Emergency Application — Edison Electric Institute, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefJul 29, 2024

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No. ____

In the Supreme Court of the United States

EDISON ELECTRIC INSTITUTE, OKLAHOMA GAS AND ELECTRIC COMPANY, AND

IDAHO POWER COMPANY,

Applicants,

ENVIRONMENTAL PROTECTION AGENCY and

MICHAEL S. REGAN, Administrator,

United States Environmental Protection Agency,

Respondents.

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE D.C. CIRCUIT

APPLICATION FOR IMMEDIATE STAY OF FINAL AGENCY ACTION PENDING

APPELLATE REVIEW

Thomas A. Lorenzen

Amanda Shafer Berman

Elizabeth B. Dawson

CROWELL & MORING LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Counsel for Edison Electric Institute

Aaron M. Streett

Counsel of Record

J. Mark Little

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

Megan H. Berge

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, D.C. 20001

Counsel for Oklahoma Gas and Electric

Company and Idaho Power Company

PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS

Applicants are Edison Electric Institute, Oklahoma Gas and Electric Company, and

Idaho Power Company. Respondents are the United States Environmental Protection

Agency and Michael Regan, in his official capacity as Administrator of the United States

Environmental Protection Agency.

The parties to the consolidated proceedings below are:

Petitioners: State of West Virginia; State of Alabama; State of Alaska; State of

Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Iowa;

State of Kansas; Commonwealth of Kentucky; State of Louisiana; State of Mississippi;

State of Missouri; State of Montana; State of Nebraska; State of New Hampshire; State of

North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South

Dakota; State of Tennessee; State of Texas; State of Utah; Commonwealth of Virginia;

State of Wyoming; America’s Power; Appalachian Region Independent Power Producers

Association; Edison Electric Institute (also an Intervenor); Electric Generators for a

Sensible Transition; Idaho Power Company; International Brotherhood of Boilermakers,

Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO; International

Brotherhood of Electrical Workers, AFL-CIO; Midwest Ozone Group; Montana-Dakota

Utilities Co.; National Mining Association; National Rural Electric Cooperative

Association; Oklahoma Gas and Electric Company; Rainbow Energy Center, LLC;

NACCO National Resources Corporation; United Mine Workers of America, AFL-CIO;

Westmoreland Mining Holdings LLC; Westmoreland Mining LLC; and Westmoreland

Rosebud Mining LLC.

Intervenors: State of New York; State of Arizona; State of Colorado; State of

Connecticut; State of Delaware; State of Hawaii; State of Illinois; State of Maine; State of

Maryland; Commonwealth of Massachusetts; State of Michigan; State of Minnesota; State

of New Jersey; State of New Mexico; State of North Carolina; State of Oregon;

Commonwealth of Pennsylvania; State of Rhode Island; State of Vermont; State of

Washington; State of Wisconsin; District of Columbia; City and County of Denver; City of

Boulder; City of Chicago; City of New York; California Air Resources Board; American

Lung Association; American Public Health Association; Clean Air Council; Clean

Wisconsin; Consolidated Edison, Inc.; Edison Electric Institute (also a Petitioner);

Louisiana Public Service Commission; Natural Resources Defense Council; New York

Power Authority; Pacific Gas and Electric Company; Power Companies Climate Coalition;

Sacramento Municipal Utility District; and Tennessee Valley Public Power Association,

Inc.

Amici Curiae: The Chamber of Commerce of the United States of America;

Environmental Defense Fund; Professor Rachel Rothschild; and Sierra Club.

The related proceedings are:

West Virginia v. EPA, No. 24-1120 (D.C. Cir.) (lead case), consolidated with: Ohio

v. EPA, No. 24-1121 (D.C. Cir.); National Rural Electric Cooperative Association v. EPA,

No. 24-1122 (D.C. Cir.); National Mining Association v. EPA, No. 24-1124 (D.C. Cir.);

Oklahoma Gas and Electric Company v. EPA, No. 24-1126 (D.C. Cir.); Electric Generators

for a Sensible Transition v. EPA, No. 24-1128 (D.C. Cir.); United Mine Workers of

America v. EPA, No. 24-1142 (D.C. Cir.); International Brotherhood of Electrical Workers

v. EPA, No. 24-1143 (D.C. Cir.); International Brotherhood of Boilermakers v. EPA, No.

24-1144 (D.C. Cir.); Midwest Ozone Group v. EPA, No. 24-1146 (D.C. Cir.); Edison Electric

Institute v. EPA, No. 24-1152 (D.C. Cir.); NACCO Natural Resources Corporation v. EPA,

No. 24-1153 (D.C. Cir.); Idaho Power Company v. EPA, No. 24-1155 (D.C. Cir.);

Appalachian Region Independent Power Producers Association v. EPA, No. 24-1222 (D.C.

Cir.); Rainbow Energy Center, LLC v. EPA, No. 24-1226 (D.C. Cir.); Montana-Dakota

Utilities Co. v. EPA, No. 24-1227 (D.C. Cir.); and Westmoreland Mining Holdings LLC v.

EPA, No. 24-1233 (D.C. Cir.).

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Applicants submit the following corporate

disclosure statement.

Applicant Edison Electric Institute (“EEI”) states that it is a national association of

investor-owned electric utility companies. It has no parent companies, subsidiaries, or

affiliates. EEI has no outstanding shares or debt securities in the hands of the public, and

no publicly owned company has a 10% or greater ownership interest in EEI.

Applicant Oklahoma Gas and Electric Company (“OG&E”) states that it is a wholly

owned subsidiary of OGE Energy Corp., a holding company that is exempt from

registration under the Public Utility Holding Company Act of 2005. The Vanguard Group

and BlackRock Fund Advisors each has a 10% or greater ownership interest in OGE

Energy Corp. No other publicly held company has a 10% or greater ownership interest in

OGE Energy Corp. OGE Energy Corp. has no parent company.

Applicant Idaho Power Company states that it is a wholly owned subsidiary of

IDACORP, Inc., an Idaho corporation. The publicly traded corporation, IDACORP, Inc.,

owns 100% of the stock of Idaho Power Company. The Vanguard Group (11.41% as of its

most recent filing with the U.S. Securities and Exchange Commission (“SEC”) on February

13, 2024), and BlackRock, Inc. (11.8% as of its most recent filing with the SEC on January

23, 2024) hold a 10% or greater ownership interest in IDACORP, Inc. IDACORP, Inc. has

no parent company.

