Emergency Application — North Dakota, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefAug 16, 2024

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No. ________

In the Supreme Court of the United States

STATE OF NORTH DAKOTA, STATE OF WEST VIRGINIA, et al.,

Applicants,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE D.C. CIRCUIT

STATES’ EMERGENCY APPLICATION FOR AN IMMEDIATE STAY OF

ADMINISTRATIVE ACTION PENDING REVIEW IN THE D.C. CIRCUIT

PATRICK MORRISEY

Attorney General

DREW H. WRIGLEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

PHILIP AXT

Solicitor General

*Counsel of Record

Office of the Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

Phone: 304.558.2021

michael.r.williams@wvago.gov

Counsel for State of West Virginia

NESSA HOREWITCH COPPINGER

DAVID M. FRIEDLAND

Special Assistant Attorneys General

Office of the Attorney General

600 E Boulevard Ave., Dept. 125

Bismarck, ND 58505

Phone: 701.328.2210

pjaxt@nd.gov

Counsel for State of North Dakota

[additional counsel listed after signature page]

PARTIES TO THIS PROCEEDING

Applicants in this Court and Petitioners in the D.C. Circuit Court of Appeals

are the 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, and State of Wyoming.

Respondent in this Court and Respondent in the D.C. Circuit Court of Appeals

is the United States Environmental Protection Agency.

Intervenor for Petitioner in the D.C. Circuit Court of Appeals is San Miguel

Electric Cooperative, Inc.

Intervenors for Respondent in the D.C. Circuit Court of Appeals are (1) 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, Clean Air

Council, Clean Wisconsin, Downwinders at Risk, Environmental Defense Fund,

Environmental Integrity Project, Montana Environmental Information Center,

Natural Resources Council of Maine, Natural Resources Defense Council, the Ohio

Environmental Council, Physicians for Social Responsibility, and Sierra Club; (2) the

State of Massachusetts, State of Minnesota, State of Connecticut, State of Illinois,

State of Maine, State of Maryland, State of Michigan, State of New Jersey, State of

New York, State of Oregon, State of Pennsylvania, State of Rhode Island, State of

Vermont, State of Wisconsin, District of Columbia, City of Baltimore, City of Chicago,

City of New York.

RELATED PROCEEDINGS

This application arises from an August 8 Order from the D.C. Circuit Court of

Appeals denying six motions to stay filed in eight consolidated cases:



No. 24-1119: State of North Dakota, et al v. EPA (lead case)



No. 24-1154: NACCO Natural Resources Corporation v. EPA, et al



No. 24-1179: National Rural Electric Cooperative Association, Lignite Energy

Council, National Mining Association, Minnkota Power Cooperative, Inc., East

Kentucky Power Cooperative, Inc., Associated Electric Cooperative, Inc., Basin

Electric Power Cooperative, Rainbow Energy Center, LLC v. EPA, et al



No. 24-1184: Oak Grove Management Company, LLC, et al v. EPA, et al



No. 24-1190: Talen Montana, LLC v. EPA, et al



No. 24-1194: Westmoreland Mining Holdings LLC, Westmoreland Mining, and

Westmoreland Rosebud Mining LLC v. EPA, et al



No. 24-1201: America's Power, and Electric Generators MATS Coalition v. EPA



No. 24-1217: NorthWestern Corporation, d/b/a NorthWestern Energy v. EPA



No. 24-1223: Midwest Ozone Group v. EPA, et al

TABLE OF CONTENTS

PARTIES TO THIS PROCEEDING .............................................................................. i

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

TABLE OF APPENDICES ........................................................................................... ix

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

DECISION BELOW ...................................................................................................... 6

JURISDICTION............................................................................................................. 6

BACKGROUND ............................................................................................................. 6

REASONS TO GRANT THE APPLICATION ............................................................ 14

THE STATES WILL SUFFER IRREPARABLE HARM

WITHOUT A STAY ........................................................................................... 15

The Rule Jeopardizes the Stability of the Nation’s Power Grids. ........ 15

The Rule Will Impose Irreparable Economic Injury ............................. 18

II.

THE BALANCE OF HARMS AND THE PUBLIC INTEREST FAVOR A

STAY .................................................................................................................. 20

III.

APPLICANTS WILL LIKELY PREVAIL ON THE MERITS ......................... 21

EPA Has Exceeded the Authority Delegated by Congress ................... 22

Revising the MATS Standard Is Not “Necessary” ..................... 22

There Has Not Been a “Development” to Justify Revising the

MATS Rule ................................................................................... 24

The Final Rule is Arbitrary and Capricious ......................................... 30

EPA’s Cost-Benefit Analysis is Indefensible .............................. 31

EPA Failed to Adequately Consider Power Grid Impacts ......... 34

EPA’s Basis for Promulgating the Rule is Pretextual ............... 37

CONCLUSION............................................................................................................. 40

iii

TABLE OF AUTHORITIES

Cases

Armour & Co. v. Wantock,

323 U.S. 126, 129-30 (1944) ..................................................................................... 22

Ass’n of Battery Recyclers v. EPA,

716 F.3d 667 (D.C. Cir. 2013).................................................................................. 31

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971)................................................................................................... 39

Del. Dep’t of Nat. Res. & Envtl. Control v. EPA,

785 F.3d 1, 18 (D.C. Cir. 2015)................................................................................. 35

Dep’t of Commerce v. New York,

588 US 752 (2019).................................................................................... 5, 37, 39, 40

GPA Midstream Ass’n v. DOT,

67 F.4th 1188, 1200 (D.C. Cir. 2023) ....................................................................... 33

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982).................................................................................................. 27

La. Envtl. Action Network v. EPA,

955 F.3d 1088, 1097-98 (D.C. Cir. 2020).................................................................. 22

Loper Bright Enter. v. Raimondo,

144 S. Ct. 2244 (2024) ................................................................................. 14, 21, 28

Mexican Gulf Fishing Co. v. U.S. Dep’t of Commerce,

60 F.4th 956 (5th Cir. 2023) .................................................................................... 34

Michigan v. EPA,

576 U.S. 743 (2015)................................................................ 2, 5, 7, 8, 24, 31, 33, 34

Motor Vehicle Mfrs. Ass’n v. State Farm,

463 U.S. 29 (1983).............................................................................................. 31, 36

National Association for Surface Finishing v. EPA,

795 F.3d 1 (D.C. Cir. 2015)................................................................................ 28, 29

Natural Res. Def. Council v. EPA,

529 F.3d 1084 (D.C. Cir. 2008).......................................................................... 10, 27

Ohio v. EPA,

144 S. Ct. 2040 (2024) ............................................................................... 2, 5, 14, 34

Philip Morris USA Inc. v. Scott,

561 U.S. 1301, 1305 (2010)......................................................................................... 2

Portland Cement Ass’n v. EPA,

665 F.3d 177 (D.C. Cir. 2011).................................................................................. 37

Sierra Club v. EPA,

895 F.3d 1 (D.C. Cir. 2018)........................................................................................ 6

Sierra Club v. Ga. Power Co.,

180 F.3d 1309 (11th Cir. 1999) ............................................................................... 20

Small Ref. Lead Phase-Down Task Force v. EPA,

705 F.2d 506 (D.C. Cir. 1983).................................................................................. 36

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ................................................................. 16, 18, 20, 35

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994)................................................................................................... 19

Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc.,

805 F.2d 351 (10th Cir. 1986) .................................................................................. 21

Webster v. Fall,

266 U.S. 507 (1925).................................................................................................. 28

West Virginia v. EPA,

597 U.S. 697 (2022).................................................................................. 5, 21, 38, 39

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) .................................................................................... 20

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ..................................................................................................... 14

Wis. Gas Co. v. FERC,

758 F.2d 669, 674 (D.C. Cir. 1985) ........................................................................... 36

Wyoming v. Dep’t of Interior,

493 F. Supp. 3d 1046 (D. Wyo. 2020) ...................................................................... 24

Statutes and Rules

All Writs Act, 28 U.S.C. § 1651 ..................................................................................... 6

Administrative Procedure Act, 5 U.S.C. § 705 ............................................................ 6

28 U.S.C. § 1254(1) ........................................................................................................ 6

28 U.S.C. § 1201(f) ......................................................................................................... 6

Clean Air Act § 112

42 U.S.C. § 7412 ....................................................................................................... 6

42 U.S.C. § 7412(b)(1)............................................................................................... 6

42 U.S.C. § 7412(b)(3)(B) ........................................................................................ 22

42 U.S.C. § 7412(b)(3)(C) ........................................................................................ 22

42 U.S.C. § 7412(c)(9)(B)(i)..................................................................................... 10

42 U.S.C. § 7412(d)(1)............................................................................................... 6

42 U.S.C. § 7412(d)(3)............................................................................................... 6

42 U.S.C. § 7412(d)(6)..................................................................................... 3, 7, 22

42 U.S.C. § 7412(f) .................................................................................................... 7

42 U.S.C. § 7412(n)(1)(A) ....................................................................................... 23

National Emission Standards for Coke Oven Batteries,

69 Fed. Reg. 48338 (Aug. 9, 2004)...................................................................... 10, 23

National Emission Standards for Coke Oven Batteries,

70 Fed. Reg. 19992 (Apr. 15, 2005) .......................................................................... 28

National Emission Standards for Hazardous Air Pollutants for Organic Hazardous

Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry

71 Fed. Reg. 34422 (June 14, 2006) ......................................................................... 23

National Emission Standards for Organic Hazardous Air Pollutants From the

Synthetic Organic Chemical Manufacturing Industry,

71 Fed. Reg. 76603 (Dec. 21, 2006) .......................................................................... 10

National Emission Standards for Hazardous Air Pollutants From Coal- and OilFired Electric Utility Steam Generating Units and Standards of Performance

for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and

Small Industrial-Commercial-Institutional Steam Generating Units,

76 Fed. Reg. 24976 (May 3, 2011) ............................................................................ 30

National Emission Standards for Hazardous Air Pollutants From the Pulp and

Paper Industry

76 Fed. Reg 81328 (Dec. 27, 2011) ........................................................................... 25

National Emission Standards for Hazardous Air Pollutants From Coal- and

Oil-Fired Electric Utility Steam Generating Units and Standards of

Performance for Fossil-Fuel-Fired Electric Utility, Industrial-CommercialInstitutional, and Small Industrial-Commercial-Institutional Steam

