Emergency Application — Ohio, et al., Applicants v. Environmental Protection Agency, et al.
Supreme Court briefOct 13, 2023
Ask Donna
What actually matters in this document.
Text
No. _____
In the Supreme Court of the United States
___________________________________
OHIO, ET AL.
Applicants
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
Respondents.
_______________________________________________________
ON APPLICATION FOR STAY OF ADMINISTRATIVE ACTION TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________________
STATE APPLICANTS’ EMERGENCY APPLICATION FOR A STAY OF
ADMINISTRATIVE ACTION
_______________________________________________________
DAVE YOST
Attorney General of Ohio
MATHURA J. SRIDHARAN*
* Counsel of Record
ZACHERY P. KELLER
Deputy Solicitors General
30 E. Broad St., 17th Floor
Columbus, OH 43215
(614) 466-8980
Mathura.Sridharan@OhioAGO.gov
Counsel for the State of Ohio
(Additional counsel listed after signature block)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
PARTIES TO THE PROCEEDINGS BELOW ............................................................ vi
STATEMENT ................................................................................................................. 2
REASONS TO GRANT THE APPLICATION ............................................................ 14
I.
The States will likely prevail on the merits. ......................................... 15
II.
The States, their industries, and their citizens will be irreparably
harmed without a stay. .......................................................................... 23
III.
Staying the federal plan will promote the public interest and will not
substantially harm others. ..................................................................... 26
CONCLUSION............................................................................................................. 29
APPENDIX
Appendix A: Order Denying Stay in State of Utah, et al. v. Environmental
Protection agency, et al. and consolidated cases, Issued on September 25, 2023
Appendix B: Declaration of Robert Hodanbosi
Appendix C: Declaration of Laura M. Crowder
Appendix D: Declaration of Charlotte R. Lane
Appendix E: Declaration of George J. Farah
i
TABLE OF AUTHORITIES
Cases
Page(s)
Alabama v. EPA,
No. 23-11173 (11th Cir. August 17, 2023) ............................................................. 12
Arkansas v. EPA,
No. 23-1320 (8th Cir.) ............................................................................................... 8
Coal. to Def. Affirmative Action v. Granholm,
473 F.3d 237 (6th Cir. 2006) .................................................................................. 26
Commonwealth v. Biden,
57 F.4th 545 (6th Cir. 2023) ............................................................................. 24, 27
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) .................................................................................. 2, 3, 22, 23
FCC v. Fox TV Stations, Inc.,
556 U.S. 502 (2009) ................................................................................................ 15
Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co.,
588 F. Supp. 2d 919 (S.D. Ind. 2008) ............................................................... 27, 28
Kentucky v. EPA,
No. 23-3216 (6th Cir.) ............................................................................................... 8
Kentucky v. EPA,
Nos. 23-3216/3225, 2023 U.S. App. LEXIS 13442 (6th Cir. May 31,
2023).................................................................................................................... 9, 20
Kentucky v. EPA,
Nos. 23-3216/3225, 2023 U.S. App. LEXIS 18981 (6th Cir. July 25,
2023).................................................................................................................... 8, 11
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001)................................................................................. 3
Michigan v. EPA,
576 U.S. 743 (2015) ................................................................................................ 15
Nken v. Holder,
556 U.S. 418 (2009) .......................................................................................... 14, 27
Office of Commc’n of United Church of Christ v. FCC,
707 F.2d 1413 (D.C. Cir. 1983)............................................................................... 16
ii
Portland Cement Ass’n v. EPA,
665 F.3d 177 (D.C. Cir. 2011) .................................................................... 15, 16, 22
Sierra Club v. Ga. Power Co.,
180 F.3d 1309 (11th Cir. 1999) .............................................................................. 28
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016) ........................................................................ 4, 17, 26
Texas v. EPA,
No. 23-60069, 2023 U.S. App. LEXIS 13898 (5th Cir. May 1, 2023)
................................................................................................... 5, 8, 9, 10, 14, 19, 26
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) ................................................................................................ 24
Train v. Natural Res. Def. Council,
421 U.S. 60 (1975) .................................................................................................... 4
Union Electric Co. v. EPA,
427 U.S. 246 (1976) .................................................................................................. 4
Utah v. EPA,
No. 23-9509 (10th Cir.) ............................................................................................. 8
West Virginia v. EPA,
No. 23-1418 (4th Cir.) ......................................................................................... 8, 22
Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs.,
485 F. Supp. 3d 1 (D.D.C. 2020) ............................................................................ 24
Zen Magnets, LLC v. Consumer Prod. Safety Comm’n,
841 F.3d 1141 (10th Cir. 2016) ........................................................................ 15, 16
Statutes and Rules
40 C.F.R. §70.4 ............................................................................................................. 24
80 Fed. Reg. 65292 (Oct. 26, 2015) ................................................................................ 5
87 Fed. Reg. 9463 (Feb. 22, 2022) ........................................................................... 6, 18
87 Fed. Reg. 9484 (Feb. 22, 2022) ........................................................................... 6, 18
87 Fed. Reg. 9498 (Feb. 22, 2022) ........................................................................... 6, 18
87 Fed. Reg. 9516 (Feb. 22, 2022) ........................................................................... 6, 18
iii
87 Fed. Reg. 9533 (Feb. 22, 2022) ........................................................................... 6, 18
87 Fed. Reg. 9545 (Feb. 22, 2022) ........................................................................... 6, 17
87 Fed. Reg. 9798 (Feb. 22, 2022) ........................................................................... 6, 17
87 Fed. Reg. 9838 (Feb. 22, 2022) ....................................................................... 6, 8, 18
87 Fed. Reg. 20036 (Apr. 6, 2022) ........................................................................... 7, 18
88 Fed. Reg. 9336 (Feb. 13, 2023) ................................................................................. 7
88 Fed. Reg. 36654 (June 5, 2023) ....................... 1, 9, 10, 11, 13, 14, 17, 18, 19, 20, 24
88 Fed. Reg. 49295 (July 31, 2023) ................................................................. 12, 16, 20
88 Fed. Reg. 67102 (Sept. 29, 2023) ................................................................ 12, 17, 20
5 U.S.C. §706 ............................................................................................................ 2, 15
28 U.S.C. §1331 .............................................................................................................. 2
28 U.S.C. §2101 .............................................................................................................. 2
42 U.S.C. §7401 .............................................................................................................. 3
42 U.S.C. §7407 .............................................................................................. 3, 5, 14, 17
42 U.S.C. §7410 ............................................................................ 1, 3, 4, 5, 6, 7, 8, 9, 18
42 U.S.C. §7602 .............................................................................................................. 4
42 U.S.C. §7607 .............................................................................................................. 8
Other Authorities
EPA, Good Neighbor Plan for 2015 Ozone NAAQS.............................................. 13, 17
EPA Motion to Dismiss or Transfer, Oklahoma v. EPA, 23-9561 (10th
Cir. July 20, 2023) .................................................................................................. 19
Memorandum from Peter Tsirigotis (Mar. 27, 2018) ................................................ 5, 6
Memorandum from Peter Tsirigotis (Aug. 31, 2018) .................................................... 5
North American Electric Reliability Corporation, 2023 Summer
Reliability Assessment Infographic (May 2023) .................................................... 25
iv
Ohio EPA Correspondence with State Sources (Aug. 23, 2023) ........................... 24, 25
Order, Arkansas v. EPA, No. 23-1320 (8th Cir. May 25, 2023) ............................. 9, 20
Order, Missouri v. EPA, No. 23-1719 (8th Cir. May 26, 2023) .............................. 9, 20
Order, Nevada Cement Co. v. EPA, No. 23–682 (9th Cir. July 3, 2023) .................... 11
Order, Utah v. EPA, No. 23-9509 (10th Cir. July 27, 2023)....................................... 11
Order, West Virginia v. U.S., No. 23-1418 (4th Cir. Aug. 10, 2023) .................... 12, 23
PJM Interconnection, Energy Transition in PJM: Resource
Retirements, Replacements & Risk (Feb. 24, 2023) ............................................... 25
v
PARTIES TO THE PROCEEDINGS BELOW
The petitioners below included Ohio, Indiana, and West Virginia. This application refers to these States collectively as “the state applicants.”
