Emergency Application — United States Steel Corporation, Applicant v. Environmental Protection Agency, et al.
Supreme Court briefOct 26, 2023
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Case No. ______
In the Supreme Court of the United States
UNITED STATES STEEL CORPORATION,
Applicant,
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN, ADMINISTRATOR,
Respondents.
On Application for Stay to the Honorable John G. Roberts, Jr., Chief
Justice and Circuit Justice for the District of Columbia Circuit
EMERGENCY APPLICATION FOR STAY OF FINAL
AGENCY ACTION PENDING JUDICIAL REVIEW
October 26, 2023
John D. Lazzaretti
Counsel of Record
Squire Patton Boggs (US) LLP
1000 Key Tower
127 Public Square
Cleveland, OH 44114
216.479.8350
john.lazzaretti@squirepb.com
Counsel for United States Steel
Corporation
PARTIES TO THE PROCEEDINGS BELOW
The proceeding below is United States Steel Corporation v. EPA, et al.,
Case No. 23-1207 (D.C. Cir.). The petitioner is United States Steel Corporation.
The respondents are the United States Environmental Protection Agency and
Michael S. Regan, U.S. EPA Administrator.
This case has been consolidated with the following D.C. Circuit cases under
lead case 23-1157:
No. 23-1157, Utah v. EPA
Petitioners: State of Utah, by and through its Governor, Spencer J. Cox, and
its Attorney General, Sean D. Reyes
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Intervenors: City of New York; Commonwealth of Massachusetts;
Commonwealth of Pennsylvania; District of Columbia; Harris County, Texas;
State of Connecticut; State of Delaware; State of Illinois; State of Maryland;
State of New Jersey; State of New York; State of Wisconsin; Air Alliance
Houston; Appalachian Mountain Club; Center for Biological Diversity;
Chesapeake Bay Foundation; Citizens for Pennsylvania’s Future; Clean Air
Council; Clean Wisconsin; Downwinders at Risk; Environmental Defense
Fund; Louisiana Environmental Action Network; Sierra Club; Southern Utah
Wilderness Alliance; Utah Physicians for a Healthy Environment
No. 23-1181, Kinder Morgan v. EPA
Petitioner: Kinder Morgan, Inc.
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Intervenors: City of New York; Commonwealth of Massachusetts;
Commonwealth of Pennsylvania; District of Columbia; Harris County, Texas;
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State of Connecticut; State of Delaware; State of Illinois; State of Maryland;
State of New Jersey; State of New York; State of Wisconsin;
No. 23-1183, Ohio v. EPA
Petitioners: State of Ohio; State of West Virginia; State of Indiana
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Intervenors: City of New York; Commonwealth of Massachusetts;
Commonwealth of Pennsylvania; District of Columbia; Harris County, Texas;
State of Connecticut; State of Delaware; State of Illinois; State of Maryland;
State of New Jersey; State of New York; State of Wisconsin
No. 23-1190, Am. Forest & Paper Assoc. v. EPA
Petitioner: American Forest & Paper Association
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Intervenors: City of New York; Commonwealth of Massachusetts;
Commonwealth of Pennsylvania; District of Columbia; Harris County, Texas;
State of Connecticut; State of Delaware; State of Illinois; State of Maryland;
State of New Jersey; State of New York; State of Wisconsin
No. 23-1191, Midwest Ozone Group v. EPA
Petitioner: Midwest Ozone Group
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1193, Interstate Natural Gas Assoc. of Am. v. EPA
Petitioners: Interstate Natural Gas Association of America; American
Petroleum Institute
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
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No. 23-1195, Assoc. Electric Coop., Inc. v. EPA
Petitioners: 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; Portland Cement Association
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1199, Nat’l Mining Assoc’n. v. EPA
Petitioner: National Mining Association
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1200, AISI v. EPA
Petitioner: American Iron and Steel Institute
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1201, Wisconsin v. EPA
Petitioner: State of Wisconsin
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Intervenors: City Utilities of Springfield, Missouri, Sierra Club, Midwest
Ozone Group
No. 23-1202, Enbridge (U.S.) Inc. v. EPA
Petitioner: Enbridge (U.S.) Inc.
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
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No. 23-1203, Am. Chem. Council v. EPA
Petitioners: American Chemistry Council; American Fuel & Petrochemical
Manufacturers
Respondents: United States Environmental Protection Agency
No. 23-1205, TransCanada Pipeline USA Ltd. v. EPA
Petitioner: TransCanada Pipeline USA Ltd.
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1206, Hybar LLC v. EPA
Petitioner: Hybar LLC
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1208, Union Elec. Co. v. EPA
Petitioner: Union Electric Company, d/b/a Ameren Missouri
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1209, Nevada v. EPA
Petitioner: State of Nevada
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-1211, Arkansas League of Good Neighbors v. EPA
Petitioner: Arkansas League of Good Neighbors
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
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Petitions challenging the same final rule have also been filed in the following Circuit
Courts:
Fifth Circuit
No. 23-60300, Texas v. EPA
Petitioners:
State of Texas; Texas Commission on Environmental Quality; Public Utility
Commission of Texas; Railroad Commission of Texas; Association of
Electric Companies of Texas; BCCA Appeal Group; Texas Chemical
Council; Texas Oil & Gas Association; Luminant Generation Co., LLC;
Coleto Creek Power, LLC; Ennis Power Co., LLC; Hays Energy, LLC;
Midlothian Energy, LLC; Oak Grove Management Company, LLC; Wise
County Power Company, LLC; State of Louisiana; Louisiana Department of
Environmental Quality; State of Mississippi; Mississippi Department of
Environmental Quality; Mississippi Power Company; Texas Lehigh Cement
Company; Louisiana Public Service Commission; Energy Transfer, LP;
Entergy Louisiana, LLC; Cleco Corporate Holdings, LLC; Louisiana Energy
& Power Authority; Lafayette Consolidated Government / Lafayette Utilities
System; NACCO Natural Resources Corporation; Mississippi Lignite Mining
Company; Louisiana Chemical Association; Louisiana Mid-Continent Oil
and Gas Association; Kinder Morgan, Inc.
Respondents:
United States Environmental Protection Agency; Michael S. Regan,
Administrator, U.S. EPA
Intervenors:
Air Alliance Houston; Clean Wisconsin; Downwinders at Risk; Louisiana
Environmental Action Network; Sierra Club
Sixth Circuit
No. 23-3605, Kentucky Energy & Envt. Cabinet v. EPA
Petitioner: Kentucky Energy and Environment Cabinet
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
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No. 23-3624, Kentucky v. EPA
Petitioner: Commonwealth of Kentucky
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-3641, Energy Transfer LP v. EPA
Petitioner: Energy Transfer LP
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-3647, Buckeye Power, Inc. v. EPA
Petitioners: Buckeye Power, Inc.; Ohio Valley Electric Corporation
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Seventh Circuit
No. 23-2510, Energy Transfer LP v. EPA
Petitioner: Energy Transfer LP
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-2511, Energy Transfer LP v. EPA
Petitioner: Energy Transfer LP
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Eighth Circuit
No. 23-2769, Arkansas v. EPA
Petitioners: State of Arkansas; Arkansas Department of Energy and the
Environment, Division of Environmental Quality
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Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-2771, Missouri v. EPA
Petitioner: State of Missouri
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-2773, Energy Transfer LP v. EPA
Petitioner: Energy Transfer LP
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-2774, Energy Transfer LP v. EPA
Petitioner: Energy Transfer LP
Respondent: United States Environmental Protection Agency
Ninth Circuit
No. 23-1098, Nevada Cement Co. v. EPA
Petitioner: Nevada Cement Company
Respondent: United States Environmental Protection Agency
Tenth Circuit
No. 23-9551, Tulsa Cement, LLC v. EPA
Petitioner: Tulsa Cement LLC, d/b/a Central Plains Cement Company, LLC
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-9557, PacfiCorp v. EPA
Petitioners: PacifiCorp; Deseret Generation & Transmission Cooperative;
Utah Municipal Power Agency; Utah Associated Municipal Power Systems
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Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-9561, Oklahoma v. EPA
Petitioners: State of Oklahoma; Oklahoma Department of Environmental
Quality
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-9569, Energy Transfer LP v. EPA
Petitioners: Energy Transfer LP
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
Eleventh Circuit
No. 23-12528, Alabama v. EPA
Petitioners: State of Alabama; Attorney General, State of Alabama; Alabama
Department of Environmental Management
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
No. 23-12531, Alabama Power Co. v. EPA
Petitioners: Alabama Power Company, Powersouth Energy Cooperative
Respondents: United States Environmental Protection Agency; Michael S.