TABLE OF CONTENTS

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS .......................... i

CORPORATE DISCLOSURE STATEMENT ...................................................................... iv

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

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

DECISION BELOW ................................................................................................................... 3

JURISDICTION .......................................................................................................................... 3

STATUTORY PROVISION INVOLVED ................................................................................ 3

STATEMENT .............................................................................................................................. 4

Statutory And Regulatory Background ......................................................................... 4

II.

EPA’s Final Section 111 Rule ......................................................................................... 5

III.

Procedural History ........................................................................................................... 6

REASONS FOR GRANTING THE APPLICATION............................................................ 6

Applicants Are Likely To Prevail On The Merits ......................................................... 7

EPA impermissibly based its standards on what may be possible in

the future rather than on what “has been adequately demonstrated”

now ......................................................................................................................... 7

EPA exceeded its statutory authority and acted arbitrarily and

capriciously in determining that the Final Rule’s 90%-capture CCS

system “has been adequately demonstrated” ................................................. 11

EPA exceeded its statutory authority and acted arbitrarily and

capriciously in determining that the Final Rule’s 90%-capture CCS

system “has been adequately demonstrated” to be deployable by the

Final Rule’s January 1, 2032 deadline .............................................................. 17

II.

Applicants Face Imminent And Irreparable Injury................................................... 20

III.

The Balance Of Harms And The Public Interest Favor A Stay ............................... 24

CONCLUSION .......................................................................................................................... 25

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

594 U.S. 758 (2021) ........................................................................................................... 22, 24

Ark. Dep’t of Health & Hum. Servs. v. Ahlborn,

547 U.S. 268 (2006) .................................................................................................................11

Bennett v. Spear,

520 U.S. 154 (1997) .................................................................................................................19

Carr v. United States,

560 U.S. 438 (2010) ...................................................................................................................9

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) ...................................................................................................................3

In re EPA,

803 F.3d 804 (6th Cir. 2015) ..................................................................................................24

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .................................................................................................................12

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) .................................................................................................................12

Hollingsworth v. Perry,

558 U.S. 183 (2010) ...................................................................................................................3

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024)...............................................................................................................9

Michigan v. EPA,

576 U.S. 743 (2015) ...................................................................................................................3

Nat’l Lime Ass’n v. EPA,

627 F.2d 416 (D.C. Cir. 1980) ...................................................................................... 8, 17, 18

Ohio v. EPA,

144 S. Ct. 2040 (2024)............................................................................. 2, 6, 12, 16, 20, 21, 23

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) .................................................................................................................18

Philip Morris USA Inc. v. Scott,

561 U.S. 1301 (2010) ...............................................................................................................22

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) .................................................................................................................21

United States v. Wilson,

503 U.S. 329 (1992) ...................................................................................................................9

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) .................................................................................................................11

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................................................................................. 2, 24

Statutes

5 U.S.C. § 705 .................................................................................................................................3

28 U.S.C. § 1254 .............................................................................................................................3

28 U.S.C. § 1651 .............................................................................................................................3

42 U.S.C. § 7411 ......................................................................................................... 1, 3, 4, 6, 7, 8

Regulatory Authorities

79 Fed. Reg. 71,663 (Dec. 3, 2014) .............................................................................................23

88 Fed. Reg. 67,102 (Sept. 29, 2023) ..........................................................................................23

89 Fed. Reg. 39,798 (May 9, 2024) .......................................................... 1, 3-8, 10, 12-19, 21, 24

Books

Garner, Garner’s Modern English Usage (2022) .......................................................................9

Webster’s New World Dictionary of the American Language (1970) .....................................8

Webster’s Seventh New Collegiate Dictionary (1970) ...............................................................8

vii

TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES AND

CIRCUIT JUSTICE FOR THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT:

Applicants Edison Electric Institute (“EEI”), Oklahoma Gas and Electric Company

(“OG&E”), and Idaho Power Company (“IPC”) request an immediate stay of the United

States Environmental Protection Agency’s (“EPA”) final rule entitled New Source

Performance Standards for Greenhouse Gas Emissions From New, Modified, and

Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for

Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units;

and Repeal of the Affordable Clean Energy Rule, 89 Fed. Reg. 39,798 (May 9, 2024) (the

“Final Rule”).

INTRODUCTION

Applicants

challenge

EPA’s

determination

that

carbon

capture

and

storage/sequestration (“CCS”) has been adequately demonstrated as the best system of

emission reduction (“BSER”) under Section 111 of the Clean Air Act despite no operating

plants anywhere deploying this technology and achieving the 90%-CO2-capture required by

EPA. Applicants support EPA’s established authority to regulate greenhouse-gas

emissions under the Act. Applicants will also continue to achieve significant carbon emission

reductions through their own voluntary efforts. But EPA cannot violate statutory directives

in exercising its regulatory muscles. It crossed that line in the Final Rule.

As relevant here, EPA’s statutory charge is to set a “standard of performance * * *

which reflects the degree of emission limitation achievable through the application of the

best system of emission reduction which * * * has been adequately demonstrated.” 42

U.S.C. § 7411(a)(1). But rather than analyze the emission-reduction technologies that

“ha[ve] been adequately demonstrated,” EPA instead turned to a system still very much in

the beginning phases of development—CCS—and declared it as the BSER for large swaths

of the power industry. Then, based on application of that theoretical CCS system, EPA set

a 90%-carbon-capture standard of performance that has never been “adequately

demonstrated” and is not “achievable.” EPA’s setting of this impossible standard directly

contradicts the statutory text and constitutes arbitrary and capricious agency action, which

means that Applicants are highly likely to succeed on the merits of their challenge to the

Final Rule.

Applicants cannot wait for ultimate vindication, however, because they face

imminent and unavoidable irreparable harm. To both comply with the Final Rule’s CCS

deadlines and bring new, needed power online in time to meet growing demand, companies

must spend many millions of dollars and make irreversible choices among compliance

options now. See App.763 (Declaration of Ryan Adelman); App.777 (Declaration of Erik

Bakken); App.794 (Declaration of Matthew Bulpitt); App.808 (Declaration of Robert

Burch). These costs cannot be recovered for utilities or their customers if the Final Rule is

later vacated. As this Court recently held, incurring significant “nonrecoverable”

compliance costs “during the pendency of th[e] litigation” constitutes a “strong argument[]”

on “[irreparable] harm[].” Ohio v. EPA, 144 S. Ct. 2040, 2053 (2024).

