Emergency Application — NACCO Natural Resources Corporation, Applicant v. Environmental Protection Agency, et al.

Supreme Court briefAug 14, 2024

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No. ______

In the Supreme Court of the United States

NACCO NATURAL RESOURCES CORPORATION,

Applicant,

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN,

ADMINISTRATOR,

Respondents.

To the Honorable John G. Roberts, Jr.,

Chief Justice of the United States and

Circuit Justice for the District of Columbia Circuit

EMERGENCY APPLICATION

FOR IMMEDIATE STAY OF FINAL AGENCY ACTION

PENDING DISPOSITION OF A PETITION FOR REVIEW

Charles T. Wehland

JONES DAY

110 N. Wacker Dr., Ste 4800

Chicago, IL 60601

Jeffery D. Ubersax

KUSHNER & HAMED CO., LPA

1375 E. Ninth St., Ste 1930

Cleveland, OH 44114

Yaakov M. Roth

Counsel of Record

Brinton Lucas

Madeline W. Clark

S. Matthew Krsacok

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-7658

yroth@jonesday.com

Counsel for Applicant NACCO Natural Resources Corporation

PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Applicant is NACCO Natural Resources Corporation (NACCO).

Respondents are the United States Environmental Protection Agency (EPA)

and Michael Regan, in his official capacity as Administrator of the EPA.

The other parties to the consolidated proceedings below are:

Petitioners: State of North Dakota; State of West Virginia; State of Alaska;

State of Arkansas; 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 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; Associated

Electric Cooperative, Inc.; Basin Electric Power Cooperative; East Kentucky Power

Cooperative, Inc.; Electric Generators MATS Coalition; Lignite Energy Counsel;

Luminant Generation Company LLC; Midwest Ozone Group; NorthWestern

Corporation; Minnkota Power Cooperative, Inc.; National Mining Association;

National Rural Electric Cooperative Association; Oak Grove Management Company,

LLC; Rainbow Energy Center, LLC; Talen Montana, LLC; Westmoreland Mining

Holdings LLC; Westmoreland Mining; Westmoreland Rosebud Mining LLC.

Intervenors: Air Alliance Houston; Alliance of Nurses for Healthy

Environments; American Academy of Pediatrics; American Lung Association;

American Public Health Association; Chesapeake Climate Action Network; Citizens

for Pennsylvania’s Future; City of Baltimore; City of Chicago; City of New York;

Clean

Air

Council;

Clean

Wisconsin;

Commonwealth

Massachusetts;

Commonwealth of Pennsylvania; District of Columbia; Downwinders at Risk;

Environmental

Defense

Fund;

Environmental

Integrity

Project;

Montana

Environmental Information Center; Natural Resources Council of Maine; Natural

Resources Defense Council; Ohio Environmental Council; Physicians for Social

Responsibility; San Miguel Electric Cooperative, Inc.; Sierra Club; State of

Connecticut; State of Illinois; State of Maine; State of Maryland; State of Michigan;

State of Minnesota; State of New Jersey; State of New York; State of Oregon; State

of Rhode Island; State of Vermont; State of Wisconsin.

The related proceedings are:

North Dakota v. EPA, No. 24-1119 (D.C. Cir. Aug. 6, 2024) (lead case) (order

denying motions for stay), consolidated with: National Rural Electric Cooperative

Association v. EPA, No. 24-1179 (D.C. Cir. Aug. 6, 2024); Oak Grove Management

Company, LLC v. EPA, No. 24-1184 (D.C. Cir. Aug. 6, 2024); Talen Montana, LLC v.

EPA, No. 24-1190 (D.C. Cir. Aug. 6, 2024); Westmoreland Mining Holdings LLC v.

EPA, No. 24-1194 (D.C. Cir. Aug. 6, 2024); America’s Power v. EPA, No. 24-1201 (D.C.

Cir. Aug. 6, 2024); NorthWestern Corporation v. EPA, No. 24-1217 (D.C. Cir. Aug. 6,

2024); Midwest Ozone Group v. EPA, No. 24-1223 (D.C. Cir. Aug. 6, 2024).

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, NACCO submits the following

corporate-disclosure statement: NACCO is a wholly owned subsidiary of NACCO

Industries, Inc. NACCO is not publicly held, but NACCO Industries, Inc., its parent,

is a publicly traded corporation that owns more than 10% of the stock of NACCO. No

other publicly held corporation owns more than 10% of the stock of NACCO.

iii

TABLE OF CONTENTS

Page

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

OPINIONS BELOW ..................................................................................................... 4

JURISDICTIONAL STATEMENT .............................................................................. 4

STATUTORY PROVISIONS INVOLVED ................................................................... 4

STATEMENT OF THE CASE...................................................................................... 4

Statutory Background ............................................................................. 4

The Mercury and Air Toxics Standards ................................................. 7

Revisions to the Mercury and Air Toxics Standards ............................. 9

Procedural History ................................................................................ 13

REASONS FOR GRANTING THE APPLICATION ................................................. 13

II.

EPA’S REVISED STANDARDS ARE NOT “NECESSARY” UNDER § 7412

BECAUSE THEY DO NOT ADVANCE PUBLIC HEALTH. ......................................... 14

EPA’s Own Analysis Establishes That the MATS Rule Revisions

Are Not “Necessary.” ............................................................................. 15

EPA’s Counterarguments Misunderstand the Statute........................ 19

THE EQUITIES FAVOR A STAY ............................................................................ 22

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

INDEX OF APPENDICES

Appendix A

Order of the United States Court of Appeals for the District

of Columbia Circuit Denying Motions for Stay (Aug. 6, 2024)

Appendix B

42 U.S.C. § 7412

Appendix C

National Emission Standards for Hazardous Air Pollutants:

Coal- and Oil-Fired Electric Utility Steam Generating Units

Review of the Residual Risk and Technology Review, 89 Fed.