Regan, Administrator, U.S. EPA
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RULE 29.6 CORPORATE DISCLOSURE STATEMENT
Pursuant to Sup. Ct. R. 29.6, Applicant United States Steel Corporation
states:
United States Steel Corporation is organized under the laws of Delaware and
its corporate headquarters are located at 600 Grant Street, Pittsburgh, PA 15219.
United States Steel Corporation produces iron and steel products for the
automotive, construction, appliance, energy, containers, and packaging industries.
United States Steel Corporation is a publicly held company that has no
parent corporation and that no publicly held company owns 10% or more of U. S.
Steel’s stock.
Dated: October 26, 2023
Respectfully submitted,
/s/ John D. Lazzaretti
John D. Lazzaretti
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TABLE OF CONTENTS
Parties to the Proceedings Below............................................................................... i
Rule 29.6 Corporate Disclosure Statement .............................................................. ix
Table of Contents .......................................................................................................x
Table of Authorities ............................................................................................... xiii
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: ....................1
Introduction ................................................................................................................2
Interest of the Applicant.............................................................................................4
Opinion Below ...........................................................................................................5
Jurisdiction .................................................................................................................5
Pertinent Statutory and Regulatory Provisions ..........................................................5
I.
The Clean Air Act Gives States the Primary Role in Regulating Interstate
Transport of Ozone. ...............................................................................................6
II. When EPA Promulgates a FIP, It Must Comply with the Clean Air Act. ....7
III. EPA Disapproved 23 SIPs en masse in a Rush to Promulgate the Plan. ......8
IV. EPA’s Struggles to Understand and Rationally Regulate Iron and Steel. ....9
Procedural Posture ...................................................................................................12
Standard of Review ..................................................................................................13
Reasons to Grant the Application ............................................................................14
I.
U. S. Steel is Likely to Prevail on the Merits. .............................................14
A. EPA Lacked Authority for the Plan and Cannot Sustain What is Left. ...14
B.
The Rule Violates the Clean Air Act and Cooperative Federalism. ........16
C.
EPA Did Not Support the Regulation of Iron and Steel Mills.................18
D. The Iron and Steel Requirements Were Not Subject to Notice and
Comment. .........................................................................................................19
E. EPA’s “Test-And-Set” Approach Reheat Furnaces Is Illegal and Lacks
Record Support. ...............................................................................................20
II.
Absent a Stay, U. S. Steel Will Suffer Imminent Irreparable Harm. ..........23
III. A Stay Is in the Public Interest. ...................................................................25
Conclusion ...............................................................................................................27
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Service List ..............................................................................................................30
Appendix
Federal “Good Neighbor Plan” for the 2015 Ozone National
Ambient Air Quality Standards, 88 Fed. Reg. 34,353
(June 5, 2023) ...................................................................................... App.001
Order, U. S. Steel v. EPA, Case Nos. 23-1157 (lead) and 231207 (D.C. Cir. Oct. 11, 2023) ............................................................ App.266
Order, Utah v. EPA, Case No. 23-1157 (lead) (D.C. Cir. Sept.
25, 2023) .............................................................................................. App.268
42 U.S.C. § 7407 (2021) ................................................................................ App.270
42 U.S.C. § 7410 (2011) ................................................................................ App.276
42 U.S.C. § 7607 (2010) ................................................................................ App.285
Application for Stay, Ohio, et al. v. EPA, Case No. 23A349 ........................ App.291
Application for Stay, Kinder Morgan, Inc. et al. v. EPA, Case
No. 23A350.......................................................................................... App.327
Application for Stay, American Forest & Paper Assoc., et al. v.
EPA, Case No. 23A351 ....................................................................... App.366
Declaration of Paul Balserak in Support of Application for
Stay, American Forest & Paper Assoc., et al v. EPA,
Case No. 23A351 ................................................................................. App.414
U. S. Steel Comments on the Federal “Good Neighbor Plan”
(June 21, 2022) .................................................................................... App.418
EPA, Screening Assessment of Potential Emissions Reductions,
Air Quality Impacts, and Costs from Non-EGU
Emissions Units for 2026 (Feb. 28, 2022, amended
March 29, 2022)................................................................................... App.532
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Excerpt from Federal “Good Neighbor Plan” for the 2015
Ozone National Ambient Air Quality Standards,
Response to Public Comments on Proposed Rule............................... App.558
United States Steel Corporation Petition for Administrative
Reconsideration and Stay (Aug. 4, 2023)............................................ App.571
Declaration of Alexis Piscitelli in Support of Motion for Stay,
U. S. Steel v. EPA, Case No. 23-1207 (D.C. Cir.) ............................... App.714
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TABLE OF AUTHORITIES
Cases
Page(s)
Ala. Ass’n of Realtors v. Eept’ of HHS,
549 U.S. __, 141 S. Ct. 2485 (2021)................................................................... 26
Alaska Dept. of Envt’l. Conserv. v. EPA,
540 U.S. 461 (2004) .............................................................................................. 7
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ..............................................................................6, 8, 17, 18
Hollingsworth v. Perry,
558 U.S. 183 (2010) ............................................................................................ 14
League of Women Voters of U.S. v. Newby,
838 F.3d 1 (D.C. Cir. 2016) ................................................................................ 26
Mexichem Specialty Resins, Inc. v. EPA,
787 F.3d 544 (D.C. Cir. 2015) ............................................................................ 24
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001) .......................................................................... 16
Motor Vehicle Mfrs. Ass'n. of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co.,
463 U.S. 29 (1983) ............................................................................14, 15, 19, 21
Murray Energy Corp. v. EPA,
577 U.S. 1127 (2016) ............................................................................................ 5
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................ 13
Nken v. Mukasey,
555 U.S. 1042 (2008) ............................................................................................ 5
Small Ref. Lead Phase-Down Task Force v. EPA,
705 F.2d 508 (D.C. Cir. 1983) ............................................................................ 20
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016) ................................................................................ 7
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Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) ............................................................................................ 24
United Steelworkers v. Marshall,
647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) .................. 20
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ............................................................................................ 16
Wyoming v. EPA,
78 F.4th 1171 (10th Cir. 2023) ........................................................................... 17
Statutes
5 U.S.C. § 705 ............................................................................................................ 5
28 U.S.C. § 1254(1) ................................................................................................... 5
28 U.S.C. § 1651(a) ................................................................................................... 5
28 U.S.C. § 2101(f) .................................................................................................... 5
42 U.S.C. §7407(a) .............................................................................................. 6, 16
42 U.S.C. §7410(a)(1) ............................................................................................ 6, 8
42 U.S.C. §7410(a)(2)(D) .......................................................................................... 6
42 U.S.C. §7410(c)(1) ............................................................................12, 15, 17, 18
42 U.S.C. §7410(d)(3)-(6) ....................................................................................... 22
42 U.S.C. §7410(d)(7).............................................................................................. 22
42 U.S.C. §7410(k)(2) and (3) ................................................................................... 7
42 U.S.C. § 7426(b) ................................................................................................. 23
42 U.S.C. § 7607(d) .......................................................................................7, 20, 22
42 U.S.C. § 7607(d)(1)(B) ......................................................................................... 7
42 U.S.C. § 7607(d)(6)(C) .................................................................................15, 21
42 U.S.C. §7607(h) .................................................................................................. 22
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Other Authorities
40 CFR 42.1235(b)(1)(ii)(A)(1)-(7)......................................................................... 22
40 CFR 52.43 .................................................................................................1, 20, 27
40 CFR 52.43(d)(3) .................................................................................................. 21
40 CFR 52.43(d)(4)(iii) ............................................................................................ 23
40 CFR 52.43(d)(v) .................................................................................................. 23
40 CFR 52.45 ....................................................................................................... 1, 27
80 Fed. Reg. 65,292 (Oct. 26, 2015).......................................................................... 8
87 Fed. Reg. 20,036 (April 6, 2022) ........................................................9, 11, 20, 23
88 Fed. Reg. 36,654 (June 5, 2023)
.............................................................. 1, 9, 10, 11, 14, 18, 19, 20, 21, 22, 23, 25
Supreme Court Rule 23 .............................................................................................. 5
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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:
Applicant United States Steel Corporation (“U. S. Steel”) respectfully
requests a stay of the United States Environmental Protection Agency’s (“EPA’s”)
final rule: Federal “Good Neighbor Plan” for the 2015 Ozone National Ambient
Air Quality Standards, 88 Fed. Reg. 36,654, App.1 (June 5, 2023) (“Plan”) as it
applies to reheat furnaces (40 CFR 52.43) and boilers at iron and steel mills (40
CFR 52.45).