Other petitioners below included: Case No. 23-1157: State of Utah; Case No.
23-1181: Kinder Morgan, Inc.; Case No. 23-1190: American Forest & Paper Association; Case No. 23-1191: Midwest Ozone Group; Case No. 23-1193: Interstate Natural Gas Association of America and American Petroleum Institute; Case No. 23-1195:
Associated Electric Cooperative, Inc., Deseret Generation & Transmission Co-Operative, d/b/a Deseret Power Electric Cooperative, Ohio Valley Electric Corporation, Wabash Valley Power Association, Inc., d/b/a Wabash Valley Power Alliance, America’s
Power, National Rural Electric Cooperative Association, and Portland Cement Association; Case No. 23-1199: National Mining Association; Case No. 23-1200: American
Iron and Steel Institute; Case No. 23-1201: State of Wisconsin; Case No. 23-1202:
Enbridge (U.S.) Inc.; Case No. 23-1203: American Chemistry Council and American
Fuel & Petrochemical Manufacturers; Case No. 23-1205: TransCanada Pipeline USA
Ltd.; Case No. 23-1206: Hybar LLC; Case No. 23-1207: United States Steel Corporation; Case No. 23-1208: Union Electric Company, d/b/a Ameren Missouri; Case No.
23-1209: State of Nevada; Case No. 23-1211: Arkansas League of Good Neighbors.
The respondents are Environmental Protection Agency and Michael S. Regan,
Administrator, U.S. EPA.
vi
TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE SUPREME COURT
OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT:
The Clean Air Act pictures a world where the States and the EPA share responsibility for ensuring the nation’s air quality. Relevant here, the Act allows each
State to develop a plan to prevent emissions within its borders from significantly affecting other States’ air quality. The EPA then reviews each State’s plan. But that
review is deferential: if a State’s plan meets statutory requirements, the EPA “shall
approve” it, regardless of whether the EPA has a better idea for how to accomplish
the Act’s goals. 42 U.S.C. §7410(k)(3). Correspondingly, the EPA has power to impose a federal plan only if a State fails to submit a statutorily compliant plan. See
§7410(c)(1).
The EPA views its role much differently. In early 2022, it announced a plan to
reject the air-quality plans of roughly half of the country’s States. At nearly the same
time, the EPA revealed its own federal plan, which relied on a coordinated, nationwide approach to emissions reductions. Despite many objections, the EPA finalized
that plan in June. Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient
Air Quality, 88 Fed. Reg. 36654 (June 5, 2023). This federal plan purports to establish emission-reduction standards for “23 upwind states.” Id. at 36656. But due to a
combination of litigation and interim rulemaking, a dozen of those States and over
three quarters of the emissions that the plan sought to regulate, are already exempt
from the plan. Nonetheless, the EPA insists that its federal plan should still apply
in the remaining States.
1
The Court should stay application of this federal plan while many parties—
including Ohio, Indiana, and West Virginia—challenge the plan in the D.C. Circuit. The challengers are likely to succeed on their claims under the Administrative
Procedure Act. That Act requires federal agencies to reach decisions in a considered
matter, so as to avoid arbitrary and capricious government action.
5 U.S.C.
§706(2)(A). In promulgating the federal plan, the EPA did not meet that threshold. Tellingly, in just a few months, the federal plan is down to a sliver of what the
EPA intended. And the federal plan’s failures were both foreseeable and inevitable. Most glaringly, the EPA’s rulemaking ignored obvious problems with its attempt
to twist the Clean Air Act into a system of top-down regulation instead of the system
of cooperative federalism that Congress intended.
The remaining stay factors also favor pausing the federal plan. The plan inflicts irreparable, economic injuries on the States and others every day it remains in
effect. Worse still, the plan is likely to cause electric-grid emergencies, as power suppliers strain to adjust to the federal plan’s terms. To prevent these harms, the Court
should step in now.
JURISDICTION
This Court has jurisdiction to resolve this application under 28 U.S.C. §§1331
and 2101(f).
STATEMENT
1. In our federalist system, counteracting air pollution is supposed to be a
cooperative effort. “Air pollution is transient, heedless of state boundaries.” EPA v.
EME Homer City Generation, L.P., 572 U.S. 489, 496 (2014). Notwithstanding that
2
transience, “States and local governments” have traditionally shouldered the “primary responsibility” for controlling air pollution. See 42 U.S.C. §7401(a)(3). Against
this backdrop, Congress passed the Clean Air Act “to encourage and assist the development and operation of regional air pollution prevention and control programs.”
§7401(b)(4). The Act is “an experiment in cooperative federalism” Michigan v. EPA,
268 F.3d 1075, 1083 (D.C. Cir. 2001). On the one hand, the Act tasks the EPA with
establishing National Ambient Air Quality Standards for certain air pollutants.
Homer, 572 U.S. at 498. (In this acronym-heavy field, regulators and stakeholders
often refer to these standards as “NAAQS.” The state applicants simply call them
“air-quality standards.”) On the other hand, the States retain “the primary responsibility for assuring air quality” within their borders, including the power to choose the
“manner in which” they will satisfy the Act’s demands. §7407(a).