Reg. 38508 (May 7, 2024)

Appendix D

Declaration of Christopher D. Friez (May 30, 2024)

TABLE OF AUTHORITIES

Page(s)

CASES

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) ................................................................................................ 23

Armour & Co. v. Wantock,

323 U.S. 126 (1944) ................................................................................................ 15

Biden v. Nebraska,

143 S. Ct. 477 (2022) .............................................................................................. 25

Columbia Broad. Sys. v. United States,

316 U.S. 407 (1942) ................................................................................................ 24

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ............................................................................................... 17

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................................................................ 15

Labrador v. Poe,

144 S. Ct. 921 (2024) .............................................................................................. 25

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) ............................................................................................ 15

Michigan v. EPA,

576 U.S. 743 (2015) ............................................................ 1-8, 12, 14, 16-18, 20, 21

NRDC v. EPA,

529 F.3d 1077 (D.C. Cir. 2008)........................................................................... 6, 22

Ohio v. EPA,

144 S. Ct. 2040 (2024) ................................................................................ 13, 23, 25

United States v. Texas,

143 S. Ct. 51 (2022) ................................................................................................ 25

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................................................................ 4, 19

TABLE OF AUTHORITIES

Page(s)

White Stallion Energy Ctr., LLC v. EPA,

748 F.3d 1222 (D.C. Cir. 2014)..................................................................... 8, 19, 24

Winter v. NRDC,

555 U.S. 7 (2008) .................................................................................................... 25

STATUTES

5 U.S.C. § 705 ............................................................................................................. 1, 4

28 U.S.C. § 1254 ............................................................................................................. 4

28 U.S.C. § 1651 ............................................................................................................. 1

28 U.S.C. § 2101 ....................................................................................................... 4, 25

42 U.S.C. § 7412 ............................................................ 1, 2, 4, 5, 7, 8, 11, 14, 16, 18-21

42 U.S.C. § 7607 ............................................................................................................. 4

OTHER AUTHORITIES

65 Fed. Reg. 79825 (Dec. 20, 2000) ......................................................................... 7, 10

70 Fed. Reg. 19992 (Apr. 15, 2005) ............................................................................. 19

71 Fed. Reg. 17729 (Apr. 7, 2006) ............................................................................... 19

71 Fed. Reg. 76603 (Dec. 21, 2006) ............................................................................. 19

72 Fed. Reg. 50716 (Sept. 4, 2007) .............................................................................. 19

73 Fed. Reg. 62384 (Oct. 20, 2008) .............................................................................. 19

77 Fed. Reg. 9304 (Feb. 16, 2012) ........................................................................... 7, 16

81 Fed. Reg. 24420 (Apr. 25, 2016) ............................................................................... 8

85 Fed. Reg. 31286 (May 22, 2020) ............................................................................... 9

86 Fed. Reg. 7037 (Jan. 25, 2021) ................................................................................. 9

vii

TABLE OF AUTHORITIES

Page(s)

88 Fed. Reg. 24854 (Apr. 24, 2023) ......................................................................... 9, 11

89 Fed. Reg. 38508 (May 7, 2024) ....................................... 1, 2, 4, 10-12, 19, 20, 22-24

EPA, Biden-Harris Administration Finalizes Suite of Standards to

Reduce Pollution from Fossil Fuel-Fired Power Plants

(Apr. 25, 2024) ........................................................................................................ 11

EPA, In Perspective: the Supreme Court’s Mercury and Air Toxics Rule

Decision (June 30, 2015) .......................................................................................... 1

EPA, Regulatory Impact Analysis for the Final National Emission

Standards for Hazardous Air Pollutants (2024) ............................. 2, 10, 11, 16, 18

EPA, Residual Risk Assessment for the Coal- and Oil-Fired EGU

Source Category in Support of the 2020 Risk and Technology Review

Final Rule (2019) .................................................................................................... 11

Merriam Webster’s Collegiate Dictionary (10th ed. 1994) .......................................... 15

NACCO Comment (June 23, 2023) ......................................................................... 2, 11

NMA Comment (Jan. 15, 2016) ............................................................................... 9, 24

Random House Collegiate Dictionary (rev. ed. 1980) ................................................. 15

viii

To the Honorable John G. Roberts, Jr., Chief Justice of the United States

and Circuit Justice for the District of Columbia Circuit:

Pursuant to Rule 23 of this Court, 5 U.S.C. § 705, and 28 U.S.C. §§ 1651 and

2101(f), NACCO respectfully requests an immediate stay of a final EPA rule titled

National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired

Electric Utility Steam Generating Units Review of the Residual Risk and Technology

Review, 89 Fed. Reg. 38508 (May 7, 2024) (Rule). NACCO filed a petition for review

of the Rule in the D.C. Circuit and sought a stay of the Rule during litigation. On

August 6, 2024, the D.C. Circuit denied that and other stay motions.

INTRODUCTION

Twelve years ago, EPA imposed new emission standards for power plants that

were projected to cost $9.6 billion each year while producing only $4 to $6 million in

annual benefits. The Clean Air Act authorized this type of regulation only if it was

“appropriate and necessary,” but the agency argued that these exorbitant costs did

not factor into that equation. 42 U.S.C. § 7412(n)(1)(A). Three years later, this Court

called hogwash: “One would not say that it is even rational, never mind ‘appropriate,’

to impose billions of dollars in economic costs in return for a few dollars in health or

environmental benefits.” Michigan v. EPA, 576 U.S. 743, 752 (2015). But by then it

was too late. Because the standards had not been stayed during those three years,

EPA boasted that the majority of power plants had already been forced to comply.

EPA, In Perspective: the Supreme Court’s Mercury and Air Toxics Rule Decision (June

30, 2015), https://perma.cc/D9NK-CNBB (2015 Post).

Here we go again. Nearly a decade after Michigan, EPA has revised these

standards, forcing emissions to drop by another 67% or more. This time, the agency

“considered” the Rule’s costs, which it pegged at $860 million. See Rule 38552, 38555.

But EPA fell off the other side of the horse, refusing to consider whether there are

any resulting benefits to public health. Reminiscent of its rejected reasoning from the

last go-around, the agency insisted that the statutory mandate to determine whether

a tighter standard was “necessary” merely required it to ask if “additional reductions

can be obtained, without evaluating” whether any “risk … would be reduced.” Rule

38514. In short, the agency said it would follow this Court’s directive to “consider” the

costs of its new regulation—but refused to weigh them against anything.