U. S. Steel moved for a stay pending judicial review in the United States
Court of Appeals for the District of Columbia Circuit, which was denied on
October 11, 2023. App.266. Previously, the D.C. Circuit denied motions to stay
the Plan filed by petitioners in other cases that have been consolidated with U. S.
Steel’s case. See App.268. Three applications for stay of the Plan were submitted
to this Court following that prior order. See Ohio, et al. v. EPA, Case No. 23A349,
App.291 (“Ohio Application”); Kinder Morgan, Inc., et al. v. EPA, Case No.
23A350, App.327 (“Kinder Morgan Application”); American Forest & Paper
Assoc., et al. v. EPA, Case No. 23A351, App.366 (“AF&P Application”).1
Responses to these applications have been requested by October 30, 2023.
1
For ease of use, the appendices to these applications are not included in the
Appendix unless directly cited in this Application.
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U. S. Steel agrees with and incorporates by reference these other applications for
stay and submits its own application to raise additional grounds for stay particular
to U. S. Steel and that further support stay of the iron and steel provisions in the
Plan.
INTRODUCTION
This case arises from EPA’s attempt to take over the States’ role as the
primary regulator of interstate transport of pollutants that contribute to ozone by
simultaneously disapproving the States’ plans and imposing the Agency’s own
comprehensive Plan for 23 “upwind” States. As other applicants have raised, the
Plan is legally and factually unsound and likely to be vacated in its entirety. It was
built on the premise that EPA could impose the Plan on every State that contributes
significantly to downwind ozone concentrations. This was a foundation of sand
that has now washed away. Seven Circuit Courts have stayed EPA’s disapprovals
of the state implementation plans for 12 States—a statutory prerequisite for EPA to
promulgate the Plan for those States. In recognition, EPA has issued two interim
final rules staying the Plan in these States. Yet while EPA has itself stayed the
Plan in more than half the States to which it was designed to apply, EPA insists on
maintaining its edifice on the backs of the remaining 11 States. The result is an
inconsistent and inequitable patchwork of regulations that finds no support in the
administrative record. Even as originally intended, the Plan was unsound and
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likely to be vacated because it improperly usurped the States’ primary authority to
regulate interstate transport of ozone in violation of fundamental cooperative
federalism principles embodied in the Clean Air Act. In addition, EPA acted
arbitrarily and capriciously when it included iron and steel requirements in the Plan
for which EPA lacked a factual foundation and that violate basic requirements of
the Clean Air Act.
While the entire Plan is likely to be vacated, the legal and factual infirmities
in the iron and steel regulations are particularly stark. The very inclusion of iron
and steel in the Plan was due to EPA grossly overstating the industry’s emissions
and purported impact on downwind states. Furthermore, in the Plan, EPA vastly
overcounts the emissions reductions that could be achieved from this industry
when it initially “screened” for sources to regulate. EPA has acknowledged the
errors in its screening assessment but never corrected them. The result is a Plan
that arbitrarily and capriciously regulates iron and steel without a factual basis for
doing so. EPA then ran into similar problems in developing emission regulations
for iron and steel. Due to fundamental misunderstandings of the emissions control
technologies that could apply, EPA proposed emission limitations that could not be
supported by the record. Again, EPA acknowledged these flaws in finalizing the
Plan, but rather than withdraw all of the standards that it could not support, EPA
attempted a workaround for two sources, reheat furnaces and boilers, by
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promulgating part of the emission limitations now, with the rest to be filled in
later—by Agency fiat and not through notice-and-comment rulemaking—as it
obtains new information. This is both arbitrary and capricious and a violation of
the plain language of the Clean Air Act.
The result is a rule that imposes millions of dollars in preparation and
compliance costs on U. S. Steel, which it now incurs and continues to incur, to
prepare for rule that is likely never to be vacated after judicial review. On the
other side of the equation, a stay pending judicial review, particularly of the iron
and steel requirements, will have no appreciable impact on the environment of
public welfare. While costs are being incurred now to implement the Plan,
emission reductions from iron and steel do not occur under the Plan until 2026, at
the earliest. A stay of the Plan pending judicial review is therefore justified.
INTEREST OF THE APPLICANT
United States Steel Corporation produces iron and steel products for the
automotive, construction, appliance, energy, containers, and packaging industries.
It is directly regulated by the Plan and, absent a stay will be required to incur
millions in engineering and compliance costs while the Plan is pending judicial
review. U. S. Steel will not be able to recover these costs following a favorable
ruling, nor will it be able to seek remedy for the competitive disadvantages, lost
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production capacity, and additional permitting burdens U. S. Steel will be forced to
incur while judicial review is pending.
OPINION BELOW
On October 13, 2023, the D.C. Circuit issued an Order denying U. S. Steel’s
motion for stay. App.266.
JURISDICTION
The D.C. Circuit’s judgment with respect to the Rule will be subject to
review by this Court under 28 U.S.C. § 1254(1). The Court therefore has
jurisdiction to entertain and grant a request for a stay pending review under
28 U.S.C. § 2101(f). The Court also has authority to issue a stay pursuant to
5 U.S.C. § 705, as well as under 28 U.S.C. § 1651(a) and U.S. Supreme Court Rule
23. See, e.g., Murray Energy Corp. v. EPA, 577 U.S. 1127 (2016) (staying EPA’s
Clean Power Plan while a petition for judicial review was pending in the D.C.
Circuit); Nken v. Mukasey, 555 U.S. 1042 (2008) (staying agency action while
petition for review was pending before the Fourth Circuit).
PERTINENT STATUTORY AND REGULATORY PROVISIONS
The pertinent statutory and regulatory provisions are provided in the
included Appendix. Since other stay applications have summarized the applicable
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statutory and regulatory provisions,2 U. S. Steel provides only a short summary
below of the elements most significant to its stay application.
I.
The Clean Air Act Gives States the Primary Role in Regulating Interstate
Transport of Ozone.
Cooperative federalism is a “core principle” of the Clean Air Act. EPA v.
EME Homer City Generation, L.P., 572 U.S. 489, 511, n.14 (2014). For the
National Ambient Air Quality Standards (“NAAQS”) program, this principle is
embodied in a basic division of labor: while EPA sets ambient air quality
standards for pollutants like ozone, states have the “primary responsibility” for
assuring compliance in “the entire geographic area comprising such State.”