States meet their obligations under the Act by crafting “state-implementation
plans,” often called “SIPs” in the field. These state plans implement air-quality
standards by incorporating measures adequate to assure “compliance with the Act’s
requirements.” Homer, 572 U.S. at 507. Among other things, a state plan must show
that the State will comply with the Act’s “good neighbor” provision, which requires
“upwind States to reduce emissions to account for pollution exported beyond their
borders.” Id. at 499; accord §7410(a)(2)(D). To account for a State’s good-neighbor
obligations, a state plan must “contain adequate provisions” to prohibit in-state emissions from “contribut[ing] significantly to nonattainment in, or interfer[ing] with
maintenance by, any other State” in its own compliance with air-quality standards.
3
§7410(a)(2)(D)(i)(I). But as “long as the ultimate effect of a State’s choice of emission
limitations is compliance with” national air-quality standards, “the State is at liberty
to adopt whatever mix of emission limitations it deems best suited to its particular
situation.” Train v. Natural Res. Def. Council, 421 U.S. 60, 79 (1975).
The EPA, for its part, serves a “ministerial” role when reviewing state-implementation plans. Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016) (quotations omitted). If a state plan meets the Act’s requirements, the EPA “shall approve” it.
§7410(k)(3). As a result, the EPA cannot disapprove a state plan merely because it
believes there is a better way to achieve the Act’s requirements. The Clean Air Act
thus leaves “[e]ach State … wide discretion in formulating its plan.” Union Electric
Co. v. EPA, 427 U.S. 246, 250 (1976); see also Train, 421 U.S. at 79.
The EPA shall issue a “federal implementation plan” for a State to follow—
sometimes called a “FIP”—only if the State’s plan “does not satisfy the [Act’s] minimum criteria.” §7410(c)(1)(A). Federal plans, like state plans, must meet the Act’s
requirements. See §§7410(c)(1), 7602(y). Although the EPA has authority to promulgate a federal-implementation plan “at any time” after it disapproves of a State’s
plan, §7410(c)(1), the Act expects continued cooperation between the EPA and the
State. For instance, if the EPA finds state plan inadequate, the Act anticipates that
the EPA will provide an opportunity for “the State” to “correct[] the deficiency.”
§7410(c)(1)(B). To facilitate this back and forth with the States, the Act gives the
EPA a two-year cushion between (1) the date it “disapproves a State implementation
plan submission in whole or in part” and (2) the date it needs to issue a federal-
4
implementation plan. §7410(c)(1)(B). Consistent with that cushion, a State may submit a revised state plan any time in the two-year period before any federal plan would
go into effect. See §7410(c)(1). All this fits with the Act’s foundational principle that
the States retain the “primary responsibility for assuring air quality.” §7407(a). Congress viewed federal plans as a last resort.
2. In October 2015, the EPA revised air-quality standards for ozone pollution.
National Ambient Air Quality Standard for Ozone, 80 Fed. Reg. 65292, 65301 (Oct.
26, 2015). That change triggered the States’ obligation to update their state-implementation plans. §7410(a)(1). Relevant here, the updated state plans needed to
include plans for how each State would satisfy the Act’s “good neighbor” provision.
§7410(a)(2)(D).
For a while, the process remained cooperative. In 2018, the EPA issued guidance to “assist states in developing” state-implementation plans for the new standards.
See
Memorandum
from
Peter
Tsirigotis
at
3
(Mar.
27,
2018),
https://perma.cc/Y8YF-CQMB (“March Memorandum”); see also Memorandum from
Peter Tsirigotis (Aug. 31, 2018), https://perma.cc/G8EN-RN8Q (“August Memorandum”); see also Texas v. EPA, No. 23-60069, 2023 U.S. App. LEXIS 13898, *6–7 & n.2
(5th Cir. May 1, 2023) (per curiam). The EPA included modeling parameters that the
States could use in developing their plans, along with explanations of the appropriate
threshold for determining whether emissions contributions are significant.
See
March Memorandum at Attachments B & C; August Memorandum 4. Further, the
EPA “recommend[ed] that states reach out to EPA Regional offices and work together
5
to accomplish the goal of developing, submitting, and reviewing approvable” state
plans. March Memorandum 6. Many States—including state applicants—accepted
this offer and worked closely with the EPA to formulate compliant state plans. See
App.C-6 (Crowder Decl. ¶¶14–15).
The States then submitted their state-implementation plans according to the
EPA’s advice. Ohio submitted its state plan in September 2018, Indiana in November
of the same year, and West Virginia in February 2019. See Air Plan Disapproval;
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, 87 Fed. Reg. 9838, 9845,
9849 (Feb. 22, 2022); Air Plan Disapproval; West Virginia, 87 Fed. Reg. 9516, 9522
(Feb. 22, 2022). Under the Act, the EPA had eighteen months to approve or disapprove of the proposed state plans. See §§7410(k)(1)(B), (k)(2). But it sat on the States’
submissions for much longer. And for all that time, the EPA never hinted at a problem with the state plans.
Things suddenly changed in February 2022. On a single day, the EPA proposed to disapprove the submissions of nineteen different States. See, e.g., 87 Fed.
Reg. at 9852 (Ohio and Indiana); 87 Fed. Reg. at 9516 (West Virginia); Air Plan Disapproval; Alabama, Mississippi, Tennessee, 87 Fed. Reg. 9545 (Feb. 22, 2022); Air
Plan Disapproval; Arkansas, Louisiana, Oklahoma, Texas, 87 Fed. Reg. 9798 (Feb.
22, 2022); Air Plan Disapproval; Kentucky, 87 Fed. Reg. 9498 (Feb. 22, 2022); Air Plan
Disapproval; Maryland, 87 Fed. Reg. 9463 (Feb. 22, 2022); Air Plan Disapproval;
Missouri, 87 Fed. Reg. 9533 (Feb. 22, 2022); Air Plan Disapproval; New York and
New Jersey, 87 Fed. Reg. 9484 (Feb. 22, 2022).
6
A few months later, the EPA
disapproved four more States’ plans, bringing the total number of disapproved state
plans to twenty-three. See Air Plan Disapprovals, 88 Fed. Reg. 9336, 9337 n.6 (Feb.
13, 2023).
At that point, the EPA might have worked with the States to correct the perceived deficiencies in the state plans. See §7410(c)(1)(B). The EPA, however, chose a
different course. Less than two months after proposing to disapprove the plans of
nineteen States, and before the deadline for commenting on the disapprovals even
expired, the EPA proposed its own federal-implementation plan. Federal Implementation Plan Addressing Regional Ozone Transport, 87 Fed. Reg. 20036 (Apr. 6, 2022).
The proposed federal plan sought to “resolve” the good-neighbor obligations for
roughly half of this country’s States. Id. at 20038. More precisely, the EPA imposed
a single, coordinated plan to reduce air pollution from 23 States based on a combined
analysis of those States’ upwind contributions to ozone pollution in downwind States.
