal of the Court of Appeals’ decision below,

(2) the reinstatement of the U.S. Environmental Protection Agency’s (“EPA”) Clean Air Act (“CAA”) rule improvidently vacated by the decision below, and (3) the

affirmation of EPA’s repeal of an earlier CAA rule that

had been stayed by this Court. In seeking these specific

and well-established forms of relief in the context of

challenging agency rulemakings, North Dakota is not

asking this Court to issue an “advisory opinion.”

North Dakota is a major energy producing state.

North Dakota’s energy production comes from several

different types of “fossil fuels” (lignite coal, oil, and natural gas) as well as several types of “renewable energy”

(wind, solar, hydropower, and biofuels). North Dakota

has fundamental sovereign interests in regulating its

natural resources and their development and use including the exercise of the States’ specific authority

and discretion established by Congress in Section

111(d) of the CAA. 42 U.S.C. § 7411(d). Ever since EPA

promulgated the regulation entitled Carbon Pollution

Emission Guidelines for Existing Stationary Sources:

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

(Oct. 23, 2015) (the “Clean Power Plan” or “CPP”),

North Dakota has sought to protect its significant statutorily mandated role in CAA Section 111(d), including

seeking and obtaining a nationwide stay of the CPP

from this Court.

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Also North Dakota supported the Repeal of the

Clean Power Plan; Emissions Guidelines for Greenhouse Gas Emissions From Existing Electric Utility

Generating Units; Revisions to Emission Guidelines

Implementing Regulations, 84 Fed. Reg. 32,520 (July 8,

2019) (the “ACE Rule”), which both rescinded the CPP

and established a new rule recognizing the States’

statutorily mandated role under CAA Section 111(d),

including the responsibility to implement and enforce

standards of performance for existing sources of air

pollution, using the States’ expertise in applying

source-specific considerations and factors to controlling such emissions.

In response to North Dakota’s Petition for Certiorari (“Petition”) of the D.C. Circuit’s decision below

vacating the ACE Rule, the acting Solicitor General

(along with all other Respondents and amici) argue

that reviewing the D.C. Circuit’s decision prior to EPA

acting on that flawed decision would amount to an

“advisory opinion.” These arguments rely upon the

misconception that this Court does not have the jurisdiction or authority to reverse the D.C. Circuit’s

vacatur of the ACE Rule, essentially arguing that Petitioners are deprived of their right of judicial review

because the Respondents agree with the decision below. The relief sought by North Dakota, the reinstatement of the ACE Rule, is anything but advisory.

Further, Respondents advance the fiction that the D.C.

Circuit’s flawed decision vacating the ACE Rule and

granting EPA authority in conflict with the prior decisions of the Court does not harm North Dakota if and

3

until EPA acts on the broad license granted to it by the

D.C. Circuit’s decision. There is nothing credible to

those arguments, as the D.C. Circuit’s decision vacating the ACE Rule harms North Dakota’s sovereign

rights now.

Granting certiorari now to determine whether the

ACE Rule should be reinstated is justiciable; otherwise, if Respondents’ arguments were accepted, proponents of a vacated agency action could never seek

review in this Court. The D.C. Circuit’s decision effectively re-wrote the CAA, gifting EPA the authority

to promulgate standards of performance for existing

sources wholly divorced from Congress’ express direction in Section 111(d) that States be afforded the ability to apply standards of performance to existing

sources, at the source, with consideration of sourcespecific factors that the States are best situated to apply. The D.C. Circuit’s improvident vacatur of the ACE

Rule based on its re-writing of crucial provisions of the

CAA are justiciable issues for which the Court may

provide specific, not advisory, relief.

Granting North Dakota’s Petition now is therefore

wholly within the permissible authority of this Court

“to say what the law is.” Marbury v. Madison, 5 U.S.

137, 177 (1803). Recognizing the “unremarkable proposition that an agency may adopt policies to prioritize

its expenditures within the bounds established by Congress,” the Court should vacate the decision below and

reinstate the ACE Rule, and not standby while EPA

“embarks on this multiyear voyage of discovery” in

promulgating new rules based on the D.C. Circuit’s

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decision vacating the ACE Rule and granting EPA

massive new authority “without regard for the thresholds prescribed by Congress” in Section 111(d). Utility

Air Regulatory Group v. EPA, 573 U.S. 302, 327-328

(2014) (emphasis in original).

I.

The D.C. Circuit’s Decision Presents a Justiciable Issue on EPA’s Authority under the

Clean Air Act.