Generating Units,

77 Fed. Reg. 9304 (Feb. 16, 2012) ............................................................ 7, 13, 29, 33

National Emission Standards for Hazardous Air Pollutants for the Portland Cement

Manufacturing Industry and Standards of Performance for Portland Cement

Plants,

78 Fed. Reg. 10006 (Feb. 12, 2013) .......................................................................... 33

Petroleum Refinery Sector Risk and Technology Review and New Source

Performance Standards,

80 Fed. Reg. 75178 (Dec. 1, 2015) ............................................................................ 32

National Emission Standards for Hazardous Air Pollutants: Coal- and

Oil-Fired Electric Utility Steam Generating Units—Reconsideration of

Supplemental Finding and Residual Risk and Technology Review,

85 Fed. Reg. 31286 (May 22, 2020) ........................................................................ 8, 9

National Emission Standards for Hazardous Air Pollutants: Integrated Iron and

Steel Manufacturing Facilities Residual Risk and Technology Review,

85 Fed. Reg. 42074 (July 13, 2020) .......................................................................... 32

Executive Order No. 13990, Protecting Public Health and the Environment

and Restoring Science to Tackle the Climate Crisis,

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

New Source Performance Standards Review for Lead Acid Battery Manufacturing

Plants and National Emission Standards for Hazardous Air Pollutants for Lead

Acid Battery Manufacturing Area Sources Technology Review,

88 Fed. Reg. 11556 (Feb. 23, 2023) .......................................................................... 32

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

Electric Utility Steam Generating Units Review of the Residual Risk and

Technology Review,

88 Fed. Reg. 24854 (April 24, 2023) ......................................................... 9, 11, 12, 29

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) .............. 6, 11-13, 17, 18, 20 ,23, 25, 26, 29-33, 37

40 C.F.R. Part 63 Subparts F through HHHHHHH .................................................... 7

Other Authorities

2018 Technology Review Memorandum ..................................................................... 25

2023 Technology Review for the Coal- and Oil-Fired EGU Source Category (“2023

Tech Review”) ........................................................................................................... 11

Am. Heritage Dictionary (5th ed. 2011)...................................................................... 25

Black’s Law Dictionary (11th ed. 2019) ...................................................................... 22

Merriam Webster’s Collegiate Dictionary (10th ed. 1994)......................................... 22

Chemnick et al., What the EPA’s New Plans for Regulating Power Plans Mean for

Carbon, Sci. Am. (Mar. 11, 2022) ............................................................................ 39

EPA, Biden-Harris Administration Finalizes Suite of Standards to Reduce

Pollution from Fossil Fuel-Fired Power Plants (Apr. 25, 2024)........................ 15, 37

FERC-NERC-Regional Entity Staff Report: The February 2021 Cold Weather

Outages in Texas and the South Central United States (Nov. 16, 2021) ......... 15-16

vii

Milman, New US climate rules for pollution cuts ‘probably terminal’ for coal-fired

plants, Guardian (May 2, 2024) ............................................................................... 40

Joe Rago, A Supreme Carbon Rebuke,

Wall St. J. (Feb. 10, 2016) .......................................................................................... 3

PBS, EPA Administrator Michael Regan discusses Supreme Court ruling on

climate change, YouTube (June 30, 2022) .......................................................... 38-39

Pratson et. al., Fuel Prices, Emission Standards, and Generation Costs for Coal v

Natural Gas Power Plants,

Am. Chem. Soc’y, Env’l Sci. & Tech., 4929 (Mar. 2013) .......................................... 13

Ronald Cass, Staying Agency Rules: Constitutional Structure and

Rule of Law in the Administrative State,

69 Admin. L. Rev. 225, 254-57 (2017) ........................................................................ 3

Timothy Cama & Lydia Wheeler, Supreme Court Overturns Landmark EPA Air

Pollution Rule, The Hill (June 29, 2015) ................................................................... 8

U.S. Energy Info. Admin., Planned coal-fired power plant retirements continue to

increase (Mar. 20, 2014) ........................................................................................... 13

White House, Press Gaggle by Principal Deputy Press Secretary Karine JeanPierre & Env’t Prot. Agency Adm’r Michael Regan (Feb. 17, 2022) ....................... 38

Minnkota Power Coop. Inc. Comment,

EPA-HQ-OAR-2018-0794-5978 ................................................................................ 34

MISO Comments

Docket ID Nos. EPA-HQ-OLEM-2021-0283, EPA-HQ-OLEM-2021-0282,

EPA-HQ-OLEM-2021-0280 ...................................................................................... 34

Nat’l Min. Ass’n Comment,

EPA-HQ-OAR-2009-0234-20531 .............................................................................. 14

National Rural Electric Cooperative Association (NRECA) Comment,

EPA-HQ-OAR-2018-0794-5956 ................................................................................ 34

Rainbow Energy Center Comment,

EPA-HQ-OAR-2018-0794-5990 ................................................................................ 34

Power Generators Air Coalition Comment,

EPA-HQ-OAR-2018-0794-5994 ................................................................................ 34

viii

TABLE OF APPENDICES

Court of Appeals Order Denying the Motions to Stay

(D.C. Cir. August 8, 2024) ........................................................................................ 1a

42 U.S.C. § 7412 ........................................................................................................... 3a

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) ........................................ 59a

Chang Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 145a

Fedorchak Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 160a

Friez Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 174a

Huston Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 269a

Lane Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 275a

McCollam Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 295a

McLennan Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 312a

Nowakowski Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 515a

Purvis Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 526a

Rickerson Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 546a

Tschider Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 552a

Vigesaa Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 592a

Webb Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 601a

Bohrer Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 605a

Excerpted MISO Comments,

Docket ID Nos. EPA-HQ-OLEM-2021-0280, EPA-HQ-OLEM-2021-0282,

EPA-HQ-OLEM-2021-0283 .................................................................................. 612a

Excerpted Minnkota Power Co-op. Inc. Comment,

EPA-HQ-OAR-2018-0794-5978 ............................................................................ 616a

Excerpted Nat’l Min. Ass’n Comment,

EPA-HQ-OAR-2009-0234-20531 .......................................................................... 619a

Excerpted National Rural Electric Cooperative Association (NRECA) Comment &

attachment Cichanowicz, et al., Technical Emissions Standards for Hazardous Air

Pollution: Coal and Oil-fired Electric Utility Steam Generating Units Review of

Residual Risk and Technology Review

EPA-HQ-OAR-2018-0794-5956 ............................................................................ 624a

Excerpted Rainbow Energy Center Comment,

EPA-HQ-OAR-2018-0794-5990 ............................................................................ 634a

Excerpted Power Generators Air Coalition Comment,

EPA-HQ-OAR-2018-0794-5994 ............................................................................ 637a

Excerpted North American Coal Corporation (NACCO) Comment,

EPA-HQ-OAR-2018-0794-6000 ............................................................................ 640a

Excerpted 2018 Technology Review for the Coal- and Oil-Fired EGU Source

Category ................................................................................................................ 645a

Excerpted Residual Risk Assessment for the Coal- and Oil-Fired EGU Source

Category in Support of the 2020 Risk and Technology Review Final Rule, EPAHQ-OAR-2018-0794-4553 (Sept. 2019) ................................................................ 648a

Excerpted 2023 Technology Review for the Coal- and Oil-Fired EGU Source

Category ................................................................................................................ 662a

Excerpted EPA Summary of Public Comments and Responses on Proposed Rule,

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

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

Technology Review, published 88 Fed. Reg. 24854, Apr. 24, 2024 (“EPA Response

To Comments”) ..................................................................................................... 664a

Excerpted FERC-NERC-Regional Entity Staff Report: The February 2021 Cold

Weather Outages in Texas and the South Central United States

(Nov. 16, 2021) ...................................................................................................... 678a

Excerpted Regulatory Impact Analysis for the Final National Emission Standards

for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam

Generating Units Review of the Residual Risk and Technology Review, EPA452/R-24-005 (April 2024) .................................................................................... 683a

EPA’s Combined Opposition To Motions To Stay Final Rule (ECF No. 2065849)

(D.C. Cir. No. 24-1119 July 22, 2024) (“EPA Br.”) .............................................. 725a

Excerpted EPA Resp. to Petitioners’ Motions To Govern Future Proceedings,

White Stallion Energy Ctr., LLC. v. EPA, No. 12-1100, Entry 1579186

(D.C. Cir. Oct. 21, 2015) ...................................................................................... 791a

D.C. Cir. Order, White Stallion Energy Ctr., LLC. v. EPA, No. 12-1100, Entry

1588459 (D.C. Cir. Dec. 15, 2015) ........................................................................ 794a

Excerpted Transcript of Oral Argument, Michigan v. EPA,

576 U.S. 743 (Mar. 25, 2015) (No.14-46) ............................................................. 796a

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

CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT:

INTRODUCTION

Applicants, including nearly half the States in the country, seek to stay an EPA

Rule which reduces the Mercury and Air Toxics Standards (“MATS”) for coal-fired

power plants by 66-70%. With one sentence, and without any indication of why it

determined a stay was unwarranted, the D.C. Circuit denied six motions and

disregarded thousands of pages of briefing and declarations attesting that the Rule

will impose tremendous costs and risk destabilizing the nation’s power grids without

creating any relevant or quantifiable benefit to public health.

Under Section 112 of the Clean Air Act, EPA has rulemaking authority to set

emission levels for specifically listed hazardous air pollutants (“HAPs”).

That

authority is for protecting public health and the environment from those listed HAP

emissions. Section 112 does not bestow EPA with a general rulemaking authority for

combating climate change or achieving other environmental policy goals.

The Rule at issue here loses sight of that purpose. EPA cannot quantify any

relevant or meaningful public health or environmental benefit from the mandated

reduction in HAP emissions. None. EPA acknowledges that the standards already

in place have achieved HAP emission levels that are well below any threshold that

would impact public health. Indeed, health risks from HAP emissions for the worst

performing coal-fired plant in the country are already orders of magnitude below the

Clean Air Act’s aspirational standard, where, by statute, EPA could discontinue

regulating the emission source entirely.

Conversely, implementation costs for the Rule will be substantial, there is a

significant likelihood power plants will be forced to retire, and, at minimum, prices

for electricity will increase. Without a stay, the Rule will require investment and

shutdown decisions to be made immediately, and those decisions will not be reversible

if Applicants later prevail on the merits. Not coincidentally, grid regulators around

the country are warning that the long-term reliability of our nation’s alreadyprecarious power grids will be threatened.

“When States … seek to stay the enforcement of a federal regulation … often

the ‘harms and equities [will be] very weighty on both sides.’” Ohio v. EPA, 144 S.

Ct. 2040, 2052 (citation omitted). But that’s not the case here. The disparity between

injuries likely to result from not granting a stay and the lack of injuries from granting

a stay could not be more stark. Cf. Philip Morris USA Inc. v. Scott, 561 U.S. 1301,

1305 (2010) (Scalia, J.) (granting stay where “[r]efusing a stay may visit an

irreversible harm … but granting it will apparently do no permanent injury”).

EPA knows that to impose this Rule on the nation it doesn’t need to prevail on

the merits, all it needs to do is prevent a stay of the Rule during the pendency of the

challenge—the multi-year timelines for powerplant investment decisions and time

needed to get a Clean Air Act merits decisions will do the rest. EPA knows this

because they’ve already ran that play before, using the MATS Rule.