The equities and public interest favor a stay as well, as power companies have a

demonstrated track record of voluntarily reducing their greenhouse-gas emissions and

there is no public interest in enforcing an unlawful regulation.

Further, for the Justices that consider it, there is “a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari” and “a fair

prospect that a majority of the Court w[ould] vote to reverse * * * .” Hollingsworth v.

Perry, 558 U.S. 183, 190 (2010). The Court has regularly granted certiorari in similarly

important Clean Air Act cases over the last decade. See West Virginia v. EPA, 597 U.S.

697 (2022); Michigan v. EPA, 576 U.S. 743 (2015); EPA v. EME Homer City Generation,

L.P., 572 U.S. 489 (2014). The Final Rule’s enormous economic implications and profound

errors likewise render it an excellent candidate for review.

In sum, it is difficult to imagine a more compelling set of circumstances for a stay

pending review.

DECISION BELOW

The D.C. Circuit’s order denying Applicants’ motion for a stay pending review is

unpublished. It is reproduced at App.268-270. EPA’s Final Rule is published at 89 Fed. Reg.

39,798 (May 9, 2024) and reproduced at App.001-267.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). It has the authority to grant

the requested relief under the Administrative Procedure Act, 5 U.S.C. § 705; the All Writs

Act, 28 U.S.C. § 1651; and Supreme Court Rule 23.

STATUTORY PROVISION INVOLVED

42 U.S.C. § 7411(a)(1) provides:

The term “standard of performance” means a standard for emissions of air

pollutants which reflects the degree of emission limitation achievable through

the application of the best system of emission reduction which (taking into

account the cost of achieving such reduction and any nonair quality health

and environmental impact and energy requirements) the Administrator

determines has been adequately demonstrated.

STATEMENT

Statutory And Regulatory Background

Section 111 of the Clean Air Act governs performance standards for “stationary

sources” of air pollution. 42 U.S.C. § 7411. It grants EPA the authority to set “standards of

performance” for new sources of air pollution and to establish guidelines that States will

apply to set “standards of performance” for existing sources of air pollution. Id. §§ 7411(b),

(d). For both new and existing sources, the standards must be “achievable through

application of the best system of emission reduction * * * [that] the Administrator

determines has been adequately demonstrated.” Id. § 7411(a)(1) (emphasis added).

To determine the “best system of emission reduction” that “has been adequately

demonstrated,” “EPA first identifies the ‘system[s] of emission reduction’ that are

‘adequately demonstrated,’ and then determines the ‘best’ of those systems, ‘taking into

account’ factors including ‘cost,’ ‘non-air quality health and environmental impact,’ and

‘energy requirements.’” 89 Fed. Reg. at 39,824 (quoting 42 U.S.C. § 7411(a)(1)). Then, once

EPA identifies the BSER, EPA and the States set a standard of performance, typically a

numeric emission limit or rate that would follow from installing and operating the

technology identified as the BSER.

II.

EPA’s Final Section 111 Rule

The Final Rule makes BSER determinations and sets standards of performance for

both existing coal-fired units and new gas-fired units.1

For existing units, the Final Rule sets different standards of performance based on

their fuel types and enforceable dates for permanently ceasing operation. 89 Fed. Reg. at

39,840-39,841. For existing coal-fired electric generating units that plan to continue

operation after January 1, 2039, EPA identifies the BSER as CCS with 90% capture of

emitted CO2. Id. at 39,841. Based on that BSER determination, these existing coal-fired

units must achieve 90% capture through CCS or an equivalent system of emissions

reduction by January 1, 2032. Id. at 39,801.2 For existing coal-fired units that plan to operate

on or after January 1, 2032, but will retire before January 1, 2039, EPA identifies the BSER

as 40% natural gas co-firing (based on the unit’s annual heat input) and mandates that these

units achieve 40% co-firing beginning January 1, 2030. Id. at 39,841, 39,890. Lastly, existing

coal-fired units that plan to permanently cease operating before January 1, 2032 are exempt

from any BSER requirements, but still must follow recordkeeping and reporting

obligations. Id. at 39,801, 40,061.

For new and modified gas-fired units, the Final Rule determines the BSER and sets

standards of performance based on their annual capacity factor, i.e., the percentage of their

maximum power output that will be produced annually. For “base load” units with a 40%

To be more precise, the Final Rule regulates new gas-fired turbines, but not new gas-fired

boilers.

EPA has identified no technology or compliance option other than CCS that sources could

use to meet that reduction requirement.

capacity factor or greater, EPA identifies CCS as the BSER and requires all sources in this

subcategory to achieve 90% capture through CCS or an equivalent system of emissions

reduction by 2032. Id. at 39,913, 39,938.3 For “intermediate load” units that have a capacity

factor between 20% and 40%, EPA identifies the BSER as highly efficient simple cycle

technology with best operating and maintenance practices. Id. at 39,918. For “low load”

units that have a capacity factor of less than 20%, EPA identifies the use of lower-emitting

fuels as the BSER. Id. at 39,917.

III.

Procedural History

After filing petitions for review in the D.C. Circuit, Applicants moved to stay the

Final Rule pending judicial review on May 24, 2024. The D.C. Circuit denied Applicants’

motion on July 19, 2024. App.268-270.

REASONS FOR GRANTING THE APPLICATION

The Court considers four factors when resolving a stay request: (1) likelihood of

success on the merits; (2) irreparable harm to the applicant absent a stay; (3) harm to other

parties from a stay; and (4) the public interest. Ohio, 144 S. Ct. at 2052. All four factors

favor a stay. CCS technology is not “adequately demonstrated” and cannot be implemented

nationwide to “achiev[e]” 90% capture of emitted CO2. 42 U.S.C. § 7411(a)(1). Yet, absent a

stay, EEI’s members4 will have to begin work immediately to comply with the Final Rule’s

new requirements and spend many millions of dollars to do so while this litigation is

pending. The equities and public interest favor a stay as well, given power companies’

EPA has identified no technology or compliance option other than CCS that sources could

use to meet that reduction requirement.

Both OG&E and IPC are members of EEI.

established record of voluntarily reducing their greenhouse-gas emissions and the lack of a

public interest in keeping in force a patently unlawful regulation.

Applicants Are Likely To Prevail On The Merits.