Contrary to the Solicitor General and her allied

Respondents’ arguments, the D.C. Circuit’s vacatur of

the ACE Rule presents justiciable issues for the

Court’s review. The D.C. Circuit vacated the ACE Rule

by expressly expanding the bounds of EPA’s authority

under Section 111(d) beyond what was authorized by

Congress, holding that Section 111(d) grants EPA

broad authority at the expense of the States’ statutorily proscribed authority and discretion. The D.C. Circuit’s decision misreads the plain text of Section 111(d)

and is contrary to the Court’s prior decisions setting

the bounds of the cooperative federalism required by

the CAA. See Petition, at 18-27. The D.C. Circuit’s decision also conflicts with the Court’s prior rulings on

the Major Question Doctrine and Clear Statement Rulings. Id. at 28-32. Because of those errors in statutory

interpretation and departure from the Court’s jurisprudence, the D.C. Circuit improperly vacated the ACE

Rule. It is precisely these holdings that North Dakota

contends are in error and is petitioning the Court to

review, not for speculative advisory purposes but to

expressly reverse the decision below and reinstate the

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ACE Rule. If the D.C. Circuit’s opinion is not reviewable, it is hard to imagine that any appellate court ruling on the bounds of an agency’s statutory authority is

reviewable on certiorari.

Section 111(d) embodies the fundamental cooperative federalism structure of the CAA by requiring

that regulations promulgated by the EPA targeting existing generation sources “shall permit the State in

applying a standard of performance to any particular

source under a plan submitted under this paragraph to

take into consideration, among other factors, the remaining useful life of the existing source to which such

standard applies.” 42 U.S.C. § 7411(d)(1) (emphasis

added). The D.C. Circuit’s opinion excises North Dakota’s (and all other States’) statutorily mandated role

in regulating existing sources in a cooperative federalism framework alongside EPA, and cannot be squared

with that statutory mandate in Section 111(d).

None of the Respondents claimed in front of the

D.C. Circuit that EPA’s interpretation of its authority

under Section 111(d) in the ACE Rule presented nonjusticiable issues that would result in an advisory

opinion. Neither did Respondents claim that EPA’s

actions in promulgating the ACE Rule were somehow

immune from judicial review. See Bowen v. Mich.

Academy of Family Physicians, 476 U.S. 667, 672

(1986) (holding that judicial review of an agency’s regulatory authority is presumed valid absent Congress

specifically legislating to the contrary). Those same Respondents specifically challenged the ACE Rule under

the judicial review provision of the CAA, 42 U.S.C.

6

§ 7607, that they now claim is unavailable to Petitioners. See, e.g., American Lung Assoc. et al. v. EPA et al.,

19-1140 (D.C. Cir.), Petition for Review (Document No.

1796317).1 To claim now that the Court’s review of a

decision vacating the ACE Rule would be advisory, in

a continuation of the same proceedings below where

the Respondents exercised their right of judicial review to challenge the ACE Rule, is disingenuous.

That EPA has since indicated it will pursue a new

rulemaking to replace both the ACE Rule and the CPP

does not render the decision below unreviewable. See

Brief for the Federal Respondents in Opposition, at 16;

Brief for State and Municipalities in Opposition, at 1.

The Executive Branch’s announcements cannot deprive this Court of its jurisdiction or authority or deprive Petitioner of its rights of judicial review of the

D.C. Circuit’s opinion below. “The judicial Power extends to cases arising under . . . the Laws of the United

States, Art. III, § 2, cl. 1, and a court properly asked to

construe a law has the constitutional power to determine whether the law exists.” United States National

Bank v. Independent Insurance Agents of America, Inc.,

508 U.S. 439, 446 (1993) (quoting Cohens v. Virginia, 19

U.S. 264, 406 (1821) (internal quotations omitted).

Here, North Dakota has challenged the D.C. Circuit’s ruling vacating the ACE Rule because it bestowed authority on EPA not granted to it by Congress

1

With the exception of Federal Respondents, who defended

EPA’s authority to promulgate the ACE Rule in front of the D.C.

Circuit, but who also did not challenge the D.C. Circuit’s ability

to hear the case.

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and “valuable legal rights . . . [will] be directly affected

to a specific and substantial degree by a decision on

whether” the ACE Rule “was proper and lawful.” Id.