Id. Under this multi-state approach, the EPA purported to apportion the responsibility of reducing emissions “collectively” among “contributing upwind states.” Id. at
20076. The EPA said that this coordinated approach would yield an “‘efficient and
equitable solution’” by imposing “uniform cost[s]” on “states that are collectively responsible for air quality.” Id. (quoting Homer, 572 U.S. at 519); see also id. at 20060.
3. Over vehement protests, the EPA pushed on with its plan to control the
nation’s air quality. This past February, it finalized disapprovals for the state-implementation plans of over twenty States, including Ohio, Indiana, and West Virginia.
88 Fed. Reg. at 9336. Many States filed petitions in the courts of appeals challenging
7
the EPA’s disapprovals. See, e.g., West Virginia v. EPA, No. 23-1418 (4th Cir.); Texas
v. EPA, No. 23-60069 (5th Cir.); Kentucky v. EPA, No. 23-3216 (6th Cir.); Arkansas v.
EPA, No. 23-1320 (8th Cir.); Utah v. EPA, No. 23-9509 (10th Cir.); see also
§7607(b)(1). Other States—including Ohio and Indiana—chose not to pursue litigation, hoping to work with the EPA to come up with a solution acceptable to all sides.
See §7410(c)(1).
Litigation quickly highlighted the serious flaws in the EPA’s mass disapproval
of state-implementation plans. One court, for example, concluded that rather than
performing a ministerial review of state plans under the Clean Air Act, see above 4,
the EPA “exceeded its authority” by utilizing “non-statutory factors” during its evaluation. Texas, 2023 U.S. App. LEXIS 13898 at *16–18. That “approach invert[ed]”
the Clean Air Act by denying the States their “primary” role in the regulation of air
pollution. Id. at *19–20 (quotations omitted). Another problem was that the EPA
analyzed state plans using modeling data that was not available when the States
made their submissions. Id. at *24–25; Kentucky v. EPA, Nos. 23-3216/3225, 2023
U.S. App. LEXIS 18981, *10–11 (6th Cir. July 25, 2023). That choice unlawfully
moved the “goalpost” on the States. Texas, 2023 U.S. App. LEXIS 13898 at *25. Yet
another problem was that the EPA’s review relied on “a material shift” from the earlier guidance it had offered to the States about how to meet their requirements. Id.
at 23. And many States had used the EPA’s earlier guidance, to their detriment,
when crafting their state plans. See id. at *26; 87 Fed. Reg. at 9840–41.
8
As proves important later on, the EPA had not yet finalized its federal-implementation plan when the just-discussed litigation commenced. And as part of the
comment process for the federal plan, commenters previewed the many legal problems with the EPA’s disapprovals of state plans. See 88 Fed. Reg. at 36672; EPA,
Response to Public Comments at 2–6, 9–11, 145–55, https://perma.cc/N7CK-3YTE.
Those commenters proved prescient: before the EPA finalized the federal plan, the
Fifth Circuit held that the EPA likely behaved unlawfully when it disapproved the
state plans. Texas, 2023 U.S. App. LEXIS 13898 at *16. A panel of that court thus
stayed the EPA’s regulatory actions as to Texas and Louisiana. Id. at *31. The Sixth
and Eighth Circuits also stayed the EPA’s state-plan disapprovals pending judicial
review. See, e.g., Kentucky, 2023 U.S. App. LEXIS 13442 at *2; Order, Arkansas v.
EPA, No. 23-1320 (8th Cir. May 25, 2023); Order, Missouri v. EPA, No. 23-1719 (8th
Cir. May 26, 2023). Because only an operative state-plan denial can trigger the EPA’s
obligation to impose a federal one, see §7410(c)(1), the EPA necessarily lost its authority to impose a federal plan as to those States.
4. The EPA pressed on anyway, finalizing its federal-implementation plan in
early June. 88 Fed. Reg. 36654. Notwithstanding litigation that threatened to disrupt the federal plan’s multi-state approach, and courts staying the EPA’s actions in
several critical States, the EPA stuck with its nationwide plan. That is, the federal
plan tries to resolve the good-neighbor obligations of “23 upwind states”—including
Ohio, Indiana, and West Virginia—even though the EPA could not enforce it against
9
many of those same States from the outset. Id. at 36656; see, e.g., Texas, 2023 U.S.
App. LEXIS 13898.
The federal plan requires emissions reductions for each State that are based,
in large part, on the “combined effect of the entire program across all linked upwind
states.” 88 Fed. Reg. at 36749. According to the EPA, the federal plan ensures “national consistency” by imposing “a uniform framework of policy judgments” across the
country. Id. at 36673. And the EPA explained that a consistent rule across “all jurisdictions” was “vital” to ensuring that the burdens of regulation were divided efficiently and equitably among the States. Id. at 36691–92; see also id. at 36676–77,
36719, 36741. The final rule, the EPA concluded, is a “nationally applicable” action
within the meaning of the Clean Air Act, “given the interdependent nature of interstate pollution transport” and the “large number of states” to which the federal plan
applied. Id. at 36860. Pursuant to executive order, the EPA also assessed the federalism implications of its rulemaking. Surprisingly, the EPA claimed that its plan did
“not have federalism implications” and would not “have substantial direct effects on
the states.” Id. at 36858.
The finalized federal plan is ambitious. It imposes specific emissions reductions on several new industrial stationary sources (referred to as “non-Electric Generating Units” or “non-EGUs”) for the first time in decades with respect to the Act’s
good-neighbor provision. See id. at 36654, 36681. It also permits power plants within
the States to participate in an overhauled cap-and-trade program, but imposes
“enhancements” that reduce flexibility and create costly compliance challenges. See
10
id. at 36762–70. Specifically, the federal plan shrinks the tradeable allowance bank
by removing “surplus … allowances” that “diminish[] the intended stringency” of the
program. Id. at 36767. Future allowances will be so hard to come by that sources
may be forced to choose between steep penalties, changing their operations, or shutting down.
Ostensibly, the EPA left open the possibility that a State could “replace” the
federal plan with its own plan. Id. at 36838. But that is, in any real sense, impossible
under the EPA’s own logic. The EPA, for example, warned that the agency “does not
anticipate revisiting its” regulatory framework and that any state plan will have to
be “equivalent to” the federal plan. Id. at 36839. That is, the EPA “anticipate[s] that
states seeking to replace the” federal plan with a state plan “that takes an alternative
approach” will “need to establish, at a minimum, an equivalent level of emissions
reduction to what the [federal plan] requires.” Id. The EPA further said that “[t]he
most straightforward method for a state to submit a presumptively approvable” state
plan is to provide a plan that looks much like the federal plan. See id. at 36842.