42 U.S.C. §7407(a). This includes assuring compliance with the so-called “Good
Neighbor” requirement in the Act that prohibits “any source or other type of
emissions activity within the State from emitting any air pollutant in amounts
which will—(I) contribute significantly to nonattainment in, or interfere with
maintenance by, any other State with respect to any such national primary or
secondary ambient air quality standard….” 42 U.S.C. §7410(a)(2)(D).
States set out their approach to compliance with the NAAQS requirements,
including the Good Neighbor requirements, in a state implementation plan (“SIP”).
42 U.S.C. §7410(a)(1). EPA has a role in reviewing SIPs, but it is limited. EPA
2
Ohio Application at 2-13, App.299-310; Kinder Morgan Application at 4-9,
App.339-344; AF&P Application at 1-4, App.384-387.
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first has 12 months to review the SIP for completeness, then one year to determine
whether it meets the requirements of the Clean Air Act. 42 U.S.C. §7410(k)(2)
and (3). These “ministerial” reviews are not for EPA to substitute its judgment for
the State’s. Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016) (quotations omitted).
EPA looks only to whether the SIP is “reasonably moored to the Act’s provisions”
and “based on a reasoned analysis.” Alaska Dept. of Envt’l. Conserv. v. EPA, 540
U.S. 461, 485 and 490 (2004) (quotations omitted). If it is, EPA must approve it.
Id. at §7410(k)(3). Only if a SIP is incomplete or does not meet the Act’s
requirements can EPA impose its own regulations in a State through a federal
implementation plan (“FIP”). Id. at §7410(c)(1). EPA has two years to do this,
during which the State can still correct deficiencies in its SIP and bar EPA from
promulgating a FIP. Id.
II.
When EPA Promulgates a FIP, It Must Comply with the Clean Air Act.
The Clean Air Act subjects “the promulgation or revision” of a FIP to the
rulemaking requirements of 42 U.S.C. § 7607(d). 42 U.S.C. § 7607(d)(1)(B).
These include establishing a public docket of the factual data and methods on
which the FIP is based and the major legal interpretations and policy
considerations underlying the proposed FIP; opportunity for public comment; and
a prohibition against promulgating any requirement “based (in part or whole) on
-7-
any information or data which has not been placed in the docket as of the date of
such promulgation.” Id. at § 7607(d)(3).
Further, in determining emission limitations, EPA’s discretion is bounded by
the same substantive requirements of the Clean Air Act as the State would have
been. For example, to comply with the Good Neighbor requirements, EPA cannot
“require a State to reduce its output of pollution by more than is necessary to
achieve attainment in every downwind State to which it is linked.” EME Homer,
572 U.S. at 521-22. To do so would go beyond the statutory authority of the Good
Neighbor requirements and constitutes “unlawful over-control.” Id. at 522.
III.
EPA Disapproved 23 SIPs en masse in a Rush to Promulgate the Plan.
On October 1, 2015, EPA promulgated revised NAAQS for ozone. 80 Fed.
Reg. 65,292 (Oct. 26, 2015). States were thus obligated to submit SIP revisions to
EPA by October 1, 2018. See 42 U.S.C. §7410(a)(1). Many states did so, but
while they were found complete, EPA took no further action for years.
While EPA was holding these SIPs in stasis, it developed its own Plan and,
in early 2022, proposed to disapprove 23 State SIPs3 and its own “nationwide”
3
87 Fed. Reg. 9545 (Feb. 22, 2022) (Alabama, Mississippi, Tennessee); 87 Fed.
Reg. 9798 (Feb. 22, 2022) (Arkansas, Louisiana, Oklahoma, Texas); 87 Fed. Reg.
9838 (Feb. 22, 2022) (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin);
87 Fed. Reg. 9498 (Feb. 22, 2022) (Kentucky); 87 Fed. Reg. 9463 (Feb. 22, 2022)
(Maryland); 87 Fed. Reg. 9533 (Feb. 22, 2022) (Missouri); 87 Fed. Reg. 9484
(Feb. 22, 2022) (New York, New Jersey); 87 Fed. Reg. 9516 (Feb. 22, 2022) (West
Virginia); 87 Fed. Reg. 31,443 (May 24, 2022) (California); 87 Fed. Reg. 31,485
-8-
Plan in quick succession. 87 Fed. Reg. 20,036, 20,073 (Apr. 6, 2022). Many
commenters, including U. S. Steel warned EPA that its action was unlawful. See,
e.g. 88 Fed. Reg. at 36,672; U. S. Steel Comments, at 111-113, App.528-530.4
Despite these warnings, EPA finalized both actions in early 2023. 88 Fed. Reg.
9,336 (Feb. 13, 2023) (“SIP Disapproval”); 88 Fed. Reg. at 36,654 (published June
5, 2023 but signed March 15, 2023).
IV.
EPA’s Struggles to Understand and Rationally Regulate Iron and Steel.
EPA’s rush to finalize the Plan for iron and steel created significant
problems. When EPA proposed the Plan, it never reached out to the industry, and
had instead assembled little information on the emissions control technologies
available to the industry. As a result, when it conducted the first step in its
assessment, a “Screening Assessment”5 to identify which industries to subject to
regulation, EPA vastly overestimated the emissions and emissions reduction
potential of numerous operations later found to have no emissions reduction
potential. See 88 Fed. Reg. at 36,827 and 36,833. This was a critical error, since
the purpose of the Screening Assessment was to identify industries with potentially
(May 24, 2022) (Nevada); 87 Fed. Reg. 31,470 (May 24, 2022) (Utah); 87 Fed.
Reg. 31,495 (May 24, 2022) (Wyoming).
4
For ease of use, exhibits to U. S. Steel’s comments are not included in the
Appendix.
5
Screening Assessment of Potential Emission Reductions, Air Quality Impacts,
and Costs from Non-EGU Emissions Units for 2026, App. 532 (Feb. 28, 2022).
-9-
significant emissions and then screen out those industries that lacked significant
emissions reduction potential. Screening Assessment at 2, App.533. Yet while
EPA acknowledged the inaccuracy of its assessment of the iron and steel industry
in the Plan, its solution was simply to remove those emission units that it had
miscounted from regulation in the final Plan. 88 Fed. Reg. at 36,827. EPA never
corrected its Screening Assessment to establish whether iron and steel met the
criteria for regulation in the first place. See Response to Comments (“RTC”), at
128, App.570 (declining to revisit the Screening Assessment).
EPA’s lack of adequate technical information also plagued the Agency’s
efforts to set emission limitations for iron and steel in the Plan. The Plan attempts
to establish emission limitations for two sources at iron and steel facilities: reheat
furnaces and boilers. But here too, EPA lacked sufficient information to establish
emission limitations for all units. Rather than omit these emission units from the
Plan, however, EPA has attempted workarounds for its lack of record support.
For reheat furnaces, rather than promulgate any emission limitations at all,
the Plan promulgates a process to establish future emission limitations while
avoiding notice-and-comment rulemaking on the final requirements. 88 Fed. Reg.
at 36,879, 40 CFR 52.43(d)(3). Specifically, iron and steel facilities are to install
costly pollution controls designed to reduce emissions by “at least 40%” from a
baseline rate (which is itself to be established in the future), and then use a “test-
- 10 -
and-set” approach (which is also to be established in the future) to support a final
emission limit, which EPA will set by electronic notice. Id. at 36,818 and -28.
This entire process was developed without opportunity for public comment and
provides no criteria to cabin the arbitrary exercise of the Administrator’s final
decision-making authority, nor does it include any process to challenge the
Administrator’s final decision.
For boilers, EPA proposed to regulate units that exceeded an annual
emissions threshold. 87 Fed. Reg. at 20,145. In the final Plan, EPA, without
notice or explanation, changed to a “design capacity” standard that EPA
acknowledges “captured more units than the EPA intended.” 88 Fed. Reg. at
36,819. This resulted in the inclusion of many boilers that do not operate near their
design capacity, have little emissions impact, and have technical aspects that
render EPA’s chosen pollution control technologies infeasible or cost prohibitive.