(internal quotations omitted). Respondents cannot be

permitted, “by agreeing on the legal issue presented”

(i.e., agreeing that the ACE Rule no longer applies to

Petitioners because the D.C. Circuit’s opinion vacated

the rule), to now characterize North Dakota’s Petition

as “hypothetical.” Id. at 447. Instead, this case, as in

United States National Bank, is a controversy which

“depend[s] on the validity of [the ACE Rule], that

would be a case arising under the constitution, to

which the judicial power of the United States” extends.

Id. at 446-447. There is nothing “hypothetical” about

the decision below or the relief sought by North Dakota: the D.C. Circuit erroneously vacated the ACE

Rule dealing with a subject matter that all parties

agree is of great national significance and North Dakota is petitioning the Court to reinstate it.

That the opinion below vacated the ACE Rule does

not change this conclusion. It is fully within the Court’s

authority to vacate the D.C. Circuit’s decision and reinstate the ACE Rule. For example, in FERC v. Elec.

Power Supply Ass’n, the D.C. Circuit vacated a FERC

rule by holding that FERC “lacked authority” to issue

the rule. 577 U.S. 260, 275 (2016). This Court granted

certiorari to “decide whether [FERC] ha[d] statutory

authority” to issue the rule, and ultimately held that

FERC did have that authority and vacated the D.C.

Circuit’s decision. Id. at 276; see also National Cable

Telecom. Assn. v. Brand X Internet Services, 545 U.S.

8

967, 980 (2005) (This Court granting certiorari to review a Ninth Circuit decision vacating portions of an

FCC rulemaking in order “to settle the important questions of federal law that these cases present.”)

If the Court reinstates the ACE Rule, EPA may

choose to revise or replace that rule, in accordance with

the substantive and procedural requirements of the

CAA, as it has indicated it plans to do. It may also

choose to change its mind. Whatever EPA’s future plans

are, they do not deprive the Court of its jurisdiction to

review the decision below or its authority to reinstate

the ACE Rule that was improvidently vacated. Further, EPA’s future plans are not a legal basis for keeping the ACE Rule off the books: if, as North Dakota

argues, the ACE Rule was incorrectly vacated by the

D.C. Circuit based on an interpretation of the CAA that

gives EPA far greater authority than Congress intended, then the ACE Rule should be reinstated. EPA

may offer advisory views on whatever future plans it

wishes, but if the vacatur below was wrongly decided,

then the ACE Rule should be reinstated and in force

while the EPA ponders next steps.

Similarly, Respondents’ claims that North Dakota

and other Petitioners are challenging the CPP miss the

mark. They ignore that part of the ACE Rule was the

rescission of the CPP and that the vacatur of the ACE

Rule implicated not only the replacement rule but the

rescission of the CPP. Further, the D.C. Circuit relied

on the reasoning behind the CPP, which had been

stayed by this Court, to justify its vacatur of the ACE

Rule. Therefore, any discussion of the ACE Rule and

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the decision below cannot avoid some discussion of the

CPP, since the rescission of the CPP was part and parcel of the ACE Rule and the erroneous decision below

was based in large measure on the CPP.

North Dakota is not bringing this Petition asking

the Court to speculate or opine on whatever future action EPA may take with the broad license granted to it

by the D.C. Circuit. North Dakota is seeking the vacatur of the D.C. Circuit’s opinion and the reinstatement

of the ACE Rule because the D.C. Circuit erroneously

bestowed on EPA powers not granted to EPA by Congress in Section 111(d), and in doing so deprived States

of all implementation and decision-making power under Section 111(d) plans in violation of their sovereign

authority recognized by Congress in the CAA. See Petition at i (Question Presented).

II.

The D.C. Circuit’s Decision Implicates Issues

the Court has Recognized as Presenting a

Case and Controversy Meriting Certiorari

Review.

The Court has held that to enforce the Article III

limitation that courts only adjudicate “cases” or “controversies” an applicant must demonstrate a “personal

stake” in the suit. Summers v. Earth Island Inst., 555

U.S. 488, 493 (2009). The party invoking the Court’s

authority has such a stake when three conditions are

satisfied: the Petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct

complained of ” and that “will be redressed by a

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favorable decision.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–561 (1992).

In Massachusetts v. EPA, this Court expanded

Lujan and recognized that a State’s “stake in protecting its quasi-sovereign interest . . . is entitled to special

solicitude in our standing analysis.” 549 U.S. 497, 520

(2007). Just as in Massachusetts v. EPA, North Dakota

has a vested interest in the sovereign authority that

“Congress has ordered EPA to protect” in the CAA by

allowing North Dakota the autonomy to apply sourcespecific considerations to Section 111(d) determinations. Id. at 519.