5. After finalizing the federal plan, the EPA continued to receive bad news in
courts around the country. The Sixth, Ninth, and Tenth Circuits joined the Fifth in
concluding that the States had a strong case that the EPA’s state-plan disapprovals
were illegal. Kentucky, 2023 U.S. App. LEXIS 18981 at *10–11; Order at 2, Nevada
Cement Co. v. EPA, No. 23–682 (9th Cir. July 3, 2023); Order at 4, Utah v. EPA, No.
23-9509 (10th Cir. July 27, 2023). The Fourth and Eleventh Circuits also stayed the
EPA’s actions, without analysis, to allow for judicial review of challenges to state-
11
plan disapprovals. See Order, West Virginia v. EPA, No. 23–1418 (4th Cir. Aug. 10,
2023); Alabama v. EPA, No. 23-11173 (11th Cir. Aug. 17, 2023). At this point, every
circuit to have considered staying a state-plan disapproval—seven in total—has
granted a stay.
Eventually, the EPA acknowledged the broad implications of this nationwide
litigation for its federal-implementation plan. In late July, the EPA issued an interim
final rule reacting to litigation over state-plan disapprovals. Response to Judicial
Stays of SIP Disapproval Action for Certain States, 88 Fed. Reg. 49295 (July 31,
2023). The interim rule stayed the federal plan’s application to Arkansas, Kentucky,
Louisiana, Mississippi, Missouri, and Texas. Id. at 49295.
A few weeks ago, the EPA issued another interim final rule responding to the
next wave of judicial orders halting its state-plan disapprovals. Response to Additional Judicial Stays of SIP Disapproval Action for Certain States, 88 Fed. Reg. 67102
(Sept. 29, 2023). In this second interim rule, the EPA expanded its stay of the federal
plan to six additional states: Alabama, Minnesota, Nevada, Oklahoma, Utah, and
West Virginia. Id. at 67102. For West Virginia, however, the stay may be lifted in a
matter of weeks. The length of the Fourth Circuit’s stay is tied to an oral argument,
scheduled for October 27, in litigation pertaining to West Virginia’s state-plan disapproval. See id. at 67103. Notably, during its interim rulemaking the EPA again concluded without explanation that its actions would have no federalism implications.
88 Fed. Reg. at 49301; 88 Fed. Reg. at 67105.
12
At this point, the federal plan—a plan designed to apply collectively to the “interdependent” emissions from “23 upwind states,” see 88 Fed. Reg. at 36656, 36860—
applies to only 11 States. That means, in comparison to the federal plan’s stated
intent, it now regulates only 11% of the emissions from electric-generating units and
about 40% of the emissions from industrial sources. See EPA, Good Neighbor Plan
for 2015 Ozone NAAQS (last updated June 30, 2023), computed from data maps available at https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs. All in all,
over 75% of the emissions that the federal plan originally set out to control are presently exempt from the federal plan. See id.
6. The federal-implementation plan became effective on August 4, 2023. 88
Fed. Reg. at 36654. Before that effective date, Ohio, Indiana, and West Virginia filed
a petition in the D.C. Circuit challenging the federal plan. Several other petitioners,
representing various other States and various private industries, also challenged the
federal plan. Shortly after filing their petitions, the States and private petitioners
moved to stay the federal plan pending judicial review. The States argued, among
other things, that the EPA’s rulemaking process circumvented the Clean Air Act’s
cooperative-federalism mandate by forcing its own top-down control over state-level
air-pollution reduction.
In late September, a divided panel of the D.C. Circuit Court of Appeals denied
the motions to stay without analysis. App.A-1–2. One judge—Judge Walker—dissented stating that he would have granted the stay. App.A-1.
7. The States now bring this application for a stay.
13
REASONS TO GRANT THE APPLICATION
In deciding whether to issue a stay, this Court considers “four factors:
‘(1) whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.’” Nken v. Holder, 556 U.S. 418,
434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two
factors “are the most critical.” Id.
Here, each factor favors a stay. Although the States retain “the primary responsibility for assuring air quality,” 42 U.S.C. §7407(a), the EPA persists in unlawfully imposing its vision of air-quality regulation. After disapproving the state-implementation plans of nearly half the States in the Union, the EPA finalized a single
federal-implementation plan for all of them. Federal ‘Good Neighbor Plan’ for the
2015 Ozone National Ambient Air Quality, 88 Fed. Reg. 36654 (June 5, 2023). The
EPA purported to set emission-reduction standards through a coordinated plan designed to reduce the collective emissions of “23 upwind States” under the Clean Air
Act’s good-neighbor provision. Id. at 36656, 36860. Yet, after just a few months, the
federal plan is already a disaster. The plan now applies to only 11 of the 23 States it
was supposed to cover. And it reaches less than 25% of the emissions it set out to
regulate. But rather than admitting failure and returning to the drawing board, the
EPA has doubled down on its “dictatorial” quest for top-down control on reducing air
pollution. Texas v. EPA, No. 23-60069, 2023 U.S. App. LEXIS 13898, *28 (5th Cir.
May 1, 2023).
14
Because this case presents important issues, because the States will likely prevail on the merits, and because the States will suffer in the meantime, the Court
should step in now to stay the federal plan pending judicial review.
I.
The States will likely prevail on the merits.
A. The Administrative Procedure Act requires federal courts to set aside
agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. §706(2)(A). Applying this text, “administrative
agencies are required to engage in reasoned decisionmaking.” Michigan v. EPA, 576
U.S. 743, 750 (2015) (quotations omitted). “Not only must an agency’s decreed result
be within the scope of its lawful authority, but the process by which it reaches that
result must be logical and rational.” Id. (quotations omitted). This means that
“agency action is lawful only if it rests on a consideration of the relevant factors.” Id.
(quotations omitted). And an agency must “display awareness” of the surrounding
context in which it operates and “provide reasoned explanation for its action.” FCC
v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009). Along the same lines, “an agency
may not entirely fail to consider an important aspect of the problem when deciding
whether regulation is appropriate.” Michigan, 576 U.S. at 752 (alterations accepted,
quotations omitted).
It follows from these principles that an agency has an “obligation to
acknowledge and account for” the “regulatory posture the agency creates.” Portland
Cement Ass’n v. EPA, 665 F.3d 177, 187 (D.C. Cir. 2011) (per curiam); accord Zen
Magnets, LLC v. Consumer Prod. Safety Comm’n, 841 F.3d 1141, 1150 (10th Cir.
2016). Said another way, an agency cannot ignore the effects—or likely effects—of
15
“contemporaneous and closely related rulemaking.” Portland Cement Ass’n, 665 F.3d
at 187; see also Office of Commc’n of United Church of Christ v. FCC, 707 F.2d 1413,
1441–42 (D.C. Cir. 1983). An agency must instead offer a “satisfactory explanation,”
which takes a “hard look” at any “salient problems” arising from the regulatory landscape. Portland Cement Ass’n, 665 F.3d at 187 (quotations omitted). To be sure, an
agency “must promulgate rules based on the information it currently possesses.” Id.