EPA’s BSER determination stacks error upon error. Its foundational error was to

determine the BSER based not on what “has been adequately demonstrated,” as Section

111 commands, but rather on “project[ions] [of] the development of a control system at a

future time.” 89 Fed. Reg. at 39,801. That disregard of its statutory charge caused EPA to

exceed its authority under the Act. But at least it helps to explain how EPA erroneously

concluded it should mandate a CCS system that has never achieved the required facilitywide 90% CO2 capture in practice—for either coal- or gas-fired units. Yet even if EPA could

cast aside the statutory text and rely on predictions, CCS still would be far from

“adequately demonstrated” given the insurmountable barriers to building from scratch all

the pieces of a 90%-CO2-capture CCS system—which includes distinct capture, transport,

and storage components—in the seven-and-a-half-year timeframe the Final Rule demands.

In this way, EPA’s BSER determination combines a breach of statutory authority with

arbitrary and capricious action. The outcome is a high likelihood that Applicants will

succeed on the merits of their challenge to the Final Rule.

EPA impermissibly based its standards on what may be possible in the

future rather than on what “has been adequately demonstrated” now.

Standards of performance under Sections 111(b) and (d) must “reflect[] the

degree of emission limitations achievable through the application of the best system of

emission reduction which * * * the Administrator determines has been adequately

demonstrated.” 42 U.S.C. § 7411(a)(1) (emphasis added). Here, however, because EPA is

unable to show that CCS has been adequately demonstrated today for either coal- or gasfired units, it pivots to claiming authority to “reasonably project the development of a

control system at a future time and establish requirements that take effect at that time.”

89 Fed. Reg. at 39,801; see also ibid. (“BSER can be forward-looking in nature and take

into account anticipated improvements in control technologies.”); id. at 39,830 n.202

(arguing that EPA may “make a projection regarding the way in which a particular system

will develop to allow for greater emissions reductions in the future”); id. at 39,831

(defending the propriety of making a “projection of what that particular system may be

expected to achieve going forward”); id. at 39,878 n.610 (“EPA may extrapolate based on

its findings and project technological improvements in a variety of ways.”).

But the question—as set forth in the statute’s plain text—is not what technology

may be developed in the future; it is what “has been adequately demonstrated” today. 42

U.S.C. § 7411(a)(1) (emphasis added). Contemporaneous dictionaries confirm the already

evident meaning of that text. “Demonstrate” means “to show clearly,” “to prove or make

clear by reasoning or evidence,” or “to illustrate or explain esp. with many examples.”

Webster’s Seventh New Collegiate Dictionary 220 (1970); see also Webster’s New World

Dictionary of the American Language 376 (1970) (defining “demonstrate” as “to show by

reasoning; prove” and “to explain or make clear by using examples, experiments, etc.”).

“Adequate” means “sufficient for a specific requirement.” Webster’s Seventh New

Collegiate Dictionary 11 (1970); see also Webster’s New World Dictionary of the American

Language 16 (1970) (defining “adequate” as “enough or good enough for what is required

or needed; sufficient; suitable”). Accordingly, to “adequately demonstrate[]” an emission-

reduction technology, EPA must “show clearly,” using “evidence” and “examples,” that the

technology is “sufficient for [the] specific [emission-reduction] requirement” that is being

imposed. EPA therefore must provide concrete examples of its chosen BSER’s achieving

the standard of performance and “show clearly” that it can do so in all of the settings to

which the regulation extends. See Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 431 n.46 (D.C.

Cir. 1980) (“[T]o be achievable, * * * a uniform standard must be capable of being met under

[the] most adverse conditions which can reasonably be expected to recur * * * .”).

The backwards-looking nature of “has been” confirms that this adequate

demonstration must have already been made at the time of the rule’s enactment. “Congress’

use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S.

329, 333 (1992). That is why this Court “ha[s] frequently looked to Congress’ choice of verb

tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448

(2010). As the present-perfect tense of “to be,” “has been” denotes “an action as having been

completed at some indefinite time in the past * * * [or] indicates that an action continues to

the present.” Garner, Garner’s Modern English Usage 1080-1082 (2022). Applied here, both

senses of that verb tense require that the BSER’s adequate demonstration take place by

the time of the rule’s enactment. Either it was “completed at some indefinite time in the

past”—i.e., before the rule’s enactment—or the state of adequate demonstration “continues

to the present”—i.e., the time of the rule’s enactment.

In light of the statute’s remarkably clear text, EPA cannot defend its interpretation

as “the best reading of the statute.” See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2266 (2024).

EPA attempts to deny just how much its Final Rule depends on future

projections concerning a technology system that has not been adequately demonstrated

today. For example, while EPA doggedly defends its power to set a BSER based on such

projections, it also insists that it need not use that power here because “CCS is already in

existence.” 89 Fed. Reg. at 39,830 n.202. To be sure, CCS does indeed exist. But there is a

wide gulf between CCS with some unspecified level of capture operating in certain settings

and adequate demonstration of CCS with a consistent 90%-capture capable of operating at

every existing coal-fired power plant and new gas-fired power plant across the country, as

the Final Rule requires. The Final Rule impermissibly tries to rely on “projection[s],”

“prediction[s],” “extrapolation[s],” “anticipated improvements,” and other “forwardlooking” mechanisms to bridge that yawning gap. See, e.g., id. at 39,801, 38,830 n.202,

39,831, 39,832, 39,878 n.610, 39,889, 39,926.5

Similarly, EPA elsewhere states that “although the EPA is not relying on this point

for purposes of these rules, it should be noted that the EPA may determine a system of

emission reduction to be adequately demonstrated based on some amount of projection,

even if some aspects of the system are still in development.” Id. at 39,832 n.223. Yet in the

very next sentence, EPA explains that “the authorization for lead time [in the Final Rule]

accommodates the development of projected technology.” Id. (emphasis added). If EPA is

In this same vein, EPA also repeatedly insists that a BSER “need not be in widespread

use at the time EPA’s rule is published.” 89 Fed. Reg. at 39,830; see also id. at 39,831-39,832,

39,878. But that misses the point. Here, no plant anywhere has installed a CCS system and

achieved the 90%-capture the Final Rule requires. BSER may not need to be in widespread

use, but it must be in use and achieving the mandated standard of performance somewhere

before it can be required everywhere.

not relying on projections of technological development, then why does it emphasize that it

is allowing “lead time” for just such technology development? See Ark. Dep’t of Health &

Hum. Servs. v. Ahlborn, 547 U.S. 268, 292 (2006) (rejecting an agency’s “reasoning [that]

couple[d] internal inconsistency with a conscious disregard for the statutory text”). The

reality is that EPA has no choice but to unlawfully rely on projections of future

technological development to defend its BSER determination and standard of performance

that not a single power plant anywhere has yet achieved.