The last time the MATS Rule was litigated, this Court eventually held that

EPA acted “unreasonably when it deemed cost irrelevant to the decision to regulate

power plants.” Michigan v. EPA, 576 U.S. 743, 760 (2015). But that victory proved

hollow, because without a stay during the years it took for a merits decision, power

plants were forced to make and implement compliance and retirement decisions,

resulting in billions expended and a multitude of plant closures in response to an

unlawful regulation. Rather than showing contrition for upending an entire industry

with an unlawful regulation, EPA celebrated how many power plants had been forced

into compliance by the time the rule was declared unlawful. Joe Rago, A Supreme

Carbon Rebuke, Wall St. J. (Feb. 10, 2016), https://tinyurl.com/zwstzuw3. The last

time the MATS Rule was litigated became a textbook example for when agency rules

should be stayed. E.g., Ronald Cass, Staying Agency Rules: Constitutional Structure

and Rule of Law in the Administrative State, 69 Admin. L. Rev. 225, 254-57 (2017).

And beyond the sharp imbalance of imminent and irreparable harms,

Applicants also have a high likelihood of prevailing on the merits.

Under Section 112(d)(6) of the Clean Air Act, EPA may only revise HAP

emission standards “as necessary (taking into account developments in practices,

processes, and control technologies).” 42 U.S.C. § 7412(d)(6). The operative statutory

phrase is “revise as necessary,” yet EPA never determined that this Rule was

“necessary.” Nor could it. A Section 112 rule that imposes tremendous costs without

achieving any relevant health benefit could hardly be “necessary.” EPA’s failure to

establish that the Rule is “necessary” renders it unlawful out of the gate.

Rather than trying to establish any necessity, EPA claims that power plants

have been able to comply with the current standard at lower cost than anticipated,

and interprets that to be a “development” under Section 112(d)(6). But even setting

aside EPA’s failure to address Section 112(d)(6)’s use of the term “necessary,” EPA’s

interpretation of the term “development” does not hold water. The primary emission

control technologies have not changed in the last decade.

And the alleged cost

efficiencies EPA points to for using long-existent control technologies cannot justify

the Rule’s dramatic ratcheting down of the standards.

The Rule is also arbitrary and capricious multiple times over. For one, the

Rule’s cost-benefit analysis is indefensible. Even taking EPA’s calculations at face

value, the estimated cost per ton of HAP removed exponentially exceeds cost-benefit

ratios that EPA itself has rejected as unreasonable for other Section 112 rulemakings.

Yet in exchange for those astronomical costs, EPA cannot point to any relevant,

quantifiable public health benefit to be gained. EPA has never before used its Section

112(d)(6) rulemaking authority to impose costs of such a magnitude without any

corresponding, quantifiable benefit to public health to show for it.

For another, EPA failed to adequately consider the Rule’s significant and

foreseeable impacts on our nation’s already-strained power grids. EPA promulgated

this Rule as one part of a “suite” of rules targeting coal-fired power plants with

retirement-inducing costs. EPA’s perfunctory conclusion that the tremendous costs

of this Rule (and related rules) will have no effect on the power sector does not reflect

reasoned analysis entitled to any degree of deference. EPA is not an expert on the

power grid, and, despite the Rule’s foreseeable impact on the power grid, EPA did not

seek input from the Federal Energy Regulatory Commission (FERC), the North

American Electric Reliability Corporation (NERC), or any other similar entity that

could have apprised it of this Rule’s likely impact on long term grid reliability.

And finally, there is considerable evidence that EPA’s stated reason for

engaging in this rulemaking is pretextual. Cf. Dep’t of Commerce v. New York, 588

U.S. 752, 784-85 (2019) (“[T]he evidence tells a story that does not match the

explanation the Secretary gave for his decision. … Accepting contrived reasons would

defeat the purpose of the enterprise.”).

Contrary to EPA’s stated purpose of

protecting public health from HAP emissions (which the Rule doesn’t do), there is

evidence that EPA is using its rulemaking authority under Section 112(d)(6) as part

of an effort to force a nationwide transition away from coal for putative climate

change reasons—pursuing a national policy choice this Court has expressly held the

agency lacks authority to make. Contra West Virginia v. EPA, 597 U.S. 697, 735

(2022) (holding it “not plausible” that the Clean Air Act empowers EPA to “force a

nationwide transition away from the use of coal to generate electricity”).

“Stay applications are nothing new. They seek a form of interim relief perhaps

‘as old as the judicial system of the nation.’” Ohio, 144 S. Ct. at 2052 (citation

omitted). The D.C. Circuit’s one-sentence denial of the stay motions filed below

demonstrates a failure to learn from the Michigan v. EPA saga, and it did not identify

(for the parties, or for this Court) which prong of the stay analysis its decision rested

upon. To avoid imminent and irreparable harms from a rule likely to be set aside,

this Court should stay the Rule’s implementation pending resolution of the merits.

DECISION BELOW

The D.C. Circuit’s order denying the motions for a stay pending review of the

Rule is unpublished. It is reproduced at App. 1a-2a. The relevant Rule, National

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

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

is published at 89 Fed. Reg. 38508 (May 7, 2024) and reproduced at App. 59a-144a.

JURISDICTION

This Court has jurisdiction over this Application under 28 U.S.C. §§ 1254(1)

and 2101(f). It has the authority to grant Applicants’ requested relief under both the

Administrative Procedure Act, 5 U.S.C. § 705, and the All Writs Act, 28 U.S.C. § 1651.

BACKGROUND

Section 112 of the Clean Air Act (codified at 42 U.S.C. § 7412) provides EPA

with statutory authority to set emission levels for protecting public health and the

environment from certain HAPs specifically enumerated in Section 112(b)(1). 42

U.S.C. § 7412(b)(1); see also Sierra Club v. EPA, 895 F.3d 1, 7 (D.C. Cir. 2018) (“There

are 189 hazardous air pollutants subject to regulation”). Carbon dioxide and other

greenhouse gases are not HAPs subject to EPA’s Section 112 authority, and

combating climate change is not the purpose of Section 112.

When setting emission levels for the HAPs regulated under Section 112, the

statute first requires EPA to set standards based on what is achievable with current

technology. See 42 U.S.C. § 7412(d)(1), (3). Then, the Clean Air Act requires EPA to

periodically evaluate whether to revise them. For public health, the Clean Air Act

requires that eight years after setting a standard, EPA must evaluate if any “residual

risks” remain to public health from those HAP emissions (the “Residual Risk

Review”). 42 U.S.C. § 7412(f). And for technological advances, the Clean Air Act

requires that every eight years after setting a standard, EPA must review and revise

“as necessary,” by “taking into account developments in the practices, processes and

control technologies” (the “Technology Review”). 42 U.S.C. § 7412(d)(6).

EPA has promulgated over 100 HAP standards for a wide variety of emission

sources under Section 112. See 40 C.F.R. 63 Subparts F through HHHHHHH. The

Final Rule challenged here pertains to certain HAP emissions from coal- and oil-fired

power plants (referred to as electric utility steam generating units or “EGUs”).

In 2012, EPA issued the original MATS rule for mercury and other specified

HAPs from coal- and oil-fired EGUs. See 77 Fed. Reg. 9304 (Feb. 16, 2012). The

original MATS rule identified different emission standards for mercury from power

plants that use lignite coal compared to other types of coal. That distinction was

based on science: lignite is more variable (in terms of heat, moisture, and mercury

content) than other types of coal, and available technologies cannot consistently

achieve the same control levels. See 77 Fed. Reg. at 9393. For all other covered HAPs

(i.e., the non-mercury metal HAPs), the original MATS Rule allowed for measuring

filterable particulate matter (fPM) as a surrogate for total non-mercury metal HAPs.

Several parties challenged the original MATS Rule, arguing that EPA failed to

consider the substantial costs the Rule would impose on the already heavily regulated

power sector. See Michigan, 576 U.S. at 747-50. This Court agreed and found the

original MATS Rule unlawful because EPA unreasonably “deemed cost irrelevant to

the decision to regulate power plants.” Id. at 760. But without a stay while the merits

were litigated, EGUs were forced by the original MATS Rule to incur compliance costs

or make retirement decisions in the interim, resulting in billions expended and many

plant closures in response to an unlawful regulation.

This “results first, legality second” approach was intentional.

Then-EPA

Administrator Gina McCarthy proclaimed this Court’s ruling on the lawfulness of the

MATS Rule did not matter, because given the time it took to litigate, “[m]ost of [the

EGUs] are already in compliance, [and] investments have been made.” Timothy

Cama & Lydia Wheeler, Supreme Court Overturns Landmark EPA Air Pollution

Rule, The Hill (June 29, 2015), https://tinyurl.com/yw5b3z8u. And on remand to the

D.C. Circuit, EPA argued (and that court accepted) that costs had by then become a

moot point because they’d already been imposed. App. 792a-93a (EPA Resp. to

Petitioners’ Motions To Govern Future Proceedings, White Stallion Energy Ctr., LLC.

v. EPA, No. 12-1100, Entry 1579186 at 14-15 (D.C. Cir. Oct. 21, 2015)); see also App.

794a-95a (D.C. Cir. Order, White Stallion Energy Ctr., LLC. v. EPA, No. 12-1100,

Entry 1588459 at 1-2 (D.C. Cir. Dec. 15, 2015)). So ultimately, EPA unlawfully failed

to consider the rule’s costs, yet succeeded in having those costs imposed anyway.

In 2020, EPA conducted the 8-year Residual Risk and Technology Reviews. In

its Residual Risk Review, EPA “determined that the current [standard] provides an

ample margin of safety to protect public health and prevent an adverse

environmental effect.”

85 Fed. Reg. 31286, 31314 (May 22, 2020).

And in the

Technology Review, EPA determined there were no developments in emission control

technologies, practices, or processes that warranted revising the rule. 85 Fed. Reg.

at 31298 (“there are no developments in HAP emissions controls to achieve further

cost-effective reductions beyond the current standards”). Accordingly, EPA concluded

it was not “necessary” to revise the original MATS rule. 85 Fed. Reg. at 31314.

But six months later there was a change in presidential Administration, and

the current Administration issued Executive Order 13990, entitled “Protecting Public

Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86

Fed. Reg. 7037 (Jan. 25, 2021). Without identifying any legal or factual basis to do

so, the Executive Order directed EPA to consider “suspending, revising, or rescinding”

the 2020 Residual Risk and Technology Reviews for the MATS Rule—a rule that has

nothing to do with greenhouse gases or climate change.

Following Executive Order 13990, EPA reconsidered its 2020 Residual Risk

and Technology Reviews for the MATS Rule. For public health, EPA reached the

exact same conclusion—that the original rule provided an ample margin of safety to

protect public health. 88 Fed. Reg. 24854, 24895 (Apr. 24, 2023). As EPA noted, its

2020 residual risk analysis was “a rigorous and robust analytical review using

approaches and methodologies that are consistent with those that have been utilized

in residual risk analyses and reviews for other industrial sectors … [and] the results

of the 2020 residual risk assessment … indicated low residual risk from the coal- and

oil-fired EGU source category.” 88 Fed. Reg. at 24866.

EPA’s longstanding practice is that an ample margin of safety is a maximum

excess cancer risk to the most exposed individual of less than 100-in-a-million. See

Nat. Res. Def. Council v. EPA, 529 F.3d 1077, 1082 (D.C. Cir. 2008). And under the

Clean Air Act, EPA has discretion to delete a source category from regulation entirely

if its HAP emissions do not “cause a lifetime risk of cancer greater than one in one

million to the individual in the population who is most exposed.”