EPA added exemptions to the Plan, which were also not subject to notice and
comment, in an apparent attempt to remove boilers for which EPA lacked the
technical grounds to regulate, see id. at 36,833, but these exemptions do not
address many of the unsuspected, newly regulated boilers, leaving many boilers
still subject to the Plan without a valid technical basis for their inclusion.
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PROCEDURAL POSTURE
Numerous petitioners have challenged both EPA’s disapprovals of
individual SIPs and the Plan. To date, seven Circuits have stayed EPA’s SIP
Disapproval for 12 States.6 An additional motion for stay is pending.7 Since SIP
disapproval is a prerequisite for EPA to promulgate its Plan, see 42 U.S.C.
§7410(c)(1), EPA has recognized it must stay the Rule for States in which its SIP
Disapproval is stayed, and has promulgated two interim final rules staying the Plan
for these 12 States.8 For the remaining States subject to the Rule, EPA has taken
no action, and appears set on applying the Rule as promulgated.
U. S. Steel petitioned for reconsideration and stay of the Plan on August 4,
2023. App.571. EPA acknowledged receipt on August 14, 2023, but has not
otherwise responded to U. S. Steel’s petition.
6
Unpublished Order, Texas v. EPA, No. 23-60069, ECF 269-1 (5th Cir. May 1,
2023); Order, Arkansas v. EPA, No. 23-1320, ECF 5280996 (8th Cir. May 25,
2023); Order, Missouri v. EPA, No. 23-1719, ECF 5281126 (8th Cir. May 26,
2023); Unpublished Order, Texas v. EPA, No. 23-60069, ECF 359-2 (5th Cir. June
8, 2023); Nevada Cement Co. v. EPA, No. 23-682, ECF 27.1 (9th Cir. July 3,
2023); Order, ALLETE, Inc. v. EPA, No. 23-1776 (8th Cir. July 5, 2023); Order,
Kentucky v. EPA, No. 23-3216, ECF 39-2 (6th Cir. July 25, 2023); Order, Utah v.
EPA, No. 23-9509, ECF 010110895101 (10th Cir. July 27, 2023); Interim Stay
Order, West Virginia v. EPA, No. 23-01418, ECF 39 (4th Cir. Aug. 10, 2023);
Order, Alabama v. EPA, No. 23-11173 (11th Cir. Aug. 17, 2023).
7
See Ohio v. EPA, Case No. 23-1183 (D.C. Cir).
8
See 88 Fed. Reg. 49,295 (July 31, 2023); 88 Fed. Reg. 67,102 (Sept. 9, 2023).
- 12 -
At the same time, cases have been filed challenging the Plan in several
Circuits. See Parties to the Proceedings Below, supra. U. S. Steel’s challenge has
been consolidated with others filed in the D.C. Circuit. Id. Several petitioners
moved for stay of the Plan, including U. S. Steel. In late September, a divided
panel for the D.C. Circuit Court of Appeals denied several consolidated motions
for stay without opinion, App.268, and on October 11, 2023, a panel of the D.C.
Circuit denied U. S. Steel’s motion for stay. App.266.
STANDARD OF REVIEW
A stay pending judicial review is an exercise of judicial discretion guided by
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) (quotations omitted). When the
government is the opposing party, however, the third and fourth factors merge. Id.
at 435.
Similarly, in issuing a stay pending a petition for certiorari, the Court looks
to whether there is: “(1) a reasonable probability that four Justices will consider
the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a
majority of the Court will vote to reverse the judgment below; and (3) a likelihood
- 13 -
that irreparable harm will result from the denial of a stay. In close cases the Circuit
Justice or the Court will balance the equities and weigh the relative harms to the
applicant and to the respondent.” Hollingsworth v. Perry, 558 U.S. 183, 190
(2010).
REASONS TO GRANT THE APPLICATION
I.
U. S. Steel is Likely to Prevail on the Merits.
Because the Plan is legally, technically, factually, and procedurally flawed,
U. S. Steel is likely to prevail on the merits below and, if not, there is a reasonably
probability that four Justices will grant certiorari and a fair prospect that a majority
of the Court will reverse a judgment upholding EPA’s Plan.
A.
EPA Lacked Authority for the Plan and Cannot Sustain What is
Left.
EPA cannot sustain a rule that is based on a false premise. Motor Vehicle
Mfrs. Assn. of the United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U.S. 29, 43 (1983) (arbitrary and capricious if the agency offers “an explanation
for its decision that runs counter to the evidence”). When EPA promulgated the
Plan, it assumed it had authority to regulate 23 States—virtually every state with a
potentially significant contribution to downwind nonattainment of the 2015 ozone
NAAQS. 88 Fed. Reg. at 36,654. EPA itself asserted that application of the Plan
“across all jurisdictions” was “vital” to “efficien[cy] and equit[y].” 88 Fed. Reg. at
36,691 (quotations omitted). While the Rule was never efficient or equitable for
- 14 -
iron and steel facilities, EPA cannot now apply the Plan in 12 States, undermining
even the Agency’s own attempts to justify the Plan.
As EPA notes, for example, this uniformity was vital to avoiding a free rider
problem arising from shifting production (and associated emissions) from States
subject to the Plan to other upwind States. Id. at 36,680 (“Upwind States that have
not yet implemented pollution controls of the same stringency as their neighbors
will be stopped from free riding on their neighbors’ efforts to reduce pollution.
They will have to reduce their emissions by installing devices of the kind in which
neighboring States have already invested.”).
Seven Circuits have now stayed EPA’s disapproval of the SIPs for 12 States,
in turn depriving EPA of the statutory authority to promulgate any FIP, including
the Plan, for these States. 42 U.S.C. § 7410(c)(1). Having built the Plan on the
assumption that it would uniformly regulate 23 upwind States, and indeed hitched
the very equity and viability of the Plan to this requirement, EPA cannot defend
continued application in only 11 States.
Even if EPA could justify a narrower federal plan for 11 States, it has not
done so on the current record, or addressed how it would avoid the very free-rider
problems EPA claimed to be addressing in the Plan. EPA also cannot make up the
deficient record in litigation, under either the Clean Air Act or general principles of
administrative law. 42 U.S.C. § 7607(d)(6)(C); State Farm, 463 U.S. at 50 (“the
- 15 -
courts may not accept appellate counsel’s post hoc rationalizations for agency
action”). Since EPA cannot defend the Plan on the current record, U. S. Steel is
likely to prevail on the merits.
B.
The Rule Violates the Clean Air Act and Cooperative Federalism.
EPA must follow both the text of the Clean Air Act and interpret its
obligations “with a view to their place in the overall statutory scheme.” Util. Air
Regul. Grp. v. EPA, 573 U.S. 302, 322 (2014) (quotation omitted). EPA violated
both of these obligations when it delayed its statutory duty to approve state plans to
develop a superseding federal plan, and then rushed out its SIP Disapproval and
Plan before the States could timely address them.
The Clean Air Act is “an experiment in cooperative federalism.” Michigan
v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001). EPA sets the NAAQS, but the
States are given “primary responsibility” for ensuring emissions within the State
comply with them. 42 U.S.C. § 7407(a). The majority of States subject to the Plan
submitted state plans that met the applicable statutory requirements. EPA was
required to approve them. Id. at § 7410(k)(3). Instead, it delayed for years until it
had produced new modeling it contended undermined the States’ analyses. But
failure to timely act on a state plan does not empower EPA to disregard its
statutory obligations, let alone permit EPA to move the goalposts on the States
after the fact, or require them to address new modeling that was not mandated by
- 16 -
the Clean Air Act. See Wyoming v. EPA, 78 F.4th 1171, 1181 (10th Cir. 2023)
(approving a state plan only if it followed nonbinding guidelines would
“effectively re-write the Act”). In doing so, EPA improperly extended its statutory
authority to States that had properly submitted a state plan.