But that does not give an agency license to ignore “obvious” trends, see Zen Magnets,
LLC, 841 F.3d at 1150, particularly when those trends are a product of the agency’s
“own process,” see Portland Cement Ass’n, 665 F.3d at 187.
B. Turning to this case, the federal plan is already a failed experiment. It
applies to less than half of the States, and under a quarter of the emissions, that it
set out to regulate. In reality, the federal plan was always doomed; the EPA’s carefully timed gambit to work around the Clean Air Act’s structure of cooperative federalism was never going to work. With any reasoned consideration, the EPA would
have known as much. Indeed, every circuit to have considered a state-plan disapproval—seven in total—has stayed the EPA’s action. And some did so before the
federal plan was even finalized. All told, the EPA failed “to acknowledge and account
for” the surrounding regulatory landscape. See Portland Cement Ass’n, 665 F.3d at
187. As a result, the state applicants are likely to succeed on the merits.
Begin with where we are now. Since promulgating its federal-implementation
plan (just a few months ago), the EPA has issued two interim rules that exempt a
dozen States from the plan. Response to Judicial Stays of SIP Disapproval Action for
16
Certain States, 88 Fed. Reg. 49295 (July 31, 2023); Response to Additional Judicial
Stays of SIP Disapproval Action for Certain States, 88 Fed. Reg. 67102 (Sept. 29,
2023). These exemptions block the federal plan from achieving its purpose. As the
EPA suggests, upwind States’ contribution to pollution in downwind States will “substantial[ly] decrease” when upwind states “collectively” participate in the emissionsreduction program. See id. at 36683. The data bears this out. After exempting a
dozen States, the federal plan regulates only (1) about 11% of the emissions from
electric-generating units it intended to regulate and (2) about 40% of emissions from
industrial sources it intended to regulate. See EPA, Good Neighbor Plan for 2015
Ozone NAAQS (last updated June 30, 2023), computed from data maps available at
https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs.
Overall, more
than 75% of the emissions that the federal plan set out to control are now exempt
from the federal plan. See id. The federal plan is but a shell of its original self.
This result was entirely foreseeable. It stems from the EPA’s refusal to engage
with the cooperative federalism the Clean Air Act requires. Recall that the Act establishes a system under which the States retain the “primary responsibility for assuring air quality.” 42 U.S.C. §7407(a). As Congress wrote it, the EPA plays a secondary, “ministerial” role when reviewing state-implementation plans. Texas v. EPA,
829 F.3d 405, 411 (5th Cir. 2016) (quotations omitted). But here, the EPA has cast
itself in the leading role. In February 2022, the EPA launched a coordinated attack
on the state plans of nearly twenty States. See Air Plan Disapproval; Alabama, Mississippi, Tennessee, 87 Fed. Reg. 9545 (Feb. 22, 2022); Air Plan Disapproval;
17
Arkansas, Louisiana, Oklahoma, Texas, 87 Fed. Reg. 9798 (Feb. 22, 2022); Air Plan
Disapproval; Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, 87 Fed. Reg.
9838 (Feb. 22, 2022); Air Plan Disapproval; Kentucky, 87 Fed. Reg. 9498 (Feb. 22,
2022); Air Plan Disapproval; Maryland, 87 Fed. Reg. 9463 (Feb. 22, 2022); Air Plan
Disapproval; Missouri, 87 Fed. Reg. 9533 (Feb. 22, 2022); Air Plan Disapproval; New
York and New Jersey, 87 Fed. Reg. 9484 (Feb. 22, 2022); Air Plan Disapproval; West
Virginia, 87 Fed. Reg. 9516 (Feb. 22, 2022). As it just so happened, the EPA had a
single federal plan ready to go for all of these States in less than two months. Federal
Implementation Plan Addressing Regional Ozone Transport, 87 Fed. Reg. 20036 (Apr.
6, 2022). And the EPA’s finalized federal plan drives home the agency’s mindset. It
appears that in the EPA’s view, the only acceptable state plan is one that is functionally equivalent to its own. See 88 Fed. Reg. at 36839.
Unsurprisingly, the EPA’s thinly veiled attempt to transform the Clean Air Act
into a top-down system of regulation led to problems in the EPA’s decisionmaking
process. Two related features of the federal-implementation plan contribute to the
problems. First, the EPA’s authority to issue a federal-implementation plan kicks in
only if the agency properly disapproves a state-implementation plan. See 42 U.S.C.
§7410(c)(1). Thus, the EPA had authority to issue a nationwide federal-implementation plan only if the EPA properly disapproved the state plan of every covered State.
Second, the federal plan at issue here relied on a multi-state analysis to reach an
“efficient and equitable solution” for how to “apportion emissions reduction responsibilities among upwind states that are collectively responsible for downwind air
18
quality.” 88 Fed. Reg. at 36719 (quotations omitted). In other words, the EPA’s multistate analysis was based on the participation of all “23 upwind states” that would be
subject to the federal plan. See id. at 36667. Thus, as the EPA has since admitted in
litigation, its plan “depends on the continuing operation of ‘interdependent’ interstate
mechanisms, like the allowance trading program, that reach beyond state or regional
borders.” EPA Motion to Dismiss or Transfer at 16, Oklahoma v. EPA, 23-9561 (10th
Cir. July 20, 2023); see also 88 Fed. Reg. at 36691 (explaining that “consistency”
across “all jurisdictions is vital”).
Putting all of this together, the EPA failed to consider a relevant factor during
its decisionmaking: namely, the numerous and obvious flaws in its decisions to disapprove state-implementation plans. For one thing, the EPA began by disapproving
state plans en masse. And it used non-statutory factors to deny those plans, relied on
data unavailable to the States at the time of their submissions, and contradicted its
own earlier guidance. See Texas, 2023 U.S. App. LEXIS 13898 at *16–28. Importantly, the EPA was well aware of these flaws when it was finalizing its federal
plan. Many States had immediately gone to court upon disapproval of their plans.
See above 7–8. And commenters had pointed out the many legal issues with the EPA’s
disapproval.
See EPA, Response to Public Comments at 2–6, 9–11, 145–55,
https://perma.cc/N7CK-3YTE. The Fifth Circuit had too. Recall that it granted a
stay, and held the EPA’s actions likely unlawful, before the EPA finalized the federal
plan. Texas v. EPA, No. 23-60069, 2023 U.S. App. LEXIS 13898 at *16–28. And other
circuits had also begun to stay the EPA’s actions by late spring, before the federal
19
plan was finalized. See Kentucky v. EPA, Nos. 23-3216/3225, 2023 U.S. App. LEXIS
13442 (6th Cir. May 31, 2023); Order, Arkansas v. EPA, No. 23-1320 (8th Cir. May
25, 2023); Order, Missouri v. EPA, No. 23-1719 (8th Cir. May 26, 2023).