Science boxed EPA into that absurd position. Coal plants had been subjected

to § 7412 regulation based on the risk of carcinogenic and neurotoxic emissions. Yet

by 2020, those emissions had already fallen “below levels of concern from a public

health standpoint.” EPA, Regulatory Impact Analysis for the Final National Emission

Standards for Hazardous Air Pollutants ES-12 (2024) (RIA), https://perma.cc/VCG2RESL. The highest lifetime cancer risk from emissions from any coal plant was just

0.344-in-1 million—far below the Act’s 1-in-1 million threshold for deregulating a

category of sources, see NACCO Comment 15 (June 23, 2023), https://perma.cc/T36U567X—and EPA could identify no other “appreciable” health risks either, RIA 4-4.

Because EPA could not claim that further reductions would result in any meaningful

health benefit, it was left to deny that there was a need “to identify hazards to public

health … to justify regulation” at this stage, no matter the cost. Rule 38514.

This case is therefore the flipside of Michigan. It is meaningless to consider a

rule’s costs without considering its corresponding benefits. If anything, the violation

here is even more obvious as a matter of both statutory text and common sense. To

borrow from this Court’s decision, it is not even rational to force plants to shoulder

nearly $1 billion in costs in exchange for no benefits to public health, when those

benefits are the entire point of this Clean Air Act provision. See 576 U.S. at 752.

Regulation for the sake of regulation is not “appropriate,” let alone “necessary.”

The D.C. Circuit nevertheless denied relief, stating only that “Petitioners

have not satisfied the stringent requirements for a stay pending court review.” App.

1a. And with that, history is poised to repeat itself. As in Michigan, the Rule’s threeyear compliance window virtually guarantees that the Nation’s coal plants will be

forced to get with the program (or close) before this Court can review a final judgment,

leaving EPA with a win on the ground even if it suffers a loss on the books.

This Court should act now to ensure that does not occur. The case for a stay

is straightforward: The Rule’s benefits-blind approach will not survive on the merits,

and the harms from allowing these standards to take effect in the meantime will be

both swift and irreparable. And given that the Rule concededly does not come with

any meaningful public health benefit, it is not as if EPA can credibly worry about any

harms from a stay. In the alternative, this Court should treat this application as a

petition for a writ of a certiorari before judgment, grant the petition, and review the

Rule in the upcoming Term. Given the nature and effect of EPA’s error, there is much

to be lost, and little to be gained, from prolonging these proceedings.

OPINIONS BELOW

The D.C. Circuit’s order denying applicant’s motion for a stay is not reported

but is reproduced at App. 1a-2a. The Rule is published at 89 Fed. Reg. 38508 (May 7,

2024), and reproduced at App. 56a-141a.

JURISDICTIONAL STATEMENT

The Court of Appeals has jurisdiction under 42 U.S.C. § 7607(b)(1). This Court

has jurisdiction under 28 U.S.C. §§ 1254(1) and 1651, and it may grant the requested

relief under 5 U.S.C. § 705 and 28 U.S.C. §§ 1651(a) and 2101(f).

STATUTORY PROVISIONS INVOLVED

The core provision at issue, 42 U.S.C. § 7412, is reproduced at App. 3a-55a.

STATEMENT OF THE CASE

Statutory Background

“The Clean Air Act establishes three main regulatory programs to control air

pollution from stationary sources such as power plants.” West Virginia v. EPA, 597

U.S. 697, 707 (2022). The program here is known as the “Hazardous Air Pollutants

(HAP) program, set out in Section 112, § 7412.” Id. As its name suggests, this program

“targets pollutants”—apart from ones “already covered by” another scheme—“that

present ‘a threat of adverse human health effects,’ including substances known or

anticipated to be ‘carcinogenic, mutagenic, teratogenic, neurotoxic,’ or otherwise

‘acutely or chronically toxic.’” Id. at 707-08. There are currently “more than 180

specified ‘hazardous air pollutants,’” ranging from asbestos and benzene, to mercury

and manganese, to selenium and beyond. Michigan, 576 U.S. at 747; see § 7412(b)(1).

In general, the HAP program covers sources based on “how much pollution the

source emits.” Michigan, 576 U.S. at 747. Sources that annually emit over 10 tons of

a single hazardous pollutant or over 25 tons of a combination of hazardous pollutants

qualify as “major” sources subject to automatic regulation. Id. Sources with emissions

below those thresholds are known as “area” sources; such a source is subject to HAP

limits “if it ‘presents a threat of adverse effects to human health or the environment

warranting regulation.’” Id. at 748 (quoting § 7412(c)(3)) (ellipsis omitted).

Sensitive to the impacts of regulation on electricity costs, however, Congress

created “a unique procedure” to “determine the applicability of the program to fossilfuel-fired power plants”—known in this provision as “electric utility steam generating

units.” Id. Specifically, Congress instructed EPA to “perform a study of the hazards

to public health reasonably anticipated to occur as a result of emissions by power

plants of hazardous air pollutants,” taking into account that these plants already face

various other requirements under the Clean Air Act. Id. (quoting § 7412(n)(1)(A))

(brackets omitted). If EPA determines that “regulation is appropriate and necessary

after considering the results of the study,” only then shall it regulate power plants

under the HAP program. § 7412(n)(1)(A) (emphasis added).

EPA has “interpreted the Act to mean” that if it finds it to be “appropriate and

necessary” to regulate power plants under the HAP program, they “become subject to

regulation on the same terms as ordinary major and area sources.” Michigan, 576

U.S. at 748. This Court has “assume[d] without deciding” that this is a permissible

construction of the statute—a question on which EPA is owed no deference. Id.

For other sources covered by the HAP program, “EPA must first divide [them]

into categories and subcategories in accordance with statutory criteria.” Id.; see

§ 7412(c)(1). EPA then sets “certain minimum emission regulations, known as floor

standards,” or “MACT” standards, for “each category or subcategory.” Michigan, 576

U.S. at 748. These standards generally “reflect the emissions limitations already

achieved by the best-performing 12% of sources within the category or subcategory.”

Id. at 748-49 (citing § 7412(d)(3)). EPA “may also impose more stringent emissions

regulations,” dubbed “beyond-the-floor standards,” id. at 749, if it concludes that the

stricter target is “achievable” after “taking into consideration the cost of achieving

such emission reduction” and other considerations, § 7412(d)(2).

EPA’s work is not done, however. “[W]ithin 8 years after” it sets standards—

whether at the floor or beyond—it must adopt a more stringent limit if “required to

provide an ample margin of safety to protect public health” or “to prevent, taking into

consideration costs, energy, safety, and other relevant factors, an adverse

environmental effect.” § 7412(f)(2). The agency refers to this check as the “‘residual

risk review.’” Rule 38513. It treats a health risk as “‘presumptively acceptable’” for

these purposes if “no individual would face an excess lifetime cancer risk of greater

than 100-in-one million.” NRDC v. EPA, 529 F.3d 1077, 1080 (D.C. Cir. 2008).