42 U.S.C.

§ 7412(c)(9)(B)(i); see also Nat. Res. Def. Council, 529 F.3d at 1082 (one-in-one million

standard is the Clean Air Act’s “aspirational goal”). Here, under the standards

already in place, the lifetime cancer risk of the person most exposed to coal-fired HAP

emissions in the country is 0.344-in-a-million—significantly lower than the one-in-amillion threshold where EPA can stop regulating a source category entirely. App.

642a (NACCO Cmt. at 15, EPA-HQ-OAR-2018-0794-6000) (citing App. 650a-661a

(Residual Risk Assessment for the Coal- and Oil-Fired EGU Source Category in

Support of the 2020 Risk and Technology Review Final Rule, EPA-HQ-OAR-20180794-4553, App. 10, Tbls. 1 & 2a. (Sept. 2019)).

That should have been the end of it. In other Section 112(d)(6) rulemakings,

EPA itself has taken the position that if its standards already “provide an ample

margin of safety to protect public health and prevent adverse environmental effects,

one can reasonably question whether further reviews of technological capability are

‘necessary.’” 69 Fed. Reg. 48338, 48351 (Aug. 9, 2004); see also 71 Fed. Reg. 76603,

76608 (Dec. 21, 2006). But in this rulemaking, where the risk from coal-fired units

is less than the negligible level of one-in-one-million, EPA did not even ask the

question.

Instead, EPA reversed course, deciding to see if it could interpret

“development” in a way that would allow it to lower HAP emission standards for coal-

fired EGUs in the absence of any significant new practices, processes, or control

technologies, and without quantifiable public health benefit from that reduction in

HAP emissions. And lo and behold, EPA claimed to find “developments” that would

justify dramatically revising the MATS rule in two ways: (1) reducing the surrogate

fPM emission standard for all coal-fired EGUs by 66%; and (2) reducing the mercury

emission standard for lignite coal-fired EGUs by 70%.

For the surrogate fPM standard, EPA’s Technology re-Review again found “no

new practices, processes, or control technologies” for the relevant HAP emissions. 88

Fed. Reg. at 24868. The primary control technologies used in 2012 are the same as

today. See App. 662a (2023 Tech Review at 1). Nonetheless, EPA justified ratcheting

down the standards under Section 112(d)(6) on the grounds that existing control

technologies “are more widely used, more effective, and cheaper.” 88 Fed. Reg. at

24866-72. EPA further concluded that “…most EGUs were reporting fPM emission

rates well below the 0.030 lb/MMBtu standard. The fleet was achieving these

performance levels at lower costs than estimated” during promulgation of the original

MATS rule. 89 Fed. Reg. at 38530.

EPA’s “development,” in other words, was that EGUs were meeting the

standard at lesser costs than estimated in 2012. EPA also determined there were

marginal improvements in fPM control technology since the original MATS rule,

stating that “industry has learned and adopted ‘best practices’ associated with

monitoring ESP operation,” and more “durable” materials for fabric filters have been

developed since the original MATS rule. 89 Fed. Reg. at 38530.

And for the mercury emission standard, EPA revised the standard for lignitefiring EGUs because of alleged cost efficiencies for activated carbon injection control

technology—the same technology that was in place at the time of the original MATS

Rule. 88 Fed. Reg. at 24880. Then, with almost no record support, and in the face of

numerous comments to the contrary, EPA determined those alleged cost efficiencies

make lignite-firing EGUs capable of meeting the same control standard as other types

of coal, dropping the emission standard by 70%. 89 Fed. Reg. at 38586.

EPA also prepared an analysis of the potential costs and benefits of the Rule

in its Regulatory Impact Analysis (“RIA”). App. 685a, 718a-19a (RIA 3-1, 4-1–4-2).

Able to point to no quantifiable public health benefit from the Rule’s reduction in

HAP emissions, EPA attempted to justify the Rule by claiming climate change

benefits. 89 Fed. Reg. at 38561-62 (quantifying alleged particulate matter, ozone,

and “climate” benefits); see also App. 723a-24a (RIA 4-16–4-17) (assessing climate

impacts in its benefits analysis). EPA also claimed vague and unquantifiable benefits

from mercury-reduction for subsistence fish consumers but recognized that these

postulated benefits are so small they cannot be reliability extrapolated or quantified.

App. 722a (RIA 4-5).

In exchange for zero quantifiable benefits from the mandated reduction in HAP

emissions, the Rule imposes tremendous costs. For surrogate fPM emissions, the

cost-effectiveness is $10.5 million per ton of HAP removed. 89 Fed. Reg. at 38532-33.

Commenters noted this cost is much higher than the cost-benefit ratios EPA itself

has explicitly rejected in other Section Rule 112 rulemakings for being excessive. And

EPA admits as much. 89 Fed. Reg. at 38523 (“EPA acknowledges that the costeffectiveness values for these standards are higher than cost-effectiveness values that

the EPA concluded were not cost-effective … for some prior rules.”).

Commenters also stressed that the Rule’s substantial compliance costs will

result in serious economic harm and threaten power grid reliability. Yet EPA failed

to address power outages or grid reliability in its RIA, matter-of-factly stating that

the Rule will have no significant impact on the power grid or energy prices. See App.

685a-717a (RIA Section 3); 89 Fed. Reg. at 38555-56. And while EPA claims it

consulted with the Department of Energy, the agency points only to a generic

Memorandum of Understanding with DOE regarding interagency cooperation.

Nothing in the record indicates EPA consulted with DOE (or any other grid operator

or reliability expert) on this specific rule. See App. 676a-677a (Response to Comments

at 156-57) (“This process is not linked to any one regulatory effort or final action.”).

Moreover, EPA is promulgating this Rule against the backdrop of its failure to

accurately estimate the impact the last MATS Rule would have on power plant

operations. The last time the MATS Rule was litigated, EPA claimed it would only

cause about 5,000 MW of generation to go offline. 77 Fed. Reg. at 9407 (“…expected

retirements of coal-fueled units as a result of this final rule (4.7 GW) are fewer than

was estimated at proposal and much fewer than some have predicted”). EPA was

wrong. It ended up being closer to 60,000 MW.1 Our power grids do not have the

1 See, e.g., U.S. Energy Info. Admin., Planned coal-fired power plant retirements continue to increase

(Mar. 20, 2014), bit.ly/4dbYwfM (between 2012 and 2020, “about 60 gigawatts of coal-fired capacity is

projected to retire … assum[ing] implementation of the MATS standards”); Pratson et. al., Fuel Prices,

same buffer of dispatchable generation that they did a decade ago.

App. 595a

(Vigesaa Decl. ¶11-12); App. 282a (Lane Decl. ¶¶12-13); App. 272a-273a (Huston

Decl. ¶¶8-14).

Applicant States, along with many other petitioners, moved the D.C. Circuit to

stay implementation of the MATS Rule pending litigation and provided an array of

declarations describing the imminent harms threatened by the Rule’s compliance

deadlines. During the D.C. Circuit stay briefing, this Court issued its decisions in

Loper Bright and Ohio v. EPA. Loper Bright Enter. v. Raimondo, 144 S. Ct. 2244

(2024); Ohio v. EPA, 144 S. Ct. 2040 (2024). The D.C. Circuit denied the stay motions

on August 6, 2024, stating only that “Petitioners have not satisfied the stringent

requirements for a stay pending court review.” App. 1a. Applicants now move this

Court for a stay of the Rule pending resolution of the merits.

REASONS TO GRANT THE APPLICATION

This Court should stay the Rule until the merits of the challenges to it are

resolved because the States will suffer irreparable harm absent a stay, a stay will not

injure other parties or the public interest, and the States will likely succeed on the

merits. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Of course, this application is not the only Clean Air Act-related emergency stay

this Court has seen recently. States’ Emergency Application for an Immediate Stay,

Emission Standards, and Generation Costs for Coal v Natural Gas Power Plants, Am. Chem. Soc’y,

Env’l Sci. & Tech., 4929 (Mar. 2013), bit.ly/3w7yLN2 (most coal-fired EGU retirements in the wake of

the original MATS Rule were due to “stronger regulations,” not unrelated market forces); see also App.

620a (Nat’l Min. Ass’n Cmt. at 2 & n.4, EPA-HQ-OAR-2009-0234-20531) (for the nearly 60 gigawatts

of coal-fired EGU retirements announced between 2012 and 2016, “virtually all” the stated closures

were “either fully or partially attributable to MATS and other EPA regulations”).

West

Virginia

EPA,

No.

24A95

(docketed

July

26,

2024),

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public

/24a95.html. But these stay applications are the result of EPA’s decision to bundle

and simultaneously promulgate a “suite” of rules targeting coal-fired power plants

with retirement-inducing costs. See EPA, Biden-Harris Administration Finalizes

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

2024), https://tinyurl.com/y5u92sx3. Serial agency actions that ignore congressional

direction in order to destroy an entire industry require serial remedies.

THE STATES WILL SUFFER IRREPARABLE HARM WITHOUT A

STAY

Absent a stay, Applicant States will suffer imminent and irreparable injury

from the Rule. Applicant States, grid operators, and regulated EGUs provided an

array of declarations establishing that the Rule will seriously undermine the long

term reliability of our nation’s power grids. Though retirements necessitated by the

Final Rule may not happen for several years, irreversible decisions to put power

plants on retirement tracks will need to be made now. But even short of potential

power grid failures, the Rule will cause imminent and significant cost increases for

ratepayers and consumers of electricity, including Applicant States themselves as

major consumers of electricity.

The Rule Jeopardizes the Stability of the Nation’s Power Grids.

Power grid instability and failures are frequently paid for in human lives. E.g.,

App. 680a-82a (FERC-NERC-Regional Entity Staff Report: The February 2021 Cold

Weather Outages in Texas and the South Central United States at 8-10 (Nov. 16,

2021) (over 200 fatalities during weather event “with most of the deaths connected to

the power outages”)).

Consequently, threats to power grid reliability constitute

irreparable harm. E.g., Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) (“the threat of

grid instability and potential brownouts alone constitute irreparable injury.”). And

here, State and grid regulators have attested to the Rule’s significant, foreseeable,

and negative impacts on grid reliability. See, e.g., App. 595a-600a (Vigesaa Decl.

¶¶11-26; App. 162a-168a (Fedorchak Decl. ¶¶7-24); App. 285a-293a (Lane Decl. ¶¶1834); App. 550a-551a (Rickerson Decl. ¶¶13-15); App. 518a-525a (Nowakowski Decl.

¶¶7-12); App. 603a-604a (Webb Decl. ¶¶6-10); App. 273a (Huston Decl. ¶12).

According to a study commissioned by the North Dakota Transmission

Authority, if the Rule causes any of North Dakota’s lignite-fired EGUs to retire—

which it appears designed to do—it will risk causing the entire MISO grid (which

covers all or part of 15 states and parts of Canada) to experience black-outs resulting

in economic damages ranging from $29 million to over $1 billion. App. 598a-600a

(Vigesaa Decl. ¶¶22-25). Other declarants have attested to the devastating effects of

grid failure, including documented health impacts and morbidity. App. 341a-342a

(McLennan Decl. ¶67); App 541a-542a (Purvis Decl. ¶31) (“Other concrete damages

would occur such as business shutdowns, food spoilage, property damage, and lost

labor productivity”).