Thus, by the time the EPA finalized its federal plan, there was a strong likelihood—if not a near certainty—that the federal implementation would not go into effect for all “23 upwind states,” as intended. 88 Fed. Reg. at 36667. Armed with that
likelihood, any reasonable decisionmaker would have stopped to consider this question: Will the federal-implementation plan still be an effective, “efficient[,] and equitable solution” for the covered upwind States if it does not apply collectively to all of
them? See id. at 36719. The EPA never seriously grappled with that inquiry, even
though many courts had already stayed its actions. Instead, the EPA uncritically
proceeded under the assumption that its plan would go into effect for all “23 upwind
states.” Id. Along related lines, the EPA never acknowledged the serious federalism
implications of its plan, including the likelihood that the federal plan would not apply
uniformly to all 23 upwind states that the EPA intended to cover. See id. at 36858;
see also 88 Fed. Reg. at 49301; 88 Fed. Reg. at 67105.
The EPA also never adequately considered a smaller, severed version of the
federal plan. True, the EPA asserted, without legal analysis, that its plan would be
severable. Id. at 36693. But its reasoning was conclusory at best: that the federal
plan should be severable because some air-quality regulation is better than none. See
id. That broad brush dodges the key question of whether the federal implementation
plan remains a fair and effective division of emission-reduction responsibilities when
20
its application is not uniform. Take, as just one consideration, the issue of competitive balance among States. Upwind states actually subject to the federal plan will
face significant compliance burdens and other economic injuries. Below 23–26. They
will thus be at a competitive disadvantage to upwind States exempt from the plan.
The EPA’s severability rationale gives this and other consequences of unequal application (including consequences for private parties) no thought. In short, if the EPA’s
some-regulation-is-better-than-nothing approach counts as reasoned decisionmaking, then anything does.
*
At bottom, the federal-implementation plan is arbitrary and capricious. It no
longer achieves its original goal to set federal emission-reduction standards for 23
upwind States. And the federal plan’s failures were both predictable and inevitable.
During its rulemaking, the EPA failed to grapple with the regulatory mess it created
when it took a combined regulatory action against more than 20 different States; and
then forced them to accept a single, coordinated federal plan. The EPA’s desire to
force a square peg (a federal air-quality plan) into a round hole (a cooperative, statedriven system) was always going to be a poor fit. Because the EPA failed to confront
that reality, it failed to engage in the reasoned decisionmaking required under the
Administrative Procedure Act.
3. The D.C. Circuit did not explain its reasons for denying the States a stay.
See App.A-1–2. But two objections to the States’ arguments, that the EPA raised in
briefing below, are worth addressing here.
21
First, the state applicants’ arguments do not amount to a collateral attack on
the disapprovals of their state-implementation plans. As mentioned already, Ohio
and Indiana did not challenge the EPA’s disapproval of their state plans. (Remember,
however, that West Virginia did. West Virginia v. EPA, No. 23–1418 (4th Cir.).) It
follows that Ohio and Indiana will be subject to regulatory plans that are different
from the plans they proposed. But it does not follow that they must accept an unlawful federal-implementation plan. Here, because the federal plan takes a multi-state
approach, its lawfulness is necessarily intertwined with the lawfulness of the EPA’s
various state-plan disapprovals. Put another way, the potential effects of “a contemporaneous and closely related rulemaking” process were something the EPA needed
to consider when promulgating its federal plan. Portland Cement Ass’n, 665 F.3d at
187. The EPA’s failure to do so renders the federal plan unlawful. The state applicants—as regulated States under the federal plan—are free to challenge the federal
plan, and they could not have done so before the EPA finalized the plan.
Second, this Court’s decision in EPA v. EME Homer City Generation, L.P., 572
U.S. 489 (2014), does nothing to upset the States’ arguments. There, the Court resolved a procedural issue and two merits issues. Procedurally, the Court held that
States could challenge a federal-implementation plan even though they had not challenged the disapproval of their “particular” state-implementation plans. Id. at 507.
The Court said that the “gravamen” of the States’ challenge was not the illegality of
disapproval, but instead that the EPA failed to meet statutory obligations before imposing a federal-implementation plan. Id. at 507. So too for Ohio and Indiana. The
22
gravamen of their challenge is not the disapproval of their particular state plans.
Rather, they challenge the EPA’s failure to engage in reasoned decisionmaking, based
on its failure to consider the consequences of litigation involving other States. On the
merits, Homer held that once the EPA has found a state plan inadequate, it may issue
a federal plan without giving the State further guidance. Id. at 508. The Court further held that the EPA may consider costs in allocating “emission reductions among
upwind States.” Id. at 524. Neither of those holdings relieve the EPA of its obligation
to ensure that any federal plan is reasoned and follows the law—so those holdings
are irrelevant to this case.
II.
The States, their industries, and their citizens will be irreparably
harmed without a stay.
Without a stay, the States have sustained—and will continue to sustain—se-
rious, irreparable injuries. Before explaining why, however, the States pause for a
coda. Although the Fourth Circuit stayed the EPA’s state-plan disapproval as to one
of the state applicants (West Virginia), absent further action that stay lasts only
through October. See Order, ECF. 39, West Virginia v. U.S., No. 23-1418 (4th Cir.
Aug. 10, 2023). Thus, a stay is still essential for preventing further irreparable harm
to all the state applicants.
Turn now to the harm inflicted by the federal-implementation plan. As explained in full shortly, the States are being harmed by the time, money, and other
resources spent on complying with an unlawful federal mandate. See, e.g., App.B-6,
9–10 (Hodanbosi Decl. ¶¶14–15, 22–25); see App.C-13–16 (Crowder Decl. ¶¶40–44);
App.D-3, 4–11 (Lane Decl. ¶¶5, 7–22); App.E-5–6 (Farah Decl. ¶¶12–15). Because
23
these costs are unrecoverable against the federal government, the States are irreparably harmed every day that passes without a stay. See Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J., concurring in part); see also WhitmanWalker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1, 58
(D.D.C. 2020) (same and collecting examples); Commonwealth v. Biden, 57 F.4th 545,
556 (6th Cir. 2023).
For one thing, the federal plan directly imposes significant compliance burdens
on the States. Under the federal plan, the States are responsible for issuing or updating Title V permits for covered sources within the State. See 88 Fed. Reg. at
36843–44; App.B-7–8 (Hodanbosi Decl. ¶¶18–19); App.C-14 (Crowder Decl. ¶41). Because each permit is unique to the needs of each facility, each permitting process will
require rounds of drafting, staff review, public notice, public meetings, and responses
to public comments.