In addition to this one-time process focused exclusively on risk, the Act compels

EPA to more generally “review, and revise as necessary (taking into account

developments in practices, process, and control technologies), emission standards”

under the HAP program “every 8 years.” § 7412(d)(6) (emphasis added).

There is one off-ramp from this endless cycle. Since the purpose of § 7412 is to

combat hazardous pollutants, the Act contemplates that EPA will deregulate sources

that no longer pose health risks. EPA may delist a category when none of its sources

emits carcinogens at a level that “may cause a lifetime risk of cancer greater than one

in one million” to the “most exposed” individual. § 7412(c)(9)(B)(i). The agency may

likewise delist a category whose sources do not produce non-carcinogenic emissions

above “a level which is adequate to protect public health with an ample margin of

safety,” or produce an “adverse environmental effect.” § 7412(c)(9)(B)(ii).

The Mercury and Air Toxics Standards

In 2000, after completing the study required by § 7412(n)(1), EPA concluded

that regulating power plants under the HAP program was “appropriate and

necessary.” 65 Fed. Reg. 79825, 79826, 79830 (Dec. 20, 2000). Flip-flopping ensued

over the next decade, but EPA ultimately reverted to that finding in 2012. 77 Fed.

Reg. 9304 (Feb. 16, 2012). In its view, regulation was “‘appropriate’ because (1) power

plants’ emissions of mercury and other hazardous air pollutants posed risks to human

health and the environment and (2) controls were available to reduce these emissions.”

Michigan, 576 U.S. at 749. And regulation was “‘necessary’ because the imposition of

the Act’s other requirements did not eliminate these risks.” Id.

In addition to reaffirming this finding, the 2012 rule “divided power plants into

subcategories[] and promulgated floor standards.” Id. Existing power plants had

three years to comply with these new standards—known as the “Mercury and Air

Toxics Standards (MATS).” 77 Fed. Reg. at 9304, 9399.

At a steep price: According to the regulatory impact analysis included with the

rule (a step required by Executive Order), the original MATS rule was projected to

“force power plants to bear costs of $9.6 billion per year” in exchange for only “$4 to

$6 million” in annual benefits. Michigan, 576 U.S. at 749. EPA nevertheless issued

the rule on the premise “that ‘costs should not be considered’ when deciding whether

power plants should be regulated under § 7412.” Id.

The 2012 rule was challenged in the D.C. Circuit the day it was published.

More than two years later, the court of appeals upheld the regulation over a dissent

by then-Judge Kavanaugh, who emphasized that it is “just common sense and sound

government practice” to account for both “the benefits from the regulations” and “how

much the regulations would cost.” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d

1222, 1258-59 (D.C. Cir. 2014) (Kavanaugh, J., dissenting in part).

More than a year after that, this Court reversed. Michigan, 576 U.S. at 760. It

explained that “[r]ead naturally in the present context, the phrase ‘appropriate and

necessary’ requires at least some attention to cost,” consistent with the background

“understanding that reasonable regulation ordinarily requires paying attention to

the advantages and the disadvantages of agency decisions.” Id. at 752-53. Because

“EPA interpreted § 7412(n)(1)(A) unreasonably when it deemed cost irrelevant,” this

Court sent the case back to the D.C. Circuit, id. at 760, which remanded the matter

to EPA while leaving the MATS rule in place. Order, White Stallion, No. 12-1100 (D.C.

Cir. Dec. 15, 2015). The following year, EPA issued a supplemental appropriate-andnecessary finding that accounted for cost. 81 Fed. Reg. 24420 (Apr. 25, 2016).

By the time of this Court’s June 2015 decision, however, the MATS rule—

which had not been stayed in the interim—had largely achieved EPA’s desired effect.

The day after this Court’s ruling, EPA trumpeted that “the majority of power plants

are already in compliance or well on their way to compliance” with “the rule, which

remains in effect today.” 2015 Post. What the agency left unsaid was that the rule

had also produced “a wave of coal unit retirements” resulting in the loss of around

19% of the Nation’s total coal capacity (60 GW out of 315 GW). NMA Comment 2, 190

n.2 (Jan. 15, 2016), https://perma.cc/7WNL-NKLG. Nor did the agency mention that

40,000 coal miners had lost their jobs since 2012. Id. at 4.

Revisions to the Mercury and Air Toxics Standards

Eight years after issuing its 2012 standards, EPA conducted the reviews called

for by § 7412(f)(2) and § 7412(d)(6). It concluded that no revisions were necessary. 85

Fed. Reg. 31286 (May 22, 2020). With respect to the one-time residual risk review,

EPA found the existing standards “provide[d] an ample margin of safety to protect

public health and prevent an adverse environmental effect.” Id. at 31314. As for the

recurring review, EPA likewise determined a change was “not necessary” because

there had been “no cost-effective developments” in technology. Id. at 31318.

Less than a year later, President Biden ordered EPA to consider “suspending,

revising, or rescinding” those findings. Protecting Public Health and the Environment

and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037, 7038 (Jan. 25,

2021). So EPA redid both reviews. 88 Fed. Reg. 24854 (Apr. 24, 2023).

When it came to the one-time residual risk review, there was no way around

the science. EPA’s original primary justification for regulating power plants under

the HAP program was that power plants emitted high levels of mercury. See 65 Fed.

Reg. at 79827. Mercury turns into highly toxic methylmercury, accumulates in fish,

and can then be ingested by humans who eat that fish. Rule 38515, 38556. Although

EPA could not quantify “how much of the methylmercury in fish consumed by the

U.S. population is due to electric utility emissions relative to other mercury sources,”

it determined in 2012 that regulation was warranted due to the significant volume of

mercury emissions from power plants. 65 Fed. Reg. at 79828.