EPA’s embrace of 90%-CO2-capture CCS as the BSER therefore rests on a

fundamental overreach of statutory authority. EPA’s misconception of its statutory powers

caused it to ask the wrong question at the outset of its BSER analysis and thereby infected

the entire exercise. This error alone warrants vacatur. See Utility Air Regulatory Group

v. EPA, 573 U.S. 302, 325-326 (2014) (vacating in relevant part a regulation that “rewr[ote]

unambiguous statutory terms” and therefore “went well beyond the bounds of [EPA’s]

statutory authority” (internal quotation marks omitted)).

EPA exceeded its statutory authority and acted arbitrarily and

capriciously in determining that the Final Rule’s 90%-capture CCS

system “has been adequately demonstrated.”

It is axiomatic that a technology has not “been adequately demonstrated” when no

one has ever successfully employed it. Here, EPA cannot cite even a single example of a

power-generating facility achieving the Final Rule’s 90%-capture standard with a CCS

system. That disqualifies 90%-capture CCS from being the BSER. Faced with comments

detailing this fault during the rulemaking process, EPA failed entirely to “supply ‘a

satisfactory explanation for its action’” and “instead ignored ‘[this] important aspect of the

problem’ before it.” Ohio, 144 S. Ct. at 2054 (quoting Motor Vehicle Mfrs. Assn. of United

States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983)). Armed with

only a few scattered examples that indisputably fall short of the 90%-capture CCS required

by the Final Rule, EPA forged ahead with its BSER conclusion. That action exceeds the

clear bounds of its statutory authority and exemplifies arbitrary and capricious agency

action. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009) (“[A]gency action

must not be ‘in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right.’” (quoting 5 U.S.C. § 706(2)(C)); FCC v. Prometheus Radio Project, 592

U.S. 414, 423 (2021) (“The APA’s arbitrary-and-capricious standards requires that agency

action be reasonable and reasonably explained”).

EPA describes a few “industrial applications” of CCS to support its claim that

“all components of CCS—CO2 capture, CO2 transport, and CO2 sequestration—have been

demonstrated concurrently, with each component operating simultaneously and in concert

with the other components.” 89 Fed. Reg. at 39,846. But none of those has achieved the

90%-capture the Final Rule requires, much less paired that with a system to transport and

sequester the captured CO2. Claiming that a BSER “has been adequately demonstrated”

without identifying a single facility that has ever achieved it (or satisfactorily explaining

why that does not matter) is definitionally arbitrary agency action.

EPA first points to the Searles Valley Minerals/Argus Cogeneration Plant that

provides power to a soda ash plant and captures approximately 270,000 metric tons of CO2

annually. Id. at 39,846-39,847. But critically, EPA does not explain whether this represents

capture of 90% of facility emissions—which is what the Final Rule requires. Moreover, EPA

cannot claim that this facility transports or stores the captured CO2—because it does not.

App.310 (Technical Support Document). Accordingly, this example demonstrates only that

some unspecified level of CO2 capture—without the transport and storage of the captured

CO2 that the Final Rule requires—can be achieved in an industrial setting.

EPA also cites the Shute Creek Facility and the Great Plains Synfuels Plant, but

once again it identifies only the total volume of CO2 sequestered per year, ignoring whether

that amount represents the required 90% capture. 89 Fed. Reg. at 39,847. Worse, at least

for the Great Plains Synfuels Plant, the record demonstrates that it attained only “partial”

(50%) CO2 capture, without providing further details on the degree of efficiency achieved.

App.311 (Technical Support Document). EPA’s refusal to consider the actual capture

percentage cannot be countenanced in light of the Final Rule's strict 90%-capture mandate.

Lastly, EPA relies on the Quest steam methane reformer facility in Alberta, which

purportedly “capture[s] and sequester[s] approximately 80 percent of the CO2 in the

produced syngas.” 89 Fed. Reg. at 39,847. That falls below EPA’s 90%-capture

requirement. And, as EPA acknowledges, the CO2 capture methods employed there are

“tailored to the flue gas conditions of a particular industry,” rendering the efficiency metric

reported for Quest less instructive for power plants. Id. at 39,847.

As for coal-fired power plants, EPA proffers one facility in Canada and two

domestic examples of partial CCS implementation. But none of those even come close to

achieving the 90% capture, transport, and storage that the Final Rule mandates—a

deficiency that EPA wholly ignores.

EPA notes that Boundary Dam 3, located in Saskatchewan, has been shown “capable

of achieving capture rates of 83 percent when the capture plant is online.” Id. at 39,848

(emphasis added). But Boundary Dam does not regularly achieve even that carbon capture

rate; indeed, its “CCS facility has only operated at full nameplate capacity for a few days

shortly after it was commissioned,” App.761 (SaskPower Comments), and has been

continually “affected by technical issues,” 89 Fed. Reg. at 39,848. For those reasons,

Boundary Dam does not approach 90%-capture when judged on the Final Rule’s

continuous, facility-wide metric. App.543 (EEI Comments). EPA’s only response consists

of forward-looking optimism—claiming that those technical issues “will definitively not

occur in a different type of * * * system” and that “[b]ased on the experiences of Boundary

Dam Unit 3, key improvements can be implemented in future CCS deployments during

initial design and construction.” 89 Fed. Reg. at 39,849.

EPA next cites Plant Barry, a coal-fired power plant operated by EEI member

Southern Company, as an example of a “fully integrated 25 MWe CCS project with a

capture rate of 90 percent.” Id. at 39,850. But that CCS project captures just a fraction of

the CO2 output of one unit, not the total CO2 output of the entire plant that is required

under the Final Rule. App.743 (Buckeye Institute Comments). Judged by the Final Rule’s

continuous, facility-wide standard, it achieved less than 5% capture. Ibid. As such, it cannot

demonstrate the continuous, facility-wide 90% capture that the Final Rule mandates. EPA

offers no response to this serious critique in its Final Rule.