EPA then compounded its error by rushing to simultaneously disapprove the
State plans and promulgate its own Plan. The Clean Air Act sets no minimum time
EPA must wait after disapproving a SIP before it can issue a FIP, but Congress
clearly intended cooperative federalism to apply during this time. It expressly
gives States the ability to correct deficiencies and, if timely corrected, prevent EPA
from promulgating a FIP. 42 U.S.C. §7410(c)(1)(B). By simultaneously
promulgating both, EPA cut off any meaningful opportunity for States to address
EPA’s concerns through amended state plans, or even to obtain judicial review of
EPA’s decision before becoming subject to a FIP.
EPA attempts to justify its conduct by citing the Court’s statement in EME
Homer that “EPA is not obliged to wait two years or postpone its action even a
single day” after EPA disapproves a state plan because “[t]he Act empowers the
Agency to promulgate a FIP ‘at any time’ within the two-year limit.” EME
Homer, 572 U.S. at 509. But the Court’s ruling was based on the D.C. Circuit’s
attempt to create “an exception to the Act’s precise deadlines,” which would
rewrite “a decades-old statute whose plain text and structure establish a clean
- 17 -
chronology of federal and State responsibilities.” Id. (quotation omitted). The
Court did not sanction the gamesmanship EPA employed here. Nor did the Court
sanction EPA promulgating a federal plan before properly disapproving the State’s
plan, which is itself barred by the “plain text and structure” of the same “decadesold statute.” See 42 U.S.C. § 7410(c)(1). EPA’s misuse of the Court’s precedent
to turn the cooperative federalism of the Clean Air Act on its head is another
reason why U. S. Steel is likely to prevail on the merits.
C.
EPA Did Not Support the Regulation of Iron and Steel Mills.
EPA is obligated to avoid over-control (imposing more obligations on
upwind States than necessary to meet the requirements of the Clean Air Act).
EME Homer, 572 U.S. at 523. Thus, the Plan does not regulate every source in
each applicable State. Instead, EPA focused on “the most impactful industries and
emissions units.” 88 Fed. Reg. at 36,682. This was done by first identifying
industries that had “the most emissions reductions” that could be achieved at a
marginal cost threshold. Screening Assessment at 2, App.533. “[W]ell-controlled
sources” were expressly “excluded from consideration” at this stage. Id. at 3,
App.534.
For iron and steel, EPA assumed, incorrectly, that emissions from numerous
sources, including co-fired boilers, blast furnaces, and basic oxygen furnaces
among others, had “potentially controllable emissions.” See id. at 17, Table 6,
- 18 -
App.548. This led EPA to conclude iron and steel should be one of only nine
“non-EGU” (industries other than electricity generation), subject to emission
reduction requirements. Id. EPA subsequently acknowledged that emission
reductions from most of these sources are in fact not technologically or
economically feasible. See 88 Fed. Reg. at 36,827. EPA therefore removed these
sources from the Plan. Id. But EPA failed to recognize that this also meant its
Screening Assessment significantly overcounted emissions from iron and steel
mills, and that EPA therefore lacked a basis for including iron and steel in the Plan
at all.
Once EPA established a screening threshold, it was required to apply it
consistently and in a manner that reflected the facts in the record. State Farm, 463
U.S. at 43 (arbitrary and capricious to offer an explanation that “runs counter to the
evidence before the agency”). Instead, EPA continued to rely on its original
incorrect Screening Assessment and simply removed the emission units it could
not support regulating from the Plan. See 88 Fed. Reg. at 36,732-33 and 36,827.
This was arbitrary and capricious and makes it likely that the iron and steel
requirements in the Plan will be vacated.
D.
The Iron and Steel Requirements Were Not Subject to Notice and
Comment.
Key aspects of the Plan applicable to iron and steel mills were neither
referenced in, nor logical outgrowths of, the proposed rule. Under both the Clean
- 19 -
Air Act and Administrative Procedure Act, “the final rule must be a ‘logical
outgrowth’ of the agency’s proposal.” Small Ref., 705 F2d at 543 (quoting United
Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980), cert. denied, 453
U.S. 913 (1981)). The entire regulation of reheat furnaces (40 CFR 52.43) is based
on a “test-and-set” approach that can be found nowhere in EPA’s proposed plan.
88 Fed. Reg. at 36,818, 36,879-81. For boilers, EPA proposed to regulate units
based on annual emissions or production. 87 Fed. Reg. at 20,181. Yet without
notice, EPA switched to regulating boilers by “design capacity.” 88 Fed. Reg. at
36,884. This was a significant departure, which EPA acknowledges captured
“more units than the EPA intended.” Id. at 36,819.
EPA did not afford notice and opportunity for comment on the most
fundamental elements of its reheat furnace and boiler regulations for iron and steel
mills. This was arbitrary and capricious and violated the procedural requirements
of the Clean Air Act. Small Ref., 705 F.2d at 543; 42 U.S.C. §7607(d). For this
reason as well, the iron and steel requirements of the Plan are likely to be vacated.
E.
EPA’s “Test-And-Set” Approach Reheat Furnaces Is Illegal and
Lacks Record Support.
EPA’s test-and-set approach for reheat furnaces was adopted in response to
comments that the emission limits in the proposed plan were unsupported by the
record. 88 Fed. Reg. at 36,818. EPA correctly concluded that the proposed limits
were unsupported, but rather than take no action where it lacked record support,
- 20 -
EPA has attempted an unprecedented and illegal work-around of requiring owners
and operators to install controls and then have EPA set the emission limit in a
future action without notice-and-comment rulemaking. Id. This approach exceeds
EPA’s statutory authority and confers on EPA a power to decide who can and
cannot operate that the Clean Air Act never intended.
Specifically, the Rule requires owners and operators to “install and operate”
pollution control technology “designed to achieve at least a 40% reduction from
baseline” emissions. 88 Fed. Reg. at 36,879, 40 CFR 52.43(c). No further
guidance is offered on what designs will be accepted by EPA. The Rule also does
not say how an emission limit is then to be set, other than that the owner or
operator is to submit a work plan and “establish an emissions limit in the work plan
that the affected unit must comply with.” Id., 40 CFR 52.43(d)(3).
This approach is legally unsound. If EPA lacks the relevant data to support
an action, it cannot act. State Farm, 463 U.S. at 43 (an agency must offer a
“rational connection between the facts found and the choice made”) (quotations
omitted). EPA cannot promulgate a placeholder, and then add information to
support its decision after the fact. Id.; 42 U.S.C. § 7607(d)(6)(C) (“The
promulgated rule may not be based (in part or whole) on any information or data
which has not been placed in the docket as of the date of such promulgation.”).
- 21 -
The Clean Air Act also sets forth procedural requirements EPA must follow
to impose emission limits in a FIP. 42 U.S.C. § 7607(d). These include
publication of the proposed rule in the Federal Register, provision of a statement of
basis and purposes, creation of a public docket of supporting material, public
comment, and response to significant comments. Id. at § 7410(d)(3)-(6). Public
participation must be for “a reasonable period” and “at least 30 days” unless
expressly provided for otherwise in the Clean Air Act. Id. at § 7607(h). Final
emission limitations are also subject to judicial review. Id. at § 7410(d)(7). For
example, when EPA adopted a test-and-set process in another FIP, it promulgated
a range of emission limits, a procedure to establishing final limits within that
range, including the data and equations that would be used, and provided that a
final emission limit would become enforceable “only after EPA’s confirmation or
modification of the emission limit” in a final agency action published in the
Federal Register. See, e.g., 40 CFR 42.1235(b)(1)(ii)(A)(1)-(7).
The Plan provides no such procedures. There is no publication of proposed
or final emission limits in the Federal Register; the Administrator will simply
notify owners and operators electronically whether their plan is approved. 88 Fed.