EPA acknowledged, however, that since 2012, methylmercury exposure from

power plant emissions had dropped “below levels of concern from a public health

standpoint.” RIA ES-12. Indeed, even for the most vulnerable human populations

(subsistence fishers), methylmercury exposure was already “below the presumptive

acceptable cancer risk threshold and noncancer health-based thresholds.” RIA 4-5;

see Rule 38556 (“Methylmercury exposure to subsistence fishers from lignite-fired

units is below the current [reference dose],” which means it is “unlikely to be

associated with appreciable risk of deleterious effects across the population.”); Rule

38541 (similar). Further reduction of mercury emissions would thus yield benefits so

small that they could not reliably be extrapolated to the “broader population of fish

consumers.” RIA 4-5. Likewise, EPA observed that the cancer risk from non-mercury

HAP emissions already “fall[s] within the acceptable range,” and it could not “identify

or quantity noncancer benefits” from a further reduction. RIA 4-7.

Revisiting its work at the Administration’s behest, EPA was forced to concede

that its 2020 analysis was “rigorous and robust” and had properly found “low residual

risk” to public health from power plants. 88 Fed. Reg. at 24866. In particular, “the

estimated maximum individual lifetime cancer risk” for all covered plants “was 9-in1 million,” with “the major contributor” being four “oil-fired” plants in Puerto Rico.

Id. at 24863 & n.16. Indeed, those four facilities were the only sources posing a

“cancer risk at or above 1-in-1 million,” the threshold for delisting. Id. Looking at coal

plants alone, the risk was lower still. The highest lifetime cancer risk for any coalfired plant was just 0.344-in-1 million. NACCO Comment 15 (citing EPA, Residual

Risk Assessment for the Coal- and Oil-Fired EGU Source Category in Support of the

2020 Risk and Technology Review Final Rule, App. 10, Tbls. 1 & 2a (2019)).

Based on the absence of public health risks, EPA thus agreed that no “revisions

to the 2020 Residual Risk Review” were warranted. 88 Fed. Reg. at 24866. As to the

recurring review under § 7412(d)(6), however, the agency thought the statute gave it

more room to maneuver. So it took the Executive Order’s hint and changed course.

EPA now concluded that more demanding standards were “necessary” under § 7412

even though they would not advance public health. Id. In 2024, EPA finalized these

revisions to the 2012 standards in the Rule here, which tightens the standard “for

toxic metals by 67 percent” and the one for “mercury from existing lignite-fired” coal

plants by “70 percent.” EPA, Biden-Harris Administration Finalizes Suite of

Standards to Reduce Pollution from Fossil Fuel-Fired Power Plants (Apr. 25, 2024)

(Suite). Power plants must comply by July 8, 2027. Rule 38519.

As in Michigan, the agency complied with an Executive Order by performing a

“Regulatory Impact Analysis” that recounted the costs and benefits of the more

stringent standards. Rule 38510. That analysis estimated power plants would incur

$860 million in compliance costs. Rule 38513. But EPA could not quantify any benefits

to public health from the reduced emissions of hazardous air pollutants. Id. Instead,

EPA could only quantify “ancillary benefits,” meaning those unrelated to the HAP

program’s purposes. Michigan, 576 U.S. at 749. Specifically, EPA identified $300

million in health benefits from the reduction of ozone and particulate matter

(substances not regulated by the HAP regime), and $130 million in ostensible “climate

benefits.” Rule 38513. Even with these ancillary benefits taken into account, EPA

could only estimate “negative net monetized benefits.” Rule 38511, 38513.

As in Michigan, EPA made clear it “did not rely on” this cost-benefit “analysis

in choosing the appropriate standard.” Rule 38553; see Michigan, 576 U.S. at 750. To

the contrary, EPA thought it could determine that tighter standards were “necessary”

under the Act without considering whether they would have the benefit of reducing

any health “risks” from HAP emissions. Rule 38525. Instead, the agency read

§ 7412(d)(6) to require it to “continually reassess standards to determine if additional

reductions can be obtained, without evaluating the specific risk associated with the

HAP emissions that would be reduced.” Rule 38514 (emphasis added). It therefore

brushed aside the concern that the Rule would “impose high costs” without offsetting

any meaningful “risk to the environment or public health.” Id.

Procedural History

Numerous states and industry participants, including NACCO, challenged the

Rule in the D.C. Circuit and sought a stay pending review. In a short, unsigned order,

the D.C. Circuit denied the stay. App. 1a-2a. The court’s explanation consisted, in its

entirety, of this sentence: “Petitioners have not satisfied the stringent requirements

for a stay pending court review.” App. 1a.

REASONS FOR GRANTING THE APPLICATION

When faced with a request to stay a regulation, this Court asks “(1) whether

the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable

injury without a stay, (3) whether the stay will substantially injure the other parties

interested in the proceedings, and (4) where the public interest lies.” Ohio v. EPA,

144 S. Ct. 2040, 2052 (2024). All factors weigh in favor of a stay here.

On the merits, this case follows a fortiori from Michigan. EPA acknowledges it

must consider costs in evaluating whether revisions are necessary. How could it not

also be required to consider benefits? Considering one without the other is incoherent.

This is like buying an electric car because of the tax credits, even though you cannot

drive. EPA originally subjected power plants to regulation under this program to

address the health risks posed by their emissions, yet those threats are already far

below any level of health concern, and further reductions will not help. In light of that

undisputed scientific predicate, how could tightening up those original standards be

remotely “necessary”? It is not, and if the D.C. Circuit thinks otherwise, its decision

would be certworthy, as Michigan itself confirms.

As for the equities, it is hard to imagine an easier case for a stay. Even if EPA

were correct that the Clean Air Act requires it to impose exorbitantly costly standards

that will not improve public health by one measurable iota, the very premises of that

question presented leave no doubt where the balance of equities lies. Delaying this

Rule’s effective date would not forestall any benefits to public health, yet allowing it

to take effect immediately will impose real-world costs—and, in all likelihood, make

it impossible for this Court to ever order any meaningful relief. EPA should not once

again be permitted to win by losing; this Court should therefore grant relief.

EPA’S REVISED STANDARDS ARE NOT “NECESSARY” UNDER § 7412 BECAUSE

THEY DO NOT ADVANCE PUBLIC HEALTH.