Notwithstanding EPA’s nothing-to-see-here attitude, there is substantial

evidence in the record indicating that coal-fired power plant shutdowns are not only

possible but likely due to the Rule, and that those retirements will cause significant

threats to the long term reliability of the power grid. E.g., App. 609a-610a (Bohrer

Decl. ¶¶21-24); App. 329a-332a, 343a-344a (McLennan Decl. ¶¶34-39, 70) (“Recent

test data suggest that Minnkota will not be able to meet the New Mercury Limitation

even at the higher PAC injection rates that EPA assumed to be sufficient to meet the

New Mercury Limitation.”); App. 558a-559a (Tschider Decl. ¶¶21-23); App. 306a308a (McCollam Decl. ¶¶34-43); App. 537a-539a (Purvis Decl. ¶¶24-25) (upgrades to

comply “will certainly fail, despite best engineering and maintenance practices, due

to the lack of any margin to meet the aggressively low new fPM limitation”).

EPA has never grappled with this information, preferring to stick its head in

the sand and rely on its unrealistic and counterfactual model which predicts that

absolutely zero EGU retirements or shutdowns will occur as a result of the Rule. 89

Fed. Reg. at 38526. Though in a telling section, EPA dismisses widespread concerns

about the Rule’s foreseeable impact on power grid reliability by assuming that State

or regional regulators will be able to use emergency powers to prop up the power grid

if the Rule makes EGUs no longer commercially viable. 89 Fed. Reg. at 38526.

Moreover, this Rule is not the first time EPA has significantly underestimated

the impact that its regulations will have on the power grid. As noted supra, the last

time the MATS Rule was litigated EPA claimed that the Rule would only cause about

5,000 MW to go offline. But that ended up being wrong by over a factor of ten. Our

power grids do not have the same buffer of dispatchable power that they had ten or

even five years ago, and an error of the same magnitude as EPA’s last profound error

will risk catastrophic impacts to our nation’s power grids. App. 595a (Vigesaa Decl.

¶11-12); App. 282a (Lane Decl. ¶¶12-13); App. 272a-273a (Huston Decl. ¶¶8-14).

“EPA has no expertise on grid reliability.” Texas, 829 F.3d at 432. Nor did

EPA seek input from FERC or NERC before promulgating the Rule, entities

entrusted with maintaining the reliability of our nation’s power grids and which could

have apprised it of the Rule’s likely impact on grid reliability. EPA’s lack of expertise,

its pattern of grossly underestimating its Rules’ impacts on power plant operations,

and the seriousness of the attendant consequences weigh strongly in favor of a stay.

The Rule Will Impose Irreparable Economic Injury

In addition to the Rule’s threats to grid reliability, Applicant States will suffer

irreparable economic harm as a result of the Rule. EPA recognizes that compliance

with the Rule will impose nearly a billion dollars in costs (presuming plants are able

to comply at all). 89 Fed. Reg. at 38513, 38561. And as noted supra, complying with

the Rule’s three-to-four-year implementation period requires EGUs to make

compliance and retirement decisions now. App. 609a-611a (Bohrer Decl. ¶¶24-28);

App. 338a (McLennan Decl. ¶58); App. 560a-561a (Tschider Decl. ¶¶25-30); App.

306a-309a (McCollam Decl. ¶¶34-43); App. 179a (Friez Decl. ¶¶16-17); App. 533a535a (Purvis Decl. ¶¶15-19).

Without a stay, EGUs must immediately begin incurring costs. As of yet, it

has not actually been established that EGUs will be able to consistently meet the

Rule’s new emission standards, and testing is needed to determine a pathway to

compliance, if compliance is even possible. E.g., App. 334a (McLennan Decl. ¶45)

(“Minnkota must immediately begin mercury testing”); App. 555a (Tschider Decl.

¶11) (“must begin implementing the required controls and monitoring system

immediately”). And beyond initial testing, supply constraints and the realities of

power plant modification mean that meeting the Rule’s three or four year deadlines

require work to begin imminently. App. 609a-611a (Bohrer Decl. ¶¶24-28); App. 338a

(McLennan Decl. ¶58); App. 560a-561a (Tschider Decl. ¶¶25-30); App. 306a-309a

(McCollam Decl. ¶¶34-43); App. 179a (Friez Decl. ¶¶16-17); App. 533a-535a (Purvis

Decl. ¶¶15-19).

And even if EGUs are able to find a way to consistently comply with the Rule,

and even if they can meet the Rule’s deadlines for doing so, implementing the Rule

will inevitably result in increased electricity prices for ratepayers, including

Applicant States themselves as consumers of electricity.

E.g., App. 168a-170a

(Fedorchak Decl. ¶¶25-33) (compliance costs for just one lignite-fired plant in North

Dakota will cause at least a 0.5 percent rate increase); see also App. 287a-288a (Lane

Decl. ¶23); App. 274a (Huston Decl. ¶¶16-17); App. 608a-609a (Bohrer Decl. ¶¶1821); App. 333a-334a (McLennan Decl. ¶43); App. 561a (Tschider Decl. ¶29); App.

306a-307a (McCollam Decl. ¶¶33-35); App. 531a-532a (Purvis Decl. ¶11); App. 274a

(Huston Decl. ¶17) (explaining how costs of installations are passed on to consumers).

Indeed, EPA doesn’t dispute that complying with the Rule will necessarily impose

costs resulting “in the form of higher electricity bills.” App. 782a (EPA Br. 44).

Applicant States (and their ratepaying citizens) will not be able to recover

these costs even if they prevail on the merits, making those injuries irreparable. E.g.,

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J., concurring

in part and in the judgment) (“complying with a regulation later held invalid almost

always produces the irreparable harm of nonrecoverable compliance costs”).

II.

THE BALANCE OF HARMS AND THE PUBLIC INTEREST FAVOR A

STAY

The balance of harms and public interest weigh strongly in favor of a stay

because, as discussed supra, EPA cannot point to any relevant, quantifiable harm to

the public in staying the Rule. EPA acknowledges that the status quo, without the

new Rule, already protects public health with an “ample margin of safety.” 89 Fed.

Reg. at 38508. Indeed, the current standard already far exceeds the Clean Air Act’s

aspirational standard for protecting public health, where, by statute, EPA could

discontinue regulating the EGUs entirely. Conversely, the economic injuries and

threats to power grid stability in the absence of a stay are real and imminent.

The public interest also strongly favors preserving the status quo when the

public’s access to affordable electricity is threatened. Texas, 829 F.3d at 435 (granting

stay of EPA action that threatened to impose retirement-inducing costs on coal-fired

plants because the “public interest in ready access to affordable electricity”

outweighed “inconsequential” emissions reductions that implementation would have

achieved during the pendency of the litigation); see also, e.g., West Virginia v. EPA,

90 F.4th 323, 332 (4th Cir. 2024) (“the public [] has an interest in the efficient

production of electricity and other industrial activity in the State, even as such

production is balanced with environmental needs”); Sierra Club v. Ga. Power Co., 180

F.3d 1309, 1311 (11th Cir. 1999) (denying preliminary injunction where it threatened

to reduce power generation, as “[a] steady supply of electricity … especially … [for]

the elderly, hospitals and day care centers, is critical”); Tri-State Generation &

Transmission Ass’n v. Shoshone River Power, Inc., 805 F.2d 351, 357 (10th Cir. 1986)

(public interest in residents not “los[ing] their source of electric power”).

In short, even EPA acknowledges that current levels of HAP emissions from

the worst performing coal-fired EGUs in the country already provide more than an

ample margin of safety. There is no relevant, quantifiable public health benefit that

will be gained by denying a stay, whereas the risks of not imposing a stay are

tremendous. The balance of equities and public interest tilt sharply in favor of a stay.

III.

APPLICANTS WILL LIKELY PREVAIL ON THE MERITS

In promulgating the challenged Rule, EPA disregarded the statutory text

constraining its ability to exercise Section 112(d)(6) rulemaking authority only when

doing so is “necessary.” A revision can hardly be “necessary,” when there is no

relevant health benefit from it (as EPA itself has recognized in the past). And EPA’s

capacious interpretation of Section 112(d)(6)’s use of the term “development” to mean

meeting the standard at lower costs is not a rational, let alone the “best” reading of

the statute, and not entitled to any deference. Loper Bright, 144 S. Ct. at 2273.

Moreover, EPA’s cost-benefit analysis of the Rule is indefensible, and the

agency largely ignored evidence about one of the most critical aspects of the

problem—the impact the Rule would have on grid reliability. All of which leads to

the inexorable conclusion that the Rule’s claimed public health benefits are merely

pretext for EPA’s true purpose in promulgating the Rule: regulating criteria

pollutants related to climate change. Contra West Virginia, 597 U.S. at 735.

EPA Has Exceeded the Authority Delegated by Congress

Section 112(d)(6) of the Clean Air Act directs EPA to “review, and revise as

necessary (taking into account developments in practices, processes, and control

technologies), emission standards promulgated under this section no less often than

every 8 years.”

42 U.S.C. § 7412(d)(6).

The “operative” phrase is “revise as

necessary,” and “EPA must consider practical and technological advances” when

determining whether revision is “necessary.” La. Envtl. Action Network v. EPA, 955

F.3d 1088, 1097-98 (D.C. Cir. 2020). Here, EPA has not even attempted to satisfy the

statutory requirement that the Rule be “necessary,” and its legal theory about what

constitutes a “development” is unmoored from the statute.

Revising the MATS Standard Is Not “Necessary”

As a matter of common understanding and parlance, “necessary” means

“needed for some purpose or reason; essential.” Black’s Law Dictionary, Necessary

(11th ed. 2019); see also, e.g., Merriam Webster’s Collegiate Dictionary, Necessary

(10th ed. 1994) (“absolutely needed”).

Use of the term “necessary” is context-

dependent, and requires answering the question necessary for what? Armour & Co.

v. Wantock, 323 U.S. 126, 129-30 (1944) (“the word ‘necessary,’ [] has always been

recognized as a word to be harmonized with its context”). And in the context of Clean

Air Act Section 112, the “for what” can only be protecting public health and the

environment from adverse effects of the regulated HAPs.

See, e.g., 42 U.S.C.

§§ 7412(b)(3)(B), (C) (substances shall be included or deleted from regulation under

Section 112 based on “adverse effects to human health or adverse environmental

effects”). And that is doubly true for power plants, where Congress required EPA to

“perform a study of the hazards to public health” before it undertook any regulation

of power plants under Section 112. 42 U.S.C. § 7412(n)(1)(A).