Reg. at 36,880, 40 CFR 52.43(d)(4)(iv). If the Administrator does not approve, the
owner or operator has only 15 calendar days to present additional information or
arguments, after which the Administrator can issue a final decision disapproving
- 22 -
the work plan. Id., 40 CFR 52.43(d)(4)(iii). If the Administrator disapproves a
work plan or finds a work plan was not timely submitted or completed, “[e]ach day
that the affected unit operates following such disapproval or failure to submit shall
constitute a violation.” Id., 40 CFR 52.43(d)(v).
In other words, EPA can prohibit operation on 15 days’ notice without a
hearing or notice-and-comment rulemaking. This finds no support in the Clean Air
Act. Indeed, where Congress has granted EPA authority to limit emissions from
specific sources to address interstate transport violations, Congress required both a
public hearing and at least three months for the source to come into compliance.
42 U.S.C. § 7426(b). EPA’s regulations for reheat furnaces fall short of this
process and any other process that might satisfy the requirements of the Clean Air
Act and are therefore likely to be vacated.
II.
Absent a Stay, U. S. Steel Will Suffer Imminent Irreparable Harm.
The Plan poses substantial and imminent injuries to U. S. Steel. EPA itself
warned owners and operators that they should “begin engineering and financial
planning” as of the date of the proposed rule to be able to meet EPA’s
implementation timetable. 87 Fed. Reg. at 20,036. Notwithstanding the fact that it
is unreasonable to suggest that significant funds and resources be expended on a
proposal subject to change (as the Plan has changed), EPA followed through on its
threat, and imposed an unreasonably short compliance schedules. For iron and
- 23 -
steel facilities, the Plan does not allow sufficient time for design, permitting, and
installation of controls; likely years less than what will be required. Piscitelli
Declaration, at ¶¶6-10, App.716-17. As a result, absent a stay, U. S. Steel cannot
wait before it must incur substantial costs on work plans that EPA does not have
the authority to impose, and on the design, permitting and installation of boiler and
reheat furnace modifications that are unnecessary and may be subject to
withdrawal or modification in a revised rule. Id.; see also AF&P Application at
24, App.407 and App’x 385-86, App.416-17. These substantial costs are imposed
without adherence to law and constitute an irreparable harm. See Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 220-21 (1994) (“complying with a regulation
later held invalid almost always produces the irreparable harm of nonrecoverable
compliance costs”) (Scalia, J., concurring in part and in the judgment).
U. S. Steel has already needed to incur significant compliance costs.
Piscitelli Declaration at ¶¶3, 11-20, App.715, 717-720. The capital expenditures
alone (excluding testing, monitoring, recordkeeping, and reporting costs) for just
one U. S. Steel facility will cost between $28 and $46 million. Id. at ¶15, App.719.
These costs are not recoverable “in the ordinary course of litigation,” and are an
irreparable harm as well. Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544,
555 (D.C. Cir. 2015) (quotations omitted).
- 24 -
The immediate incurrence of significant and irrecoverable compliance costs,
combined with the Plan’s requirement for a mad rush to commit resources to meet
unreasonable timelines that will likely not apply following judicial review supports
a stay.
III.
A Stay Is in the Public Interest.
While the Plan requires U. S. Steel to incur significant costs and permitting
obligations now—to modify facilities, perform testing, and generate data and
reports to meet the Plan’s unreasonable compliance schedule—emissions
reductions from iron and steel sources will not occur under the Plan until 2026 at
the earliest. 88 Fed. Reg. at 36,654. As a result, a stay of the iron and steel
requirements during judicial review will not impact emissions, ambient air quality,
or downwind NAAQS compliance status. EPA cannot contend otherwise. It has
already stayed the Plan for 12 States through two interim final rules without any
mention of adverse impacts on public health or welfare.
On the other hand, a reliable and sufficient supply of domestic steel is in the
public interest. The cumulative effect of the Plan, especially when combined with
several other regulations EPA has imposed or proposed recently for the domestic
steel industry, is having a compounding impact that places unnecessary strain on
domestic steel production. See Piscitelli Declaration at ¶¶21-29, App.720-722.
This has both national economic and national security implications. See id. To
- 25 -
comply with the Plan, U. S. Steel will need to take multiple outages to retrofit
reheat furnaces and boilers, which will impact production capabilities. See id. at
¶¶18-19. It will also lead to wasteful flaring of by-product fuel and increased
reliance on energy from a grid facing potentially significant reliability issues from
the same Plan. Id. at ¶19; AF&P Application at 28, App.411; Ohio Application at
25-26, App.322-23; Kinder Morgan Application at 23-24, App.358-59.
Furthermore, the availability of qualified vendors and experts to implement the
Plan is limited, which exacerbates the scheduling problems, further rendering the
Plan unworkable. Piscitelli Declaration at ¶¶6-10, App.716-17. It is not in the
public interest to maintain a rule during judicial review that immediately threatens
the reliable supply of electricity and domestic steel while deferring environmental
benefit for years.
The substantive and procedural infirmities of the Plan also weigh in favor of
stay. “[O]ur system does not permit agencies to act unlawfully even in pursuit of
desirable ends.” Ala. Ass’n of Realtors v. Eept’ of HHS, 549 U.S. __, 141 S. Ct.
2485, 2490 (2021). Thus, the public also has a fundamental interest “in having
governmental agencies abide by the federal laws that govern their existence and
operations.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir.
2016). The Plan seeks to impose immediate and irreversible burdens through a
clearly illegal rule. The result will be needless public expenditures on a Plan likely
- 26 -
to be vacated. See Ohio Application at 23-25, App.320-22. On the other hand,
denying a stay will create an incentive directly opposed to the public interest by
encouraging EPA and other agencies to promulgate rules, not in the hopes of
withstanding judicial scrutiny, but in the hope of inflicting enough irreversible
commitments while judicial review is pending to achieve their policy goals
regardless of the outcome.
A stay is necessary to prevent the waste of private and public resources, and
to avoid the implementation of a clearly unlawful rule pending judicial review.
CONCLUSION
EPA’s Plan is likely to be vacated, in particular as applied to iron and steel
facilities. Yet U. S. Steel is required to commit scarce specialized resources and
expend millions and commit to permitting obligations while judicial review is
pending, none of which will be reparable after a decision is made. A stay will
preserve the status quo and avoid these injuries without any adverse environmental
impact. Under these circumstances, a stay of the Plan, and in particular the iron
and steel requirements, is justified. For the foregoing reasons, Applicant United
States Steel Corporation respectfully requests that the Court stay the Plan for
reheat furnaces (40 CFR 52.43) and boilers at iron and steel mills (40 CFR 52.45).
October 26, 2023
Respectfully Submitted,
/s/ John D. Lazzaretti
John D. Lazzaretti
- 27 -
Counsel of Record
Squire Patton Boggs (US) LLP
1000 Key Tower
127 Public Square
Cleveland, OH
44114
216.479.8500
john.lazzaretti@squirepb.com
Counsel for Petitioner United States
Steel Corporation
- 28 -
Case No. ______
In the Supreme Court of the United States
________________
UNITED STATES STEEL CORPORATION,
Applicant,
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN, ADMINISTRATOR,
Respondents.
CERTIFICATE OF SERVICE
I hereby certify that I am a member in good standing of the Supreme Court
Bar and that, on this 26th day of October, 2023, I caused copies of the
EMERGENCY APPLICATION FOR STAY OF FINAL AGENCY ACTION
PENDING JUDICIAL REVIEW to be sent via e-mail and commercial carrier for
delivery within 3 calendar days to the persons in the attached Service List:
Executed on October 26, 2023
/s/John D. Lazzaretti
John D. Lazzaretti
Counsel of Record
Squire Patton Boggs (US) LLP
1000 Key Tower
127 Public Square
Cleveland, OH 44114
216.479.8350
john.lazzaretti@squirepb.com
Counsel for United States Steel
Corporation
SERVICE LIST
United States Environmental Protection Chloe Hamity Kolman
Agency and Michael S. Regan, U.S. Department of Justice
Administrator, U.S. EPA
(DOJ) Environmental Defense Section
950 Pennsylvania Avenue, NW
Washington, DC 20530-0000
202-514-9277
chloe.kolman@usdoj.gov
Solicitor General of the United States,
Room 5616, Department of Justice, 950
Pennsylvania Ave., N. W., Washington,
DC 20530-0001
SupremeCtBriefs@USDOJ.gov
State of Utah
Melissa Holyoak, Attorney
Office of the Attorney General, State of
Utah
Suite 230
350 N. State Street
Salt Lake City, UT 84114
801-538-9600
melissaholyoak@agutah.gov
Kinder Morgan, Inc.