By EPA’s own account, its revisions to the 2012 MATS rule impose exorbitant

costs in exchange for no meaningful public health benefits—yet are nonetheless both

“necessary” and “appropriate” under the Clean Air Act. That makes no more sense

now than it did in Michigan; this time, EPA has simply blinded itself to the other side

of the scale. According to the agency, benefits are irrelevant: “less is better” when it

comes to these emissions, period. C.A. Stay Opp. 1. EPA is wrong. Section 7412(n)(1)

standards “are a safety measure,” designed to curtail public health “harms caused by

power plants.” Michigan, 576 U.S. at 783 (Kagan, J., dissenting). It follows that EPA

must account for public health benefits in deciding whether revisions to those

standards are “necessary.” Because EPA nonetheless plowed ahead with this costly

Rule, blind to its lack of public health benefits, applicants are likely to succeed in

vacating the Rule—if not in the D.C. Circuit, then in this Court.

EPA’s Own Analysis Establishes That the MATS Rule Revisions

Are Not “Necessary.”

Section 7412(d)(6) permits EPA to revise HAP standards only “as necessary.”

The HAP program’s objective is to address hazardous pollutants. Revisions that will

not help abate the relevant hazard are therefore, almost by definition, not “necessary.”

Because, by EPA’s own assessment, its revisions to the MATS rule will not reduce

the public health risks that subjected coal plants to regulation in the first place, those

revisions are plainly not “necessary” under the Clean Air Act, but instead arbitrary

and capricious under the APA. All of this seems so obvious it should really go without

saying, particularly after Michigan (and even more so after Loper Bright Enterprises

v. Raimondo, 144 S. Ct. 2244 (2024)). But here we are.

“It is a ‘fundamental canon of statutory construction that the words of a statute

must be read in their context and with a view to their place in the overall statutory

scheme.’” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). That

is particularly true when it comes to “the word ‘necessary,’ which has always been

recognized as a word to be harmonized with its context.” Armour & Co. v. Wantock,

323 U.S. 126, 129-30 (1944). Something may be “necessary” if it is “absolutely needed,”

Merriam Webster’s Collegiate Dictionary (10th ed. 1994), or “essential, indispensable,

or requisite,” Random House Collegiate Dictionary (rev. ed. 1980). Only context can

answer the obvious question raised by the term—“needed” or “essential” for what? In

particular, one cannot evaluate necessity without having an objective in mind.

Statutory context supplies that objective.

Determining whether revisions are “needed” under § 7412(d)(6) thus requires

understanding the statutory scheme as a whole. EPA issued the 2012 MATS rule

under a provision that authorizes it to regulate power plants only if “such regulation

is appropriate and necessary” after considering the results of “a study of the hazards

to public health reasonably anticipated to occur as a result of [their] emissions.”

§ 7412(n)(1)(A) (emphasis added). As that text makes plain, § 7412(n)(1)(A) is meant

to address hazards to public health. That is, these standards “are a safety measure.”

Michigan, 576 U.S. at 783 (Kagan, J., dissenting). EPA recognized as much in the

2012 rule, stating that its regulation of power plants under § 7412 was “necessary”

because hazardous pollutants from these sources were (then) “reasonably anticipated

to pose hazards to public health.” 77 Fed. Reg. at 9363.

It follows that EPA must again use public health as the benchmark when

deciding whether revisions are “necessary” under § 7412(d)(6). Whether regulation is

“necessary” turns on whether there is a “need for regulation.” Michigan, 576 U.S. at

757. And the relevant “need” is to preserve public health. It is therefore not enough

that, as EPA emphasized, tighter standards will (by definition) reduce emissions and

exposure to them. E.g., RIA 4-1, 4-2, 4-5. Reduced exposure in the abstract is not a

benefit to public health; if it were, the required study of anticipated health hazards

would have been much simpler. For this provision at least, the question is whether

the emissions will cause public health harms. Reduction for reduction’s sake is not

the objective. Reducing emissions for its own sake therefore cannot be what this

provision means when it asks if revised standards are “necessary.”

EPA’s obligation to consider the benefits of its rule is reinforced by background

APA principles. Reasoned decisionmaking requires “a consideration of the relevant

factors,” and, with rare exception, those factors will include both “the advantages and

the disadvantages of agency decisions.” Michigan, 576 U.S. at 750, 753 (emphasis

omitted). As this Court explained in admonishing EPA for ignoring costs in deciding

the 2012 MATS rule was “appropriate and necessary” in the first place, “[o]ne would

not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars

in economic costs in return for a few dollars in health or environmental benefits.” Id.

It is equally irrational and inappropriate to consider only the costs of regulation,

while ignoring that it will not yield any marginal benefits to the statutory goal.

As Justice Breyer put it, “every real choice requires a decisionmaker to weigh

advantages against disadvantages.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208,

232 (2009) (opinion of Breyer, J.). Any other approach “would bring about irrational

results”—“it would make no sense to require plants to ‘spend billions to save one more

fish or plankton,’” “even if the industry might somehow afford those billions.” Id. at

232-33. That is particularly true “in an age of limited resources available to deal with

grave environmental problems,” where “too much wasteful expenditure devoted to

one problem may well mean considerably fewer resources available to deal effectively

with other (perhaps more serious) problems.” Id. at 233. That is why every Justice in

Michigan agreed that “[u]nless Congress provides otherwise, an agency acts

unreasonably” if it refuses to “take costs into account in some manner before imposing

significant regulatory burdens.” 576 U.S. at 769 (Kagan, J., dissenting).

By ignoring public health, EPA fell into the same trap as in Michigan, and the

same trap that Justice Breyer warned about. As set forth above, the original MATS

rule determined that power plants should be regulated under § 7412 because their

mercury emissions threatened public health. Whether because those standards did

their job or for other reasons, EPA acknowledged a decade later that there is now a

“lack of quantifiable risks” from these power plants’ emissions; they have dropped

“below levels of concern from a public health standpoint.” RIA 4-5, ES-12. Again, the

highest lifetime excess cancer risk from any coal plant now stands nearly an order of

magnitude below EPA’s threshold for delisting a category of sources. See NACCO

Comment 15. And the dissipation of health risks is not limited to cancer; EPA was,

by its own express admission, unable to identify any other “appreciable” risks either.

RIA 4-4. Put simply, the original reason for subjecting coal-fired power plants to HAP

regulation was gone. See supra at 10-11. Yet instead of declaring victory and packing

up shop, EPA decided it was time to double down, insisting that it was now “necessary”

for the industry to shoulder nearly a billion dollars in additional costs, despite the

lack of any marginal health benefits. That cannot withstand scrutiny. By ignoring

half of the cost-benefit equation, EPA once again “entirely fail[ed] to consider an

important aspect of the problem.” Michigan, 576 U.S. at 752 (alteration omitted).