Here, the Rule’s revisions to the MATS standard can hardly be deemed

“necessary” when EPA is unable to point to any meaningful public health benefit to

be gained from the Rule. Indeed, in other Section 112(d)(6) rulemakings, EPA itself

has acknowledged that when its HAP emission standards already “provide an ample

margin of safety to protect public health and prevent adverse environmental effects,

one can reasonably question whether further reviews of technological capability are

‘necessary.’” 69 Fed. Reg. at 48351; see also 71 Fed. Reg. 34422, 34437 (Jun. 14, 2006)

(where an existing HAP emission standard “obtains protection of public health with

an ample margin of safety and prevents adverse environmental effects, it is unlikely

that it would be ‘necessary’ to revise the standard further, regardless of possible

developments in control options”).

EPA makes no attempt to quantify any public health or environmental benefits

from the Rule’s mandated reduction in HAP emissions. 89 Fed. Reg. at 38518-19;

38562. Instead, the only alleged “benefits” EPA purports to quantify in the Rule are

reducing criteria pollutants and greenhouse gas emissions. See 89 Fed. Reg. at 38561

(pointing to alleged particulate matter, ozone, and “climate” benefits). But these

alleged ancillary benefits cannot be used to justify EPA’s exercise of rulemaking

authority under Section 112(d)(6). As Chief Justice Roberts recognized the last time

the MATS Rule was litigated, it is improper for EPA to use its Section 112 authority

to “get at the criteria pollutants that you otherwise would have to go through a much

more difficult process to regulate. In other words, you can’t regulate the criteria

pollutants through the HAP program ….”

App. 798a-99a (Transcript of Oral

Argument at 59:19–60:5, Michigan v. EPA, Nos. 14-46, 14-47, 14-49 (Mar. 25, 2015));

cf., e.g., Wyoming v. Dep’t of Interior, 493 F. Supp. 3d 1046, 1079 (D. Wyo. 2020)

(agency “cannot rationally claim the Rule’s objective is waste prevention while

justifying its considerable costs almost entirely on climate change benefits”).

Rather than trying to meet Section 112(d)(6)’s necessary requirement by

establishing any relevant, quantifiable benefit to the Rule, EPA claims Section

112(d)(6) gives it the power to ratchet down HAP emission standards simply on the

basis that “less is better.” App. 739a (EPA Br. 1) (arguing its Section 112(d)(6)

authorities are guided by a “[l]ess is better” standard). But this “less is better”

assertion has no basis in the text of Section 112(d)(6) and ignores the statutory

language constraining EPA’s ability to make Section 112(d)(6) revisions only when

doing so is “necessary.” Congress could have said that EPA should revise these

standards whenever “possible.” But it didn’t.

In short, the Rule is not “necessary” under the language of Section 112(d)(6)

and any common sense meaning of that term, and EPA’s failure to make any necessity

determination before promulgating the Rule contravenes the statutory text.

There Has Not Been a “Development” to Justify Revising

the MATS Rule

Rather than establishing that the Rule’s revisions are “necessary” because the

reduction in HAP emissions provides any relevant public health benefit, EPA grounds

the Rule solely on the contention that there have been “developments” that enable

dramatically ratcheting down the standards. 89 Fed. Reg. at 38518. But even setting

aside its failure to grapple with the term “necessary,” EPA’s capacious interpretation

of the term “development” is also wrong.

As used in the context of Section 112(d)(6), “development” must mean some

new, significant change that is correlated to revision of the emission standard. E.g.,

Am. Heritage Dictionary (5th ed. 2011), Development (“A significant event,

occurrence, or change”). Congress cannot have intended to empower EPA to revise

the Section 112(d)(6) standards every time there is some alleged cost savings or some

minor change or modification equivalent to a cell phone software patch.

EPA itself has previously recognized that a determination there are no

substantially new practices, processes or control technologies means there are no

“developments” that would allow revising an emission standard under Section

112(d)(6). See App. 646a-647a (2018 Tech Review Memo at 9-10); see also 76 Fed. Reg

81328, 81341 (Dec. 27, 2011) (defining “developments” for purposes of Section

112(d)(6) as: “(1) Any add-on control technology or other equipment that was not

identified and considered during development of the [prior standard]; (2) Any

improvements in add-on control technology or other equipment (that were identified

and considered during development of the [prior standard]) that could result in

significant additional emissions reductions; (3) Any work practice or operational

procedure that was not identified or considered during development of the [prior

standard]; and (4) Any process change or pollution prevention alternative that could

be broadly applied to the industry and that was not identified or considered during

development of the [prior standard]”). None of these criteria are met here.

Nonetheless, to advance a policy goal of forcing coal-fired EGUs out of the

market by setting dramatically reduced emission standards, EPA now interpreted

the term “development” in Section 112(d)(6) to include the fact that EGUs have been

able to comply with the existing standards at less costs than previously predicted.

EPA purports to have found that many coal-fired plants have been able to comply

with the surrogate fPM emission standards with more cost efficiency than EPA

assumed when it promulgated the original MATS Rule. For surrogate fPM emissions,

EPA claims as a “development” its alleged finding “that a majority of sources were

not only reporting fPM emissions significantly below the current emission limit, but

also that the fleet achieved lower fPM rates at lower costs than the EPA estimated

when it promulgated the 2012 MATS Final Rule.” 89 Fed. Reg. at 38521. Similarly,

for mercury emissions from lignite-fired EGUs, EPA claims that alleged cost

efficiencies for controlling mercury emissions from lignite-fired EGUs mean that

those EGUs can be held to the same mercury emission standard as other coal-fired

EGUs, and it “expect[s] that the units could meet the final, more stringent, emission

standard of 1.2 lb/TBtu by utilizing brominated activated carbon at the injection rates

suggested in the beyond-the-floor memorandum from the 2012 MATS Final Rule.” 89

Fed. Reg. at 38547.

But those alleged cost efficiencies are not “developments” under Section

112(d)(6). The “core requirement” for tightening HAP emission standards under

Section 112(d)(6) is for EPA to identify new technological developments. Natural Res.

Def. Council v. EPA, 529 F.3d at 1080, 1084 (summarizing Section 112(d)(6) as

commanding “the Administrator to ‘review, and revise as necessary’ the technologybased standards in light of technological developments”) (emphasis added). And that

interpretation makes sense; Congress intended Section 112(d)(6) to serve as a

periodic review of whether there were substantial changes in control technologies

that would allow EPA to revise previously issued standards.

There must be a

substantial change in control technology or processes that is directly correlated to the

mandated reduction in emission levels.

EPA now claims that a Section 112(d)(6) “development” can mean any

“incremental changes,” to include alleged cost efficiencies. App. 749a (EPA Br. 11).

But the flaws in EPA’s legal theory are obvious. All regulated sources must comply

with a HAP emission standard once it is issued, or they must stop emitting. And for

emission sources with variable fuel supplies (like coal-fired EGUs), they must do so

at a level that ensures continuous compliance. If meeting an emission standard with

alleged cost efficiency qualified as a “development,” then the simple fact that a facility

was complying with the relevant HAP emissions standard would allow EPA to

continually tighten that standard in perpetuity until regulated sources can no longer

meet the standards and are forced to shut down. This ever-tightening squeeze cannot

be what Congress intended. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 575, (1982) (interpretation of a statute that would produce absurd results is to

be avoided if alternative interpretations, consistent with legislative purpose, are

available).

Even EPA has previously recognized that Section 112(d)(6) puts

meaningful constraints on its ability to continuously ratchet down HAP emission

standards. See 70 Fed. Reg. 19992, 20008 (Apr. 15, 2005) (“We reiterate that there is

no indication that Congress intended for section 112(d)(6) to inexorably force existing

source standards progressively lower and lower in each successive review cycle …”).

EPA has relied upon the D.C. Circuit’s decision in Nat’l Ass’n for Surface

Finishing v. EPA to justify its capacious interpretation of the term “development.”

See App. 751a (EPA Br. 13 (citing 795 F.3d 1 (D.C. Cir. 2015)). But for a variety of

reasons, EPA’s invocation of that decision is not persuasive.

For one, in Surface Finishing, the D.C. Circuit specifically noted that the

petitioner trade association did not challenge EPA’s broad legal interpretation of the

word “developments” under Section 112(d)(6). 795 F.3d at 8. Consequently, the Court

did not address, let alone rule upon, the validity of EPA’s capacious interpretation of

the term. Cf. Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk

in the record, neither brought to the attention of the court nor ruled upon, are not to

be considered as having been so decided as to constitute precedents.”).

Here,

Applicants do affirmatively challenge EPA’s interpretation.

Second, the Surface Finishing court specifically relied upon “the familiar

deferential standard announced in Chevron.” 795 F.3d at 7. Chevron is of course no

longer good law, and courts must now “exercise their independent judgment in

deciding whether an agency has acted within its statutory authority, as the APA

requires.” Loper Bright, 144 S. Ct at 2273. The D.C. Circuit’s one-sentence denial of

Petitioners’ motions to stay gives no indication that the court gave proper, or any,

consideration to these critical issues and changes in law.

And third, in Surface Finishing EPA identified several technologies—

emissions elimination devices, HEPA filters, enclosing tank hoods and fume

suppressants—in support of its determination that there had been “developments”

that warranted a reduction there. 795 F.3d at 11. Here, by contrast, EPA has not

identified any such new technologies. Electrostatic precipitators and fabric filters

were available for surrogate fPM control under the original MATS rule in 2012, and

EPA itself determined those are the same technologies used today. See 88 Fed. Reg.

at 24865. Similarly, activated carbon injection was available for control of mercury

emissions under the original MATS rule in 2012, and that is the same technology

used to control mercury emissions today. See 89 Fed. Reg. at 38517.

Finally, the marginal purported “developments” (other than alleged cost

efficiencies) that EPA identified in the Final Rule cannot save it. For surrogate fPM

emissions, EPA claims that increased durability in filter-bag material for baghouse

controls is a development that warrants a ratcheting down of the fPM standard. 89

Fed. Reg. at 38530. But improvements in filter durability cannot be a “development”

under the Clean Air Act, because in setting the HAP emission standard EPA already

presumed that no malfunctions will occur. See 77 Fed. Reg. 9304, 9393 (Feb. 16,

2012). In other words, the MATS standard already assumes that the filter-bags will

never break, so any alleged improvement in their durability is not a “development”

that would justify further tightening the standard. Similarly, for mercury emissions,

activated carbon injection has been used since 2011, when EPA first proposed the

original MATS standard, and the Final Rule’s emphasis on the effectiveness of

brominated powdered activated carbon is misplaced—as this product was both

available and in use when EPA set the mercury standard in the original MATS rule.

89 Fed. Reg. at 38547; 76 Fed. Reg. 24976, 25014 (May 3, 2011). It cannot be a

“development” justifying revising the standard.

* * * *

In summary, EPA can only revise HAP emission standards under Section

112(d)(6) when doing so is “necessary.” EPA failed to make any determination that

the challenged Rule’s revision to the MATS standard were “necessary,” and revisions

without any corresponding benefit to either the public health or the environment from

the mandated reduction in HAP emission can scarcely be described as “necessary.”

But even if a “development” in control technologies could be used to justify a Section

112(d)(6) revision without any corresponding benefit to public health or the

environment, there has been no such development that would support the Rule’s

dramatic revisions to the standard here, and EPA’s capacious interpretation of the

term is not entitled to any degree of deference.