Contrary to Respondents’ suggestion that the D.C.

Circuit’s opinion “does not subject Petitioners to any

present or imminent concrete harm” (Brief for the Federal Respondents in Opposition, at 17), the D.C. Circuit’s opinion imposes immediate and substantial

harm on North Dakota that exists today. That is because the ACE Rule, a rule supported by North Dakota

that regulates air emissions from existing coal-fueled

electric power generation, a central method of power

generation in North Dakota, has been vacated. The

ACE Rule benefited North Dakota by rescinding the

CPP and replacing it with a rule in line with the authority granted to EPA by Congress. The decision to

vacate the ACE Rule harmed North Dakota by removing the benefit of the ACE Rule and exacerbated the

harm by relying on the unlawful reasoning of the CPP

rule to justify the vacatur. No court or party has ever

suggested that North Dakota, as a major fossil-fuel

energy producing and generating State, did not have

11

standing to support the rescission of the CPP and the

promulgation of the replacement ACE Rule, and North

Dakota did not lose that standing when the ACE Rule

was vacated. Respondents, opponents of the ACE Rule,

are now suggesting a one-way street: reinstating the

ACE Rule would harm the opponents of the rule, but

vacating the ACE Rule does not harm the proponents

of the rule. Just as in Massachusetts v. EPA, North Dakota has a “well-founded desire to preserve its sovereign” authority to regulate existing sources within its

borders through reinstatement of the ACE Rule. 549

U.S. at 519.

III. The D.C. Circuit’s Decision Implicates Issues of National Importance and the Court

Should Not Wait for the Conclusion of

EPA’s Contemplated Rulemaking to Address Those Important Issues.

The Supreme Court has weighed whether the issue is one of national importance in determining

whether to grant certiorari. Pharmaceutical Research

and Mfrs. of America v. Walsh, 538 U.S. 644, 650 (2003)

(“[W]e granted certiorari because the questions presented are of national importance.”).

As raised in North Dakota’s Petition, the D.C. Circuit’s decision below implicates many issues of national

importance related to the control of air emissions from

the generation of energy, as shown by the Court’s prior

stay of the CPP, and the conflicts between the D.C. Circuit’s Opinion and the Court’s prior rulings. Petition at

12

32-35. This is amplified by the potential reach of the

vacatur of the ACE Rule and the D.C. Circuit’s opinion,

which goes beyond the coal-fueled electric generation

sector, and implicates all other existing sources of air

emissions regulated by EPA under Section 111(d). Id.

at 35-37. Further, if the D.C. Circuit’s decision granting

unauthorized power to EPA and excising state sovereignty in violation of the CAA’s principles of cooperative federalism is allowed to stand, many more federal

statutes implicating cooperative federalism are at risk.

Id. at 37-38.

The D.C. Circuit’s ruling has attracted vast national interest. This is evidenced by the four separate

Petitions for Certiorari filed challenging the D.C. Circuit’s decision, the three additional briefs in support

of the Petitioners, the five separate amici briefs in

support of Petitioners, and the four opposition briefs,

representing a multitude of states, non-governmental

organizations, and trade associations. See Dockets

in Nos. 20-1778, 20-1780, 20-1530, 20-1531. As evidenced by the numerous participants who have

weighed in on the question presented in the Petitions, and with the growing national attention to climate change, clarifying the respective roles of the

States, Executive Branch and Congress in controlling air emissions from energy generation is certainly a matter of great national interest.

A decision with such troubling and far-reaching

implications, attracting such national attention, should

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not be permitted to stand unreviewed. North Dakota’s

Petition should be granted.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons and the reasons set forth

in North Dakota’s Petition, the Petition for a Writ of

Certiorari should be granted, and the judgment below

reversed.

Respectfully submitted,

WAYNE STENEHJEM

Attorney General

STATE OF NORTH DAKOTA

PAUL M. SEBY*

Special Assistant

Attorney General

MATTHEW SAGSVEEN

Solicitor General

MARGARET OLSON

Assistant Attorney General

NORTH DAKOTA OFFICE OF

ATTORNEY GENERAL

600 E. Boulevard Avenue

#125

Bismarck, ND 58505

Telephone: (701) 328-3640

Email: masagsve@nd.gov

maiolson@nd.gov

GREENBERG TRAURIG, LLP

1144 15th Street, Suite 3300

Denver, CO 80202

Telephone: (303) 572-6500

Facsimile: (303) 572-6540

Email: sebyp@gtlaw.com

*Counsel of Record

Counsel for Petitioner State of North Dakota