In short, imposing massive compliance costs for no public health benefits is not

“necessary” under the Clean Air Act, and EPA’s insistence otherwise is arbitrary and

capricious under the APA. For both reasons, applicants are likely to prevail.

EPA’s Counterarguments Misunderstand the Statute.

Incredibly, EPA insists public health need not be considered under § 7412(d)(6).

That is a marked change from its past rulemakings, which recognize the centrality of

public health to the analysis. For decades, EPA noted that the findings that underlie

an evaluation of whether a regulation provides an ample margin of safety for public

health “should be key factors” in deciding whether regulation is necessary under

§ 7412(d)(6). 70 Fed. Reg. 19992, 20009 (Apr. 15, 2005); see 71 Fed. Reg. 17729,

17731-32, 17736 (Apr. 7, 2006) (same); 71 Fed. Reg. 76603, 76608-09 (Dec. 21, 2006)

(same); 72 Fed. Reg. 50716, 50730 (Sept. 4, 2007) (same); see also 73 Fed. Reg. 62384,

62404 (Oct. 20, 2008) (“the instruction to revise ‘as necessary’ indicates EPA” may

consider “relevant factors” beyond technology, “such as costs and risk”). As even the

Rule notes (with considerable understatement), “EPA has considered risks as a factor

in some previous [§ 7412(d)(6)] reviews.” Rule 38525. This change in position is alone

reason to be dubious of EPA’s interpretation. See West Virginia, 597 U.S. at 725.

Regardless, EPA is wrong on the merits. EPA defends its refusal to account for

the absence of public health benefits by characterizing § 7412 as a technology-based

statute that reflects Congress’s goal to reduce emissions as much “as achievable.” C.A.

Stay Opp. 15. In theory, Congress could demand that an agency regulate to the max,

regardless of benefits. But Congress should not lightly be assumed to have demanded

that regulation occur “in a fundamentally silly way,” White Stallion, 748 F.3d at 1261

(Kavanaugh, J., dissenting), and it certainly did not do so here.

Most importantly, the statutory text cannot be reconciled with EPA’s reading.

Where Congress wanted EPA to reduce emissions as much as “achievable,” it said so.

In regulating power plants under the neighboring § 7411, for instance, Congress

ordered EPA to “revise” an emission standard for new plants if the existing limit “no

longer reflects the greatest degree of emission limitation achievable.” § 7411(g)(B)(4).

In contrast, § 7412(d)(6) asks whether revisions are “necessary,” not whether they are

“achievable.” As explained, this “comprehensive criterion,” Michigan, 576 U.S. at 756,

compels an inquiry into whether the revisions advance the statutory objective of the

regulations at issue—which, here, is protecting public health. Supra at 16.

True, § 7412(d)(6) does expressly tell EPA to take technological developments

“into account” as part of its necessity evaluation. But there is a difference between

accounting for developments in evaluating whether revisions are “necessary” in light

of the statute’s public health goals (what the Act demands), and imposing tighter

standards whenever developments make them possible (what EPA demands). Had

Congress wanted the latter, it would not have limited EPA to “necessary” revisions—

those for which there is a “need.” Michigan, 576 U.S. at 757. To paraphrase, “[i]t is

unreasonable to infer that, by expressly making [technological change] relevant,” this

provision “implicitly makes [public health benefits] irrelevant.” Id. at 755.

EPA’s position is also out of step with the structure of § 7412. EPA construes

§ 7412(d)(6) to point it back to § 7412(d)(2), which demands “the maximum degree of

reduction … achievable.” Rule 38530-31. That is mistaken. Section 7412(d)(2) only

applies to standards “promulgated under this subsection,” § 7412(d)(2) (emphasis

added), meaning subsection (d). Power plants are regulated under subsection (n), and

only as “appropriate and necessary” after a study of health hazards. § 7412(n)(1)(A).

EPA does have to revisit its power plant standards every eight years, since they are

still “promulgated under this section.” § 7412(d)(6) (emphasis added). But, in doing so,

the agency must look back to § 7412(n)(1)(A)’s special “appropriate and necessary”

framework, not § 7412(d)(2)’s general “maximum degree of reduction” test. They are

distinct sources of authority. See § 7607(d)(1)(C) (referring separately to actions

“under section 7412(d)” and ones “under section 7412(m) or (n)”). At minimum, EPA

cannot lose sight of § 7412(n)(1)(A) when asking if revisions are “necessary.”

EPA’s contrary theory of how these provisions interlock makes a mess of things.

On its view, EPA would take rules Congress permitted only to address public health,

and then revise them under a different standard, to advance other goals, and even if

the original goal is already met. That makes no sense. For standards issued under

§ 7412(d)(2) in the first place, perhaps that provision sets the benchmark for whether

revisions are “necessary.” But Congress elected to “treat[] power plants differently

from other stationary sources.” Michigan, 576 U.S. at 756. The special nuance found

in § 7412(n)(1)(A) does not go out the window just because eight years have elapsed.

Finally, EPA argues that § 7412(d)(6) authorizes it to revise standards even if

they provide an “ample margin of safety” to protect public health under § 7412(f)(2).

C.A. Stay Opp. 13-15. True. But that does not mean § 7412(d)(6) authorizes EPA to

regulate in the absence of any public health benefits. EPA presumptively finds an

“ample margin of safety” if nobody faces an excess lifetime cancer risk “greater than

100-in-one million.” NRDC, 529 F.3d at 1080. So if current standards presented a

cancer risk of 90-in-one million, § 7412(f)(2) would not compel tightening them; but if

technological developments allowed the risk to be reduced by 90% (to 9-in-one million)

in a cost-effective way, § 7412(d)(6) would empower EPA to impose that revision. Here,

though, the problem is there is no meaningful risk to reduce—indeed, the cancer risk

is already below the level at which Congress allows EPA to stop regulating a source

altogether, see § 7412(c)(9)(B), and the Rule will not improve it. Nothing in the statute

prescribes indefinite regulation beyond the point of zero marginal returns.

II.

THE EQUITIES FAVOR A STAY.

The equitable analysis here may be even easier than the merits. Per EPA’s own

account, a delay of the Rule’s effective date would do nothing to harm public health

in any measurable way. Because a benefitless regulation and costless stay are two

sides of the same coin, half of the equitable analysis here is a cinch.