The Final Rule is Arbitrary and Capricious

An agency’s rulemaking is arbitrary and capricious “if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem…or is so implausible that it could not be ascribed to

a difference in view of the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v.

State Farm, 463 U.S. 29, 43 (1983). This Rule is arbitrary and capricious for many

reasons, each of which warrants vacating it.

EPA’s Cost-Benefit Analysis is Indefensible

This Rule makes clear that EPA has not learned the lessons this Court set

forth in Michigan v. EPA regarding the agency’s previous attempt to regulate HAP

emissions for the coal and oil-fired EGU source category.

In Michigan, this Court made clear that Clean Air Act Section 112(n)(1)(A)’s

use of the term “appropriate and necessary” “plainly subsumes consideration of cost.”

576 U.S. at 753, 756. And EPA acknowledges that consideration of costs is similarly

relevant for Section 112(d)(6) rulemakings.

See App. 754a (EPA Br. 16 (“EPA

considers ‘costs, technical feasibility, and other factors when evaluating whether it is

necessary to revise existing emission standards under [Section 7412](d)(6)) (quoting

89 Fed. Reg. at 38531); see also Ass’n of Battery Recyclers v. EPA, 716 F.3d 667, 67374 (D.C. Cir. 2013) (rejecting argument that cost is irrelevant to emission standard

revisions under Section 112(d)(6)).

EPA’s cost-benefit analysis for this Rule, to the extent it can be called a costbenefit analysis at all, provides no basis to justify the Rule. EPA anticipates that

that the Rule will impose compliance costs of at least $860 million. 89 Fed. Reg. at

38512. Those costs of nearly a billion are weighed against zero quantifiable public

health benefits from the mandated reduction in HAP emissions. In order to claim

some “benefits” of the Rule, EPA pivots to pointing to alleged benefits that are

unrelated to HAP emissions. 89 Fed. Reg. at 38512 (claiming $300 million in health

benefits from reductions of non-HAP pollutants and $130 million in other “climate

benefits”).

As noted supra, alleged benefits unrelated to the Rule’s mandated

reduction in HAP emissions cannot drive Section 112 rulemaking. And yet, even with

these impermissibly considered ancillary benefits, EPA acknowledges that the Rule

still has a “negative net monetized benefit”—meaning the costs of the Rule still

outweigh the benefits by at least $440 million. Id. at 38511.

Moreover, under EPA’s own calculations, the estimated cost-per-ton of HAP

removed exponentially exceeds cost-benefit ratios that EPA has rejected for other

Section 112 rulemakings. For surrogate fPM emissions, by EPA’s own math, the cost

effectiveness is $10.5 million per ton of HAP removed. 89 Fed. Reg at 38532-33. That

is orders of magnitude higher than dollars per ton costs that EPA has explicitly

rejected as being excessive. See 89 Fed. Reg. at 38522-23; 80 Fed. Reg. 75178, 75201

(Dec. 1, 2015) ($23,000 per ton of surrogate fPM emissions deemed excessive); 85 Fed.

Reg. 42074, 42090 (Jul. 13, 2020) ($14,000 per ton volatile HAP emissions deemed

excessive); 78 Fed. Reg. 10006, 10020-21 (Feb. 12, 2013) ($268,000 per ton of

surrogate fPM emissions deemed excessive); 88 Fed. Reg. 11556, 11565 (Feb. 23,

2023) ($4.7M per ton of lead emissions deemed excessive). These costs will likely

force power plant retirements and threaten grid reliability, see supra, but, even if

they didn’t, they will increase the price of electricity for consumers.

Having found that the costs of the Rule outweigh its benefits by at least $440

million (even when counting alleged ancillary benefits), 89 Fed. Reg. at 38512, EPA

decided to ignore that analysis and rely instead on “alternative metrics.” 89 Fed. Reg.

at 38532. EPA claims that the benefits of the Rule’s mandated reduction in HAP

emissions escape quantification. See 89 Fed. Reg. at 38559. That claim is in stark

contrast to the original MATS rule, wherein EPA was able to quantify the alleged

benefits of reducing the very same HAP emissions.

See 77 Fed. Reg. at 9425

(concluding the 2012 MATS rule’s reduction of 20 tons of mercury emissions would

provide $4-$6 million in benefits).

And regardless, EPA’s attempt to avoid

accountability for this Rule’s indefensible cost-benefit analysis by pointing to

unquantifiable (and unchallengeable) benefits is contrary to the reasoned

decisionmaking demanded from the agency by this Court in Michigan. Accord, e.g.,

GPA Midstream Ass’n v. DOT, 67 F.4th 1188, 1200 (D.C. Cir. 2023) (“Without

quantified benefits to compare against costs, it is not apparent just how the agency

went about weighing the benefits against the costs.”).

Moreover, every single past instance of rulemaking cited by EPA to justify

abandoning any attempt to quantify the relevant benefits of this Rule either found

the cost effectiveness to be within the range of acceptable values before considering

other cost metrics, or declined to enact the rule due to facility-specific determinations

of “poor cost effectiveness” even after considering other cost metrics. See 89 Fed. Reg.

at 38532 n. 52 (citing 87 Fed. Reg. 27002, 27008 (May 6, 2022); 87 Fed. Reg. 1616,

1635 (proposed Jan. 11, 2022); 80 Fed. Reg. 50386, 50398 (Aug. 19, 2015); 80 Fed.

Reg. 37366, 37381 (Jun. 30, 2015); 80 Fed. Reg. 14248, 14254 (Mar. 18, 2015); 77 Fed.

Reg. 58220, 58226 (Sep. 19, 2012); 77 Fed. Reg. 49490, 49523 (Aug. 16, 2012)).

EPA’s inability (or refusal) to quantify any HAP-related benefits of the Rule

speaks volumes about the Rule’s necessity and the adequacy of existing regulations.

And given that it is arbitrary and capricious for EPA to impose significant economic

costs “for a few dollars” of benefit,” Michigan, 576 U.S. at 752, so too where EPA

imposes substantial costs with “no meaningful benefit.” Mexican Gulf Fishing Co. v.

U.S. Dep’t of Commerce, 60 F.4th 956, 966 (5th Cir. 2023).

EPA Failed to Adequately Consider Power Grid Impacts

In Ohio v. EPA, this Court recently issued a stay after the D.C. Circuit refused

to, admonishing the agency must materially address comments relevant to its

rulemaking. Here again, the D.C. Circuit denied a stay where EPA has done the

same thing, this time regarding the Rule’s foreseeable impact on our power grids.

Numerous commentators for this Rule put EPA on notice that our nation’s

power grids are already extremely strained, and that the Rule will likely force at least

some coal-fired plants to retire. See, e.g., App. 636a (Rainbow Energy Center Cmt. at

4, EPA-HQ-OAR-2018-0794-5990); see also App. 614a (MISO Cmt. on Docket ID Nos.

EPA-HQ-OLEM-2021-0283,

EPA-HQ-OLEM-2021-0282,

EPA-HQ-OLEM-2021-

0280, at 3); App. 617a-618a (Minnkota Power Coop. Inc. Cmt. at 2-3, EPA-HQ-OAR2018-0794-5978); App.639a (Power Generators Air Coalition Cmt. at 12, EPA-HQOAR-2018-0794-5994); App. 625a-626a (NRECA Cmt. at 5-6, EPA-HQ-OAR-20180794-5956); App. 628a-633a (Cichanowicz Technical Cmt. at 39-44). Yet EPA failed

to meaningfully address grid reliability in its Regulatory Impact Analysis, see App.

685a-717a (RIA Section 3), and EPA has never meaningfully considered the

voluminous information it received describing the Rule’s serious risks to the power

grid.

EPA’s perfunctory conclusion that the significant costs the Rule imposes on

coal-fired EGUs will have no effect on the power sector, 89 Fed. Reg. at 38555-56,

does not reflect reasoned analysis entitled to any degree of deference. “EPA has no

expertise on grid reliability,” Texas, 829 F.3d at 432, and comment after comment put

EPA on notice that the Rule will foreseeably have significant impacts on power grid

reliability. Nonetheless, the Final Rule does not reflect any attempt by EPA to seek

input from FERC, NERC, or any similar entity that could have apprised it of the

Rule’s likely impact on grid reliability. Cf. Del. Dep’t of Nat. Res. & Envtl. Control v.

EPA, 785 F.3d 1, 18 (D.C. Cir. 2015) (encouraging EPA to solicit input from FERC on

remand, as “[t]here is no indication that either FERC, the federal entity responsible

for the reliability of the electric grid, 16 U.S.C. § 824o (b)(1), or NERC, FERC’s

designated electric reliability organization … was involved in this rulemaking or

submitted their views to EPA.”).

While EPA claimed in its briefing below that it “consult[ed] ‘other federal

agencies, reliability experts, and grid operators’” on the Rule, App. 772a (EPA Br. 34),

that assertion appears to be a red herring. In support of that claim, EPA cited only

on its own response to comments, where it describes a generic Memorandum of

Understanding with the Department of Energy for interagency cooperation on certain

aspects of grid reliability. App. 772a (EPA Br. 34). EPA does not indicate it consulted

with DOE (or any other grid operator or reliability expert) on this specific rule. App.

676a-677a (Response to Comments at 156-57) (“This process is not linked to any one

regulatory effort or final action.”).

In its briefing below, EPA also pointed to its “state-of-the art” model, which

assumes the Rule will cause zero plant retirements, to defend its conclusion that the

Rule will have no impact on power grid reliability. App. 772a (EPA Br. 34). But EPA

made no effort to ensure its model reflected the many comments it received warning

that its baseline assumption of zero coal-fired power plants being forced to retire was

likely incorrect, resulting in the agency reaching a conclusion that entirely ignores

away a significant aspect of the problem. Cf. Small Ref. Lead Phase-Down Task Force

v. EPA, 705 F.2d 506, 535 (D.C. Cir. 1983) (“agency must explain the assumptions

and methodology used in preparing [a] model and, if the methodology is challenged,

must provide a complete analytic defense”) (internal quotations omitted). EPA’s

failure to adequately consider one of the Rule’s most important impacts was arbitrary

and capricious. State Farm, 463 U.S. at 43.

Moreover, as noted supra, EPA has a history of dramatically underestimating

the impact of its MATS rules on power plant operations.

The last time EPA

promulgated a MATS Rule it assured the country it would only cause about 5,000

MW to go offline, and it ended up being wrong by over a factor of ten. The dramatic

difference represents a profound failure on EPA’s part to analyze the rule’s impacts

on power generation and provides “proof that the harm has occurred in the past and

is likely to occur again.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).

Consequently, EPA’s perfunctory conclusion that this Rule (dropping emission

standards by 66-70%) will not cause a single retirement, App. 700a (RIA at 3-16),

should be viewed with extreme skepticism given the number of comments and

declarations attesting EPA has gotten it profoundly wrong again.

Lastly, EPA’s analysis of the Rule’s power grid impacts is also arbitrary and

capricious because it fails to “acknowledge and account for” the impacts of

“contemporaneous and closely related rule[s].” Portland Cement Ass’n v. EPA, 665

F.3d 177, 187 (D.C. Cir. 2011). EPA expressly issued this Rule as part of a “suite” of

rules targeting coal-fired power plants.