Catherine Emily Stetson, Esquire
Hogan Lovells US LLP
Columbia Square
555 13th Street, NW
Washington, DC 20004-1109
202-637-5491
cate.stetson@hoganlovells.com
State of Ohio
Mathura J. Sridharan
Deputy Solicitors General
30 E. Broad St., 17th Floor
Columbus, OH 43215
(614) 466-8980
Mathura.Sridharan@OhioAGO.gov
State of Indiana
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
State of West Virginia
LINDSAY S. SEE
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
American Forest & Paper Association
Kathy G. Beckett, Esquire, Attorney
Steptoe & Johnson PLLC
707 Virginia Street East
Chase Tower, 17th Floor
Charleston, WV 25301
kathy.beckett@steptoe-johnson.com
Midwest Ozone Group and American David Michael Flannery, Esquire
Iron and Steel Institute
Steptoe & Johnson PLLC
707 Virginia Street East
Chase Tower, 17th Floor
Charleston, WV 25301
304-353-8000
dave.flannery@steptoe-johnson.com
Interstate Natural Gas Association of Eric Dean McArthur, Esquire, Attorney
America and American Petroleum Sidley Austin LLP
Institute
1501 K Street, NW
Washington, DC 20005
202-736-8018
emcarthur@sidley.com
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
Aaron Michael Flynn
McGuireWoods LLP
888 16th Street, NW
Suite 500
Washington, DC 20006
202-857-1700
aaronflynn@mcguirewoods.com
National Mining Association
Michael Benjamin Schon, Attorney
Lehotsky Keller Cohn LLP
200 Massachusetts Avenue, NW
Suite 700
Washington, DC 20001
202-436-4811
mike@lehotskykeller.com
State of Wisconsin
Gabe Johnson-Karp
Wisconsin Department of Justice
17 West Main Street
Madison, WI 53707-7857
608-267-8904
johnsonkarpg@doj.state.wi.us
Enbridge (U.S.) Inc.
Laura K. McAfee
Beveridge & Diamond
201 North Charles Street
Suite 2210
Baltimore, MD 21201
410-230-3850
lmcafee@bdlaw.com
American Chemistry Council
Elliott Zenick, Esquire
Assistant General Counsel
American Chemistry Council
700 2nd Street, NE
Washington, DC 20002
202-249-6477
elliott_zenick@americanchemistry.com
American Fuel
Manufacturers
&
Petrochemical Richard S. Moskowitz, General Counsel
American Fuel & Petrochemical
Manufacturers
1800 M Street, NW
Suite 900 North
Washington, DC 20036
202-552-8474
rmoskowitz@afpm.org
TransCanada Pipeline USA Ltd.
Jeffrey R. Holmstead, Esquire
Attorney
Bracewell LLP
2001 M Street, NW
Suite 900
Washington, DC 20036
202-828-5852
jeff.holmstead@bracewelllaw.com
Hybar LLC
Mark W. DeLaquil
Baker & Hostetler LLP
1050 Connecticut Avenue, NW
Washington Square, Suite 1100
Washington, DC 20036-5304
202-861-1500
mdelaquil@bakerlaw.com
Union Electric Company, d/b/a Ameren Elbert Lin, Esquire, Partner
Missouri and Arkansas League of Good Hunton Andrews Kurth LLP
Neighbors
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
804-788-7202
ELin@hunton.com
State of Nevada
Heidi Parry Stern, Solicitor
Office of the Attorney General, State of
Nevada
555 East Washington Avenue
Las Vegas, NV 89101
702-486-3594
hstern@ag.nv.gov
City Utilities of Springfield, Missouri
Thomas James Grever, Attorney
Shook, Hardy & Bacon LLP
2555 Grand Boulevard
Kansas City, MO 64108-2613
816-474-6550
tgrever@shb.com
City of New York
Christopher Gene King, Assistant
Corporation Counsel
New York City Law Department
6-143
100 Church Street
New York, NY 10007
212-788-1235
cking@law.nyc.gov
Commonwealth of Massachusetts
Jillian Riley
Massachusetts Office of the Attorney
General
Environmental Protection Division
One Ashburton Place, 18th Floor
Boston, MA 02108
617-963-2424
jillian.riley@mass.gov
Commonwealth of Pennsylvania
Ann R. Johnston, Sr. Deputy Attorney
General
Office of the Attorney General,
Commonwealth of Pennsylvania
Strawberry Square
14th Floor
Harrisburg, PA 17120
717-857-2091
ajohnston@attorneygeneral.gov
District of Columbia
Caroline S. Van Zile, Deputy Solicitor
General
Office of the Attorney General for the
District of Columbia
Office of the Solicitor General
400 6th Street, NW
Suite 8100
Washington, DC 20001
202-727-3400
caroline.vanzile@dc.gov
Harris County, Texas
Sarah Utley, Assistant County Attorney
Harris County Attorney's Office
1019 Congress, 15th Floor
Houston, TX 77002
713-274-5124
sarah.utley@cao.hctx.net
State of Connecticut
Jill Lacedonia, Assistant Attorney
General
Office of the Attorney General, State of
Connecticut
Environment Department
165 Capitol Avenue
Hartford, CT 06106
860-808-5250
Jill.Lacedonia@ct.gov
State of Delaware
Christian Douglas Wright
Delaware Department of Justice
Firm: 302-577-8600
820 N. French Street
Wilmington, DE 19801
302-683-8880
christian.wright@delaware.gov
State of Illinois
Elizabeth Dubats
Office of the Attorney General, State of
Illinois
69 West Washington Street
Suite 1800
Chicago, IL 60602
773-590-6794
elizabeth.dubats@ilag.gov
State of Maryland
Joshua Segal
Office of the Attorney General, State of
Maryland
200 St. Paul Place
Baltimore, MD 21202-2021
410-576-6446
jsegal@oag.state.md.us
State of New Jersey
Lisa Jo Morelli
Office of the Attorney General, State of
New Jersey
Division of Law
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08611
609-633-8713
lisa.morelli@dol.lps.state.nj.us
State of New York
Claiborne Walthall, Esquire, Assistant
Attorney General
Office of the Attorney General, State of
New York
Environmental Protection Bureau
The Capitol
Albany, NY 12224-0341
518-776-2380
claiborne.walthall@ag.ny.gov
Air Alliance Houston, Appalachian
Mountain Club, Center for Biological
Diversity, Chesapeake Bay Foundation,
Downwinders at Risk, Louisiana
Environmental Action Network, Sierra
Club, Southern Utah Wilderness
Neil Gormley, Attorney
Earthjustice
1001 G Street, NW
Suite 1000
Washington, DC 20001
202-667-4500
ngormley@earthjustice.org
Alliance, and Utah Physicians for a
Healthy Environment
Citizens for Pennsylvania’s Future, Shaun Alaric Goho
Clean Air Council, and Clean Clean Air Task Force
Wisconsin
114 State Street
6th Floor
Boston, MA 02109
617-678-2516
sgoho@catf.us
Environmental Defense Fund
Megan M. Herzog, Attorney
Donahue Goldberg, LLP
1008 Pennsylvania Avenue, SE
Washington, DC 20003
650-353-8719
megan@donahuegoldberg.com
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.