EPA also points to the Petra Nova system, which “was designed to capture 90

percent of 37 percent of the flue gas produced by a single EGU that was part of the larger

facility.” App.541 (EEI Comments); see 89 Fed. Reg. at 39,849-39,850. But it achieved that

rate of capture only sporadically, with the result being that Petra Nova captured only 33%

of the unit’s (and less than 10% of the eight-unit facility’s) CO2 emissions when judged under

the Final Rule’s metric. App.541 (EEI Comments); App.747 (Buckeye Institute

Comments). While EPA acknowledges that Petra Nova “experienced some technical

challenges,” it wholly ignores that Petra Nova’s facility-wide capture rate is an order of

magnitude below what the Final Rule requires. 89 Fed. Reg. at 39,849-39,850.

EPA’s remaining examples fare worse. CCS demonstration projects at the Warrior

Run power plant in Maryland and the Shady Point power plant in Oklahoma captured 10%

and 5% of facility-wide CO2 emissions, respectively. Id. at 39,849. Project Tundra in North

Dakota and Project Diamond Vault in Louisiana are still in development—not yet built, let

alone operational—and thus provide no support for EPA’s position that CCS at 90%

efficiency has been adequately demonstrated today. Id. at 39,850-39,851.

EPA’s BSER determination for new and modified gas-fired units has even

less real-world support. EPA’s main example of CCS at a gas-fired unit is the Bellingham,

Massachusetts facility. Id. at 39,926. EPA asserts the facility achieved 85-95% CO2 capture,

ibid., but that number represents only the capture rate from a small subset of the facility’s

total CO2 emission sources. App.549-550 (EEI Comments). Judged under the Final Rule’s

facility-wide metric, Bellingham’s CCS captured less than 10% of the facility’s emissions—

an important marker that EPA ignores. Ibid. Moreover, the facility neither transported nor

stored captured CO2, as required by the Final Rule. App.550 (EEI Comments). And it

closed in 2005. Ibid.

EPA also cites the Mongstad technology demonstration center that is testing carbon

capture on a small subset of a facility’s emissions. 89 Fed. Reg. at 39,852, 39,927 & n.768.

However, EPA declined to provide the CO2 capture rate of that test project when measured

on the continuous, facility-wide basis that the Final Rule requires, thereby rendering it

unable to support the Final Rule’s 90%-capture requirement.

In an effort to shore up this grossly deficient record for gas-fired units, EPA invokes

uses of CCS on coal-fired units. Id. at 39,924. But EPA does not explain how those examples

support establishing CCS as the BSER for an entirely different type of generation

(turbines instead of boilers) that uses a different fuel (natural gas instead of coal). See

App.551 (EEI Comments) (“EPA * * * examines some demonstrations at coal-based steam

generating units and other industrial processes, but that * * * experience is not comparable

or applicable to natural gas-based units given the different engineering between coal

powered steam turbines and natural gas combined cycle units.”). In any event, EPA’s coal

examples have fatal problems of their own, as detailed above, and thus could not save EPA’s

baseless BSER determination for new and modified gas-fired units even if they were

applicable.

This is not a close call. No power generation facility has deployed a 90%-capture CCS

system required by the Final Rule. By definition, that means the Final Rule’s selected

BSER has not “been adequately demonstrated.” Given that dispositive fact, EPA is unable

to “supply ‘a satisfactory explanation for its action.’” Ohio, 144 S. Ct. at 2054 (quoting State

Farm, 463 U.S. at 43). And its attempt to rely upon far inferior CCS outcomes only confirms

the emerging, still-developing nature of CCS technology. EEI’s members are committed to

CCS and hope that it has a bright future, but much work remains to be done before it can

be “adequately demonstrated” and mandated for deployment nationwide.

EPA exceeded its statutory authority and acted arbitrarily and

capriciously in determining that the Final Rule’s 90%-capture CCS

system “has been adequately demonstrated” to be deployable by the

Final Rule’s January 1, 2032 deadline.

Even if—contrary to the statute—EPA could show adequate demonstration by

using a crystal ball, CCS with 90%-capture still would not be adequately demonstrated to

be deployable in the seven-and-a-half-year timeframe the Final Rule mandates.

As support for its timeline, EPA relies on a report illustrating a “baseline project

schedule for the CO2 capture plant”—i.e., the schedule for installing and deploying carbon

capture at a single plant. 89 Fed. Reg. at 39,874 (citing App.328 (Sargent & Lundy Report)).

EPA cannot reasonably extrapolate from a single hypothetical plant’s construction timeline

to conclude that every unit subject to the 2032 CCS mandate could do so in the same

timeframe, given the resulting demand for equipment and labor and strain on permitting

resources, among other issues. See App.699 (EEI Supplemental Comments) (explaining

how heightened demand and supply chain challenges have extended timeframes to obtain

certain components); App. 714 (EEI Supplemental Comments) (“[D]evelopers of [CO2

pipelines] have cited permitting challenges as the rationale for their decisions to delay,

withdraw, or cancel.”).

Importantly, the report EPA relies on admits that it “does not consider the timeline

or requirements associated with transporting and sequestering the CO2 that is ultimately

captured” and yet emphasizes that “these other infrastructure aspects of the CCS value

chain are critical to the feasibility and timeline of implementing a CCS project.” App.332

(Sargent & Lundy Report); see also id. at App.342. In other words, even the single-plant

timeline only evaluates the lead time for one part of the CCS system—the capture of

carbon. And the unconsidered transport and storage aspects of CCS present heightened

timing challenges. Recent experience demonstrates the difficulty of constructing transport

pipelines, as three projects to build 3,650 miles of new pipeline—which EPA trumpeted in

the proposal—have since been either postponed or cancelled. App.714 (EEI Supplemental

Comments). EPA asserts that most units have nearby access to geologic storage for carbon,

rendering extended pipeline networks unnecessary. 89 Fed. Reg. at 39,856, 39,861-39,862.

But it ignores the many units that it concedes lack such access. That is impermissible,

because “[t]o be achievable, * * * a uniform standard must be capable of being met under

[the] most adverse conditions which can reasonably be expected to recur.” Nat’l Lime

Ass’n, 627 F.2d at 431 n.46 (emphasis added). EPA cannot look only to the most favorable

conditions instead.