App.C-14–16 (Crowder Decl. ¶¶41–43); see App.B-7–8
(Hodanbosi Decl. ¶¶18–19). The permitting process is thus lengthy, resource intensive, and costly. The States should not have to deplete their coffers while waiting to
see how this litigation—which could go on for months or, likely, years—plays out.
The compliance costs borne by the States do not end there. The federal plan
also makes States responsible for ensuring that covered sources adequately monitor
their emissions. See 88 Fed. Reg. at 36843; 40 C.F.R. §70.4. As a result, the States
are currently expending significant resources to ensure that sources in their boundaries are aware of their obligations under the federal plan—which include monitoring,
recordkeeping, and reporting obligations. See Ohio EPA Correspondence with State
24
Sources, (Aug. 23, 2023), https://perma.cc/83CB-9BZW. The States, in addition, ensure that covered sources within their borders are fitted with the necessary technology for monitoring emissions so that the sources can show compliance with the federal
plan. See id.; App.B-10 (Hodanbosi Decl. ¶24). Consequently, the States must divert
resources away from permitting other infrastructure projects—such as new and expanding power facilities—in order to comply with their compliance burdens under the
federal plan. See App.C-15–16 (Crowder Decl. ¶43). That is no small matter: stopping or slowing progress on other critical infrastructure projects harms the public
welfare.
The federal plan inflicts still other economic injuries on the petitioner States.
It will severely undermine the States’ electricity-generation capacity and destabilize
the States’ power grids. See, e.g., App.B-3–6 (Hodanbosi Decl. ¶¶7–15); App.D-3–8,
10–11 (Lane Decl. ¶¶5–14, 17–19, 22); App.E-4–6 (Farah Decl. ¶¶10–15); PJM Interconnection, Energy Transition in PJM: Resource Retirements, Replacements & Risk
(Feb. 24, 2023), https://perma.cc/PQA7-9P6K; see also North American Electric Reliability Corporation, 2023 Summer Reliability Assessment Infographic (May 2023) at
6, https://perma.cc/A9G6-B398. PJM Interconnection—an entity that coordinates
power in Ohio, West Virginia, and parts of Indiana—specifically identified the federal
plan as a potential catalyst, among others, for “a significant amount of generation
retirements within a condensed time frame.” Energy Transition in PJM: Resource
Retirements, Replacements & Risk at 7.
25
These electric-grid emergencies are not distant possibilities. One such emergency recently came to pass. App.B-5–6, 14–21 (Hodanbosi Decl. ¶13 and Exhibit A).
In December 2022, PJM notified the United States Department of Energy that impending cold weather would threaten the electric grid that PJM operates and potentially cause an electricity shortage. Id. The Department responded by issuing an
Emergency Order that temporarily suspended air-quality regulations and capacity
limits on power sources, thus narrowly avoiding a disaster. Id. These emergencies
are certain to increase in frequency as the federal plan forces more electricity generators into early retirement. And they threaten the States’ operations and industries,
and could leave the States’ citizens unable to heat or cool their homes affordably, if
at all. See, e.g., App.D-3, 4–11 (Lane Decl. ¶¶5, 7–22).
Finally, the EPA’s attempt at top-down control contradicts its obligation to respect the States’ sovereign authority to regulate air quality within their borders under the Act. This “dictatorial” approach impedes the States’ sovereignty by elevating
the EPA to the role of primary regulator. Texas, 2023 U.S. App. LEXIS 13898 at *28;
Texas, 829 F.3d at 434. A stay will protect the States’ sovereignty from unlawful
infringement while this case is decided on the merits.
III.
Staying the federal plan will promote the public interest and will not
substantially harm others.
The “public interest lies in a correct application of the federal constitutional
and statutory provisions upon which the claimants” seek relief. Coal. to Def. Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006) (Sutton, J.) (quotations
omitted). That is why the balance of the equities and the public interest merge when
26
the government is a party: enjoining unlawful government action inflicts no legally
cognizable harm. See Nken, 556 U.S. at 435. Taken independently, too, both of these
factors counsel in favor of a stay.
For one thing, the EPA faces no undue harm if the federal plan is stayed. The
EPA is responsible for delaying the implementation of the 2015 air-quality standards.
It sat for several years on the various state-plan submissions—well past the eighteenmonth deadline by which it was to act—before denying them and imposing the federal
plan. Any delay is thus a problem of the EPA’s own doing. True enough, a stay would
reduce the incentives to bring emissions into immediate compliance with the federal
plan. But if the plan is illegal, the States should not be forced to comply with it. And
the EPA’s own actions, exempting a dozen States from the plan and over 75% of the
emissions it sought to reduce, confirms that a pause while this case is decided on the
merits will not harm the EPA or the country at large. At any rate, covered sources
within the States would remain subject to the prior good-neighbor regimes, so this is
not an all-or-nothing scenario.
Staying the federal plan also promotes the public interest in applying the law
“correct[ly].” Biden, 57 F.4th at 556 (quotations omitted). Because the federal plan
is arbitrary and capricious, staying its implementation is one step closer to applying
the law correctly. Further, the public has a strong interest in having reliable electricity. The affected sources, which includes providers of natural gas, “provide power
to … homes, farms, businesses and industries.” Hoosier Energy Rural Elec. Coop.,
Inc. v. John Hancock Life Ins. Co., 588 F. Supp. 2d 919, 934 (S.D. Ind. 2008). If
27
sources’ ability to provide reliable electricity “is imperiled,” the States may lose the
“ability to fulfill [their] mission to the public.” Id. After all, “a steady supply of electricity”—for example, to heat and cool facilities housing “the elderly, hospitals and
day care centers”—is “critical.” Sierra Club v. Ga. Power Co., 180 F.3d 1309, 1311
(11th Cir. 1999) (per curiam). Staying a rule that threatens grid reliability thus
serves the public interest.
28
CONCLUSION
The Court should stay the federal-implementation plan pending judicial review.
October 2023
Respectfully submitted,
DAVE YOST
Ohio Attorney General
MATHURA J. SRIDHARAN*
*Counsel of record
ZACHERY P. KELLER
Deputy Solicitors General
30 East Broad Street, 17th Floor
(6l4) 466-8980
mathura.sridharan@ohioago.gov
Counsel for the State of Ohio
THEODORE E. ROKITA
Attorney General of Indiana
PATRICK MORRISEY
Attorney General of West Virginia
JAMES A. BARTA
Deputy Solicitor General
Office of the Indiana Attorney General
IGC-South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
(317) 232-0709
James.Barta@atg.in.gov
LINDSAY S. SEE
Solicitor General
MICHAEL WILLIAMS
Principal Deputy Solicitor General
Office of the West Virginia Attorney
General
State Capitol, Bldg 1, Room E-26
Charleston, WV 25305
(682) 313-4550
Lindsay.S.See@wvago.gov
Counsel for State of Indiana
Counsel for State of West Virginia
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.