The remainder is not much harder. The Rule will impose $860 million in costs

under EPA’s own estimates, Rule 38555, which is why “[n]o one here disputes that

some coal-fired units will have to spend money to comply,” C.A. Stay Opp. 44. And

those costs threaten to put plants out of business, especially as the Rule’s stringent

standards are just one in a “suite” of regulations EPA unleashed on the coal industry

earlier this year to accomplish “the transition to a clean energy economy.” Suite; see

App. 142a-43a, 150a-51a. This regulatory carpet bombing—the latest iteration of the

Clean Power Plan included—makes it near certain that some coal plants will be

forced to shutter. See App. 142a-43a, 150a-51a; NACCO Stay Appl. No. 24A98.

As the coal plants go, so will NACCO’s coal mines, leaving the company with

hundreds of millions of dollars of losses. App. 143a. For example, closure of the Red

Hills plant in Mississippi—a facility “particularly vulnerable” to the Rule—would

cause NACCO to lose over $50 million in stranded investments. App. 150a; see Rule

38540 n.71 (“The lignite output from the adjacent mine is 100 percent dedicated to

the [Red Hills] power plant.”). The Rule thus creates a “risk of irreparable harm,” as

there is “no guarantee of eventual recovery,” to say the least, if it is later vacated. Ala.

Ass’n of Realtors v. HHS, 594 U.S. 758, 765 (2021); see Ohio, 144 S. Ct. at 2053.

Nor can there really be any dispute that these harms will occur during this

litigation. Coal plants must slash their emissions by 67% or more before July 8, 2027,

a date less than three years off. Rule 38519. If Michigan is any guide, the normal

course of litigation will yield a final decision shortly before then at the earliest. The

2012 MATS rule was issued on February 16, 2012, and challenged the same day;

thanks to a two-year-plus process in the D.C. Circuit, this Court’s decision in

Michigan came on June 29, 2015. See supra at 7-9. Here, the Rule was challenged on

May 8, 2024—the day after publication—and the D.C. Circuit has yet to even set a

briefing schedule. See 24-1119 Dkt. (D.C. Cir.). That means a June 2027 decision from

this Court under the best of circumstances.

By that point, even a victory will not have been worth the wait. As EPA admits,

coal plants cannot sit back until the month before the Rule’s compliance date. See C.A.

Stay Opp. 45 (claiming that compliance should “typically take[] two years or less”).

And NACCO cannot structure its business decisions on the assumption this Court

will grant a last-minute stay of execution. See App. 146a-47a, 149a; see also Columbia

Broad. Sys. v. United States, 316 U.S. 407, 423 (1942) (finding “threat of irreparable

injury” based on allegation that business’s affiliates are “threatening to cancel their

contracts in order to conform to the regulations”). In fact, the new standards are

“already immediately impacting the operation” of NACCO’s Falkirk Mine in North

Dakota, just by way of example, as “the uncertainty created by” the Rule has made

“it difficult to attract and retain employees who know they may not have a job in a

few years.” App. 146a-47a.

EPA knows all this, just as it knows what happened in Michigan. By the time

this Court held the original MATS rule unlawful in 2015, plants representing 19% of

the Nation’s total coal capacity had retired, putting over 40,000 coal miners out of a

job. Supra at 9. Indeed, more coal capacity was retired in 2012 than in the previous

ten years combined. NMA Comment 3. The plants that hung around had no choice

but to accept the agency’s diktat, leading EPA to crow the day after this Court’s

decision that “the majority of power plants are already in compliance or well on their

way to compliance” with “the rule, which remains in effect today.” 2015 Post. And

remain in effect it did. On remand, EPA urged the D.C. Circuit to leave the 2012 rule

in place because “most sources have already complied … or have taken steps towards

complying, and therefore have already made the necessary capital investments to

install controls.” EPA’s Resp. at 14-15, White Stallion, No. 12-1100 (D.C. Cir. Oct. 21,

2015). The D.C. Circuit evidently found this persuasive, for it declined to vacate the

rule this Court had just held unlawful. See supra at 8.

EPA is undoubtedly counting on the same outcome this time around—closure

or compliance, no matter what this Court says. That makes the stay proceedings here

pretty much “the whole ball game.” Winter v. NRDC, 555 U.S. 7, 33 (2008). Given the

lopsided equities (and merits), it should not be a hard one to umpire. See Ohio, 144

S. Ct. at 2053 (explaining that when “each side has strong arguments about the

harms they face and equities involved, our resolution of … stay requests ultimately

turns on the merits”).

If this Court declines to issue a stay, however, it should treat this application

as a petition for a writ of certiorari before judgment under 28 U.S.C. § 2101(e), grant

the petition, and set the case for briefing and argument during the upcoming Term.

This Court has repeatedly taken this approach to cases on its emergency docket, as

full briefing and argument “help [it] better decide important emergency applications.”

Labrador v. Poe, 144 S. Ct. 921, 933 (2024) (Kavanaugh, J., concurring in grant of

stay); see Biden v. Nebraska, 143 S. Ct. 477 (2022); United States v. Texas, 143 S. Ct.

51 (2022). A final decision from this Court by June 2025 would at least allow for the

“two years” EPA admits are necessary for “compliance work” if the Rule survives, C.A.

Stay Opp. 45—and for meaningful practical relief if the Rule is invalidated.

CONCLUSION

This Court should grant an immediate stay of the Rule, or treat this application

as a petition for a writ of a certiorari before judgment and grant review.

August 14, 2024

Charles T. Wehland

JONES DAY

110 N. Wacker Dr., Ste 4800

Chicago, IL 60601

(312) 269-4388

ctwehland@jonesday.com

Jeffery D. Ubersax

KUSHNER & HAMED CO., LPA

1375 E. Ninth St., Ste 1930

Cleveland, OH 44114

(216) 696-6700

jdubersax@kushnerhamed.com

Respectfully submitted,

/s/ Yaakov M. Roth

Yaakov M. Roth

Counsel of Record

Brinton Lucas

Madeline W. Clark

S. Matthew Krsacok

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

(202) 879-7658

yroth@jonesday.com

blucas@jonesday.com

mclark@jonesday.com

mkrsacok@jonesday.com

Counsel for Applicant NACCO Natural Resources Corporation

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.