In any event, pipelines of any distance must be permitted by relevant authorities,

and EPA’s unsupported claim that shorter pipelines “would not likely be as challenging to

permit and build,” 89 Fed. Reg. at 39,861, ignores the reality of constructing modern

pipeline infrastructure. See PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 490-492

(2021) (describing six-plus years of regulatory proceedings and litigation to secure right to

condemn land needed for a relatively short (116-mile) natural gas pipeline). EPA has little

more than blind faith that the vast CO2 pipeline network necessary for CCS will spring into

existence before 2032. See 89 Fed. Reg. at 39,855 (“The EPA anticipates that in the coming

years, a large-scale interstate pipeline network may develop to transport CO2.”) (emphases

added).

Similar hurdles plague storage facilities. EPA’s discussion of permitting timelines

for sequestration sites is long on optimism and short on record support. EPA notes that

from 2021 to 2023 the number of permit applications for CO2 injection wells for long-term

storage increased tenfold. Id. at 39,870. Unfortunately, EPA’s permitting resources have

not increased correspondingly; EPA has 130 applications under review but has issued only

eight permits. Ibid. EPA claims it “is devoting increased resources to the Class VI

program” and “expect[s] that the additional resources * * * will lead to increased

efficiencies.” Ibid. These “expectations” are indistinguishable from the “speculation or

surmise” that renders agency action arbitrary and capricious. Bennett v. Spear, 520 U.S.

154, 176 (1997).

And that assumes that appropriate storage sites can be located in the first place.

EPA claims that “[m]ost coal-fired steam EGUs * * * are located in relatively close

proximity to deep saline formations that have the potential to be used as long-term CO2

storage sites.” 89 Fed. Reg. at 39,855 (emphases added). But that, once again, improperly

focuses on the Final Rule’s application in the most favorable rather than the “most adverse”

operating conditions. Nat’l Lime Ass’n, 627 F.2d at 431 n.46. And even then, there is no

guarantee that these “potential” storage sites will prove to be suitable for long-term CO2

storage in practice.

In sum, EPA’s seven-and-a-half-year timeline is built on best-case scenarios and

speculation. EPA may have demonstrated that if everything goes perfectly, some units

somewhere may be able to meet that timeline. But it plainly has not “been adequately

demonstrated” that most—much less all—of the power-generating units subject to the

Final Rule can do so. Instead, EPA impermissibly “ignore[d] * * * ‘important aspect[s] of

the problem.’” Ohio, 144 S. Ct. at 2053 (quoting State Farm, 463 U.S. at 43). Therefore,

EPA’s seven-and-a-half-year timeframe exceeds its statutory authority and is arbitrary and

capricious even if its other BSER determinations could somehow survive review.

II.

Applicants Face Imminent And Irreparable Injury.

Absent a stay, EEI’s members face imminent irreparable harm. The D.C. Circuit

shrugged off Applicants’ serious harms by remarking that the “actual compliance deadlines

do not commence until 2030 or 2032—years after this case will be resolved.” App.269. But

it ignored the demonstrated fact that the Final Rule’s 2032 CCS deadline forces electric

companies to make costly and effectively irreversible decisions now. During the pendency

of this challenge, companies must decide whether to attempt the seemingly impossible task

of timely installing CCS on existing coal and new gas generation or instead seek to avoid

the CCS requirement at great cost. Either option inflicts substantial irreparable harm.

There simply is not sufficient time to install CCS on existing coal and new gas

generation. The U.S. Department of Energy estimates that doing so will take between 8

and 14.5 years—which is longer than the less-than-eight-years the Final Rule provides.

App.356 (Dep’t of Energy Funding Opportunity Announcement). EPA attempted to

downplay its sister agency’s analysis by claiming that it was focused on more experimental,

advanced CCS technologies rather than existing ones. But DOE’s analysis explicitly

addressed the precise kind of CCS technologies that the Final Rule requires—those that

can “capture, transport (if required), and store CO2 from new or existing [coal or gas units]

and * * * achieve the [minimum] unit-wide 90% CO2 capture efficiency (or greater) once

stable operations are achieved.” App.352-353 (emphasis original). Further confirming

DOE’s timeline, the declarants’ intensive, technical assessments conclude that it will take

more than a decade for their companies to install CCS, with many unknowns that could add

months or years. App.772-774 (Adelman Decl. ¶¶ 30-37); App.785 (Bakken Decl. ¶¶ 25-36);

App.802-806 (Bulpitt Decl. ¶¶ 21-29); App.814-823, 830-831 (Burch Decl. ¶¶ 23-46, 76).

Due to these long lead times, any company opting to pursuing CCS installation must

start immediately (and even then surpass the most optimistic of both DOE’s and the

declarants’ time estimates) to have 90%-capable CCS functioning by the Final Rule’s 2032

deadline. Indeed, the Final Rule itself “assumes” that companies will have to begin “work”

on their compliance efforts by “June 2024.” 89 Fed. Reg. at 39,874, 39,893. That would

require the expenditure of many millions of dollars during the pendency of this challenge.

App. 775 (Adelman Decl. ¶ 44); App.801, 806-807 (Bulpitt Decl. ¶¶ 19, 30); App.823-826

(Burch Decl. ¶¶ 47-59). Those substantial sums of money cannot be recovered by Applicants

or their customers if they ultimately prevail in their challenge to the Final Rule. App. 775776 (Adelman Decl. ¶¶ 43-45); App.784-785, 789 (Bakken Decl. ¶¶ 23-24, 36); App.806-807

(Bulpitt Decl. ¶ 30); App.812-813 (Burch Decl. ¶ 19).

Such expenditures are classic irreparable harm, as this Court confirmed in staying

an EPA rule last Term. See Ohio, 144 S. Ct. at 2053 (holding that incurring significant

“nonrecoverable” compliance costs “during the pendency of th[e] litigation” constitutes a

“strong argument[]” on “[irreparable] harm[]”); see also Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 220-221 (1994) (Scalia, J., concurring) (“[C]omplying with a regulation later

held invalid almost always produces the irreparable harm of nonrecoverable compliance

costs.”) (emphasis original); Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594

U.S. 758, 765 (2021) (recognizing a “risk of irreparable harm by depriving [landlords] of

rent payments with no guarantee of eventual recovery”); Philip Morris USA Inc. v. Scott,

561 U.S. 1301, 1304 (2010) (economic losses may be considered irreparable “[i]f

expenditures cannot be recouped”).

The alternative compliance options also inflict irreparable harm. A company may

avoid the CCS requirement by operating new gas units at less than 40% capacity.

Consequently, one option is to build more units that are designed for base-load operation

and then operate them less efficiently to remain below the 40% threshold. App.768-769, 774

(Adelman Decl. ¶¶ 23, 38-39); App.782-783, 789-790, 792 (Bakken Decl. ¶¶ 20, 38, 40, 48);

App.830-831 (Burch Decl. ¶ 76). Another is to build different kinds of units that are designed

to operate at lower capacity, but those types of units produce power less efficiently.

App.769, 774 (Adelman Decl. ¶¶ 24, 39); App.783, 789, 790, 792 (Bakken Decl. ¶¶ 21, 38, 40,

48); App.831 (Burch Decl. ¶ 77). Both paths lead to a less efficient and more costly

generation fleet.

Companies must decide among those generation options now and spend many

millions of dollars building that new generation during the pendency of this challenge, if

they are to navigate the long timelines required for building new generation and meet

growing demand for electricity. App.764, 767-771, 775-776 (Adelman Decl. ¶¶ 7, 18-19, 2223, 26, 28-29, 40-45); App.780-782 (Bakken Decl. ¶¶ 15-18, 41-48); App. 798-799 (Bulpitt Decl.

¶¶ 10-11); App.831-832 (Burch Decl. ¶¶ 80-81). Beyond those immediate costs, companies

risk being effectively locked-in to building less efficient and more costly generation sources

that would inflict harm on themselves and their customers for decades, even if this

challenge were successful. App. 775-776 (Adelman Decl. ¶ 45); App.833 (Burch Decl. ¶ 84).

The non-CCS options for existing coal units also inflict irreparable harm. Each route

to avoiding CCS—accelerated retirement or conversion to gas—requires that millions of

dollars be spent imminently. App.812-814, 826-832 (Burch Decl. ¶¶ 18, 21-22, 60-82).

The D.C. Circuit wrote off this substantial showing of irreparable harm by

concluding that “a stay will not help because the risk remains that the distant deadlines in

EPA’s rule will come back into force at the end of the case.” App.269. But that is not how

the irreparable-harm test for stays works. If it were, then this Court’s recent stay in Ohio

would have been improper because the significant “nonrecoverable” compliance costs that

would have been incurred “during the pendency of th[e] litigation” would have had to be

expended anyway since the same compliance deadlines would spring back into force if EPA

prevailed. 144 S. Ct. at 2053. Yet this Court held that those compliance costs constitute a

“strong argument[]” on “[irreparable] harm[].” Ibid. That makes sense because a stay of a

rule necessarily tolls the rule’s compliance deadlines, as that is the only way to truly

preserve the status quo.6 Otherwise, a stay would be utterly useless, and there would be no

EPA’s consistent practice reflects this reality. See 88 Fed. Reg. 67,102, 67,103-67,104

(Sept. 29, 2023) (“EPA generally anticipates that any future action bringing the Good

Neighbor Plan’s requirements into effect after a stay would phase in the requirements so

as to provide lead times to implement the Good Neighbor Plan’s identified emissions control

strategies comparable to the lead times that the Good Neighbor Plan would have provided

in the absence of the stay, thereby giving parties sufficient time to prepare for

implementation.”); 79 Fed. Reg. 71,663, 71,665 (Dec. 3, 2014) (“[T]his action tolls by three

calendar years dates and years in the regulatory text as previously amended that had not

passed as of December 30, 2011, the date of the stay order.”).

way to obtain much-needed interim relief from regulations that impose serious harm before

judicial review can be completed.

In sum, all roads lead to substantial irreparable harm if a stay is not granted.

Applicants do not have the luxury of waiting to see how this litigation turns out before

acting. They must spend many millions of dollars and make effectively irreversible

decisions now. As a result, an eventual victory in their challenge to the Final Rule will be

hollow, for much of the damage will already have been done. Only a stay can prevent that

injustice.

III.

The Balance Of Harms And The Public Interest Favor A Stay.

Whereas EEI’s member companies face imminent irreparable harm should the

CCS-based standards and guidelines remain in effect, there is no possibility of substantial

and imminent harm to non-Applicants if a stay is granted. EPA admits that utilities have

already achieved unprecedented emission reductions. 89 Fed. Reg. at 39,813; see also West

Virginia, 597 U.S. at 755 (Kagan, J., dissenting) (“Market forces alone caused the power

industry to meet the [Clean Power] Plan’s nationwide emissions target.”). Moreover, most

EEI members that own generation have made voluntary commitments to reduce their CO2

emissions to net-zero and are actively working to accomplish those goals. App.499 (EEI

Comments). A stay would not affect these extant and ongoing emission reductions.

Equally importantly, there is no public interest in requiring compliance with an

unlawful rule. Ala. Ass’n of Realtors, 594 U.S. at 766 (“[O]ur system does not permit

agencies to act unlawfully even in pursuit of desirable ends.”). Rather, the public has a

strong interest in regulatory stability. See In re EPA, 803 F.3d 804, 808 (6th Cir. 2015)

(staying EPA water rule to “temporarily silence[] the whirlwind of confusion that springs

from uncertainty about the requirements of the new Rule and whether they will survive

legal testing”). A stay directly serves that interest here.

Furthermore, the public possesses an intense interest in ensuring that the ongoing

clean energy transition is affordable and reliable. EPA should allow sufficient time for

major technological shifts so that electric companies and their customers are not required

to fund and deploy emerging, not-yet-demonstrated technologies. That is especially true

here, where it is doubtful at best that power companies could fully deploy CCS to achieve

90% CO2 capture by 2032. Once 90%-capture CCS is in fact adequately demonstrated, EPA

can commence a new Section 111 rulemaking establishing it as the BSER. But that is

decidedly not the case today based on EPA’s own record.

CONCLUSION

This Court should stay the Final Rule pending resolution of the merits below, any

petition for writ of certiorari, and merits review (if any) in this Court.

Dated: July 29, 2024

Respectfully submitted,

/s/ Amanda Shafer Berman

Thomas A. Lorenzen

Amanda Shafer Berman

Elizabeth B. Dawson

CROWELL & MORING LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

/s/ Aaron M. Streett

Aaron M. Streett

Counsel of Record

J. Mark Little

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

Counsel for Edison Electric Institute

Megan H. Berge

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, D.C. 20001

Counsel for Oklahoma Gas and Electric

Company and Idaho Power Company

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.