See EPA, Biden-Harris Administration

Finalizes Suite of Standards to Reduce Pollution from Fossil Fuel-Fired Power Plants

(Apr. 25, 2024), https://tinyurl.com/y5u92sx3. EPA’s failure to meaningfully assess

how the confluence of these (and many other) rules targeting coal-fired power plants

will affect the power grid further cements its arbitrary and capriciousness.

EPA’s Basis for Promulgating the Rule is Pretextual

As an independent problem, EPA’s stated justifications for the Rule appear to

be pretextual. Dep’t of Com., 588 U.S. at 785. When an agency promulgates a rule,

it must truthfully “disclose the basis of its action,” and courts must set aside the rule

if “the evidence tells a story that does not match the explanation.” Id. at 780, 784.

Accepting “contrived reasons” would vitiate the reasoned-explanation requirement

and convert judicial review into an “empty ritual.”

Id. at 784-85.

There is

considerable evidence that is the case here. And in such cases, courts must evaluate

“pretext” in light of “all evidence in the record before the court.” Id. at 782.

Despite claiming it engaged in this rulemaking to protect the public from HAP

emissions, 89 Fed. Reg. at 38509-10, available evidence indicates that EPA is using

its Section 112(d)(6) authority as part of an effort to force a nationwide transition

away from coal for putative climate change reasons. Contra West Virginia, 597 U.S.

at 735 (2022) (declaring it “not plausible” the CAA empowers EPA to “force a

nationwide transition away from the use of coal to generate electricity”).

The current EPA Administrator has made no secret that the agency would

respond to this Court’s curtailment of its authority to implement climate changerelated rules by issuing a “suite” of rules designed to close fossil fuel-fired power

plants using a variety of regulatory authorities unrelated to climate change.

As just one example, Administrator Regan said his agency would “couple”

climate regulations with “health-based” regulations to regulate greenhouse gases and

get around the West Virginia v. EPA decision.

PBS: How much of a setback is [the West Virginia v. EPA decision] to

your efforts to regulate greenhouse gases?

Regan: …We still will be able to regulate climate pollution. And we’re

going to use all of the tools in our toolbox. …

PBS: Well, can you give us a couple of examples of the kind of tools that

you believe you still can use to regulate this industry?

Regan: …We also have a suite of regulations that are facing the power

sector. And so, as we couple the regulation of climate pollution with the

regulation of health-based pollution, we are providing the power sector

with a very clear picture of what regulations they’re facing so that they

can make the right investment decisions.

PBS, EPA Administrator Michael Regan discusses Supreme Court ruling on climate

change, YouTube (June 30, 2022) (emphasis added), https://www.youtube.com/

watch?v=Ic_1UxwsXj8 (accessed May 7, 2024); see also, e.g., White House, Press

Gaggle by Principal Deputy Press Secretary Karine Jean-Pierre & Env’t Prot. Agency

Adm’r Michael Regan (Feb. 17, 2022) (stating if the Supreme Court limits EPA’s

ability to regulate greenhouse gas emissions, EPA will respond with “bread-andbutter regulations,” such as “regulating mercury”), https://tinyurl.com/bddpr22j;

Chemnick et al., What the EPA’s New Plans for Regulating Power Plans Mean for

Carbon, Sci. Am. (Mar. 11, 2022) (noting that when asked about the impending West

Virginia decision, Administrator Regan said he “[doesn’t] believe [EPA] ha[s] to

overly rely on any one regulation” and suggested EPA could still achieve its climate

goals by using authorities for protecting the public from mercury and air toxins).

Such public comments match internal documents that have been produced

through FOIA indicating that EPA and the White House Climate Office contrived

revising the MATS Rule as a means of reducing power plant emissions for climate

change reasons. For example, in February 2021, EPA prepared a presentation for

the White House Climate Advisor.

See Power Sector Strategy: Climate, Public

Health, Environmental Justice, Briefing for Gina McCarthy and Ali Zaidi (Feb. 4,

2021). App. 145a (Chang Decl. ¶¶3-5).

While heavily redacted, the document

evidences EPA’s intent to use its regulatory authority under various programs,

including the MATS Rule, for reducing power plant emissions to implement the

Administration’s climate agenda. App. 146a (Chang Decl. ¶¶6-7).

EPA’s public statements and internal documents show that the “sole stated

reason” for the Rule—i.e., protecting the public from exposure to the regulated

HAPs—was likely “contrived.” Dep’t of Com., 588 U.S. at 784. This is not a case

where the Court must risk substantial intrusion on Administrator Regan to inquire

about his “mental processes,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 420 (1971), as his public statements already lay bare his motivations. And

the fact that EPA can identify no quantifiable public health benefits from the Rule’s

mandated reduction in HAP emissions, and instead claims millions of dollars in

“climate” benefits, resolves any doubt as to EPA’s true intent.

The purpose for EPA’s “suite” of rules targeting coal-fired plants is recognized

around the world, e.g., Milman, New US climate rules for pollution cuts ‘probably

terminal’ for coal-fired plants, Guardian (May 2, 2024), https://tinyurl.com/

ykmb9xvn, and courts are “not required to exhibit a naiveté from which ordinary

citizens are free.” Dep’t of Com., 588 U.S. at 785 (citation omitted).

CONCLUSION

For the reasons set forth above, the Court should stay the Rule pending

resolution of the merits, including through resolution of any petitions for certiorari.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

DREW H. WRIGLEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

PHILIP AXT

Solicitor General

*Counsel of Record

Office of the Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

Phone: 304.558.2021

michael.r.williams@wvago.gov

Counsel for State of West Virginia

NESSA HOREWITCH COPPINGER

DAVID M. FRIEDLAND

Special Assistant Attorneys General

Office of the Attorney General

600 E Boulevard Ave., Dept. 125

Bismarck, ND 58505

Phone: 701.328.2210

pjaxt@nd.gov

Counsel for State of North Dakota

TREG TAYLOR

Attorney General

TIM GRIFFIN

Attorney General

GARRISON TODD

Assistant Attorney General

Alaska Department of Law

1031 W. 4th Ave. Ste. 200

Anchorage, AK 99501

(907) 269-5100

Garrison.Todd@alaska.gov

NICHOLAS J. BRONNI

Solicitor General

DYLAN L. JACOBS

Deputy Solicitor General

Office of the Arkansas Attorney

General

323 Center Street, Suite 200

Little Rock, AR 72201

(501) 682-2007

nicholas.bronni@arkansasag.gov

Counsel for State of Alaska

Counsel for State of Arkansas

CHRISTOPHER M. CARR

Attorney General

RAÚL R. LABRADOR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Office of the Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

JOSHUA N. TURNER

Chief of Constitutional Litigation and

Policy

ALAN M. HURST

Solicitor General

Office of Idaho Attorney General

P.O. Box. 83720

Boise, Idaho 83720

(208) 334-2400

Josh.Turner@ag.idaho.gov

Alan.Hurst@aga.idaho.gov

Counsel for State of Georgia

Counsel for State of Idaho

THEODORE E. ROKITA

Attorney General

BRENNA BIRD

Attorney General

JAMES A. BARTA

Solicitor General

Indiana Attorney General’s Office

IGCS – 5th Floor

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-0709

james.barta@atg.in.gov

ERIC H. WESSAN

Solicitor General

1305 E. Walnut Street

Des Moines, Iowa 50319

(515) 823-9117

eric.wessan@ag.iowa.gov

Counsel for State of Iowa

Counsel for State of Indiana

KRIS W. KOBACH

Attorney General

RUSSELL COLEMAN

Attorney General

ANTHONY J. POWELL

Solicitor General

Office of Kansas Attorney General

120 SW 10thAvenue, 2ndFloor

Topeka, Kansas 66612

(785) 368-8539

Anthony.Powell@ag.ks.gov

MATTHEW F. KUHN

Solicitor General

JACOB M. ABRAHAMSON

Assistant Solicitor General

Office of Kentucky Attorney General

700 Capital Avenue, Suite 118

Frankfort, Kentucky 40601

(502) 696-5300

Matt.Kuhn@ky.gov

Jacob.Abrahamson@ky.gov

Counsel for State of Kansas

Counsel for Commonwealth of Kentucky

ELIZABETH B. MURRILL

Attorney General

LYNN FITCH

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Louisiana Department of Justice 1885

N. Third Street

Baton Rouge, Louisiana 70802

(225) 506-3746

aguinagab@ag.louisiana.gov

JUSTIN L. MATHENY

Deputy Solicitor General

Office of the Attorney General

P.O. Box 220

Jackson, Mississippi 39205

(601) 359-3825

justin.matheny@ago.ms.gov

Counsel for State of Louisiana

Counsel for State of Mississippi

ANDREW T. BAILEY

Attorney General

AUSTIN KNUDSEN

Attorney General

SAMUEL C. FREEDLUND

Deputy Solicitor General

Office of the Attorney General

815 Olive St., Suite 200

St. Louis, Missouri 63101

(314) 340-4869

Samuel.Freedlund@ago.mo.gov

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Montana Department of Justice

215 N. Sanders Helena, MT 59601

(406)444-2707

Christian.Corrigan@mt.gov

Counsel for State of Missouri

Counsel for State of Montana

MICHAEL T. HILGERS

Attorney General

GENTNER DRUMMOND

Attorney General

GRANT D. STROBL

Assistant Solicitor General

Nebraska Attorney General’s Office

2115 State Capitol

Lincoln, NE 68509

(402) 471-2683

grant.strobl@nebraska.gov

GARRY M. GASKINS, II

Solicitor General

JENNIFER L. LEWIS

Deputy Attorney General

Office of the Attorney General of

Oklahoma

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 521-3921

garry.gaskins@oag.ok.gov

jennifer.lewis@oag.ok.gov

Counsel for State of Nebraska

Counsel for State of Oklahoma

ALAN WILSON

Attorney General

MARTY J. JACKLEY

Attorney General

THOMAS T. HYDRICK

Assistant Deputy Solicitor General

Office of the Attorney General of South

Carolina

1000 Assembly Street

Columbia, SC 29201

(803) 734-4127

thomashydrick@scag.gov

STEVE BLAIR

Deputy Attorney General

Office of the Attorney General of South

Dakota

1302 East Highway 14, Suite 1

Pierre, SD 57501-8501

(605) 773-3215

atgservice@state.sd.us

steven.blair@state.sd.us

Counsel for State of South Carolina

Counsel for State of South Dakota

JONATHAN SKRMETTI

Attorney General

KEN PAXTON

Attorney General

WHITNEY HERMANDORFER

Director of Strategic Litigation

MATTHEW RICE

Solicitor General

Office of the Attorney General and

Reporter of Tennessee

P.O. Box 20207

Nashville, TN 37202-0207

(615) 741-7403

Whitney.Hermandorfer@ag.tn.gov

Matthew.Rice@ag.tn.gov

JOHN R. HULME

Assistant Attorney General

BRENT WEBSTER

First Assistant Attorney General

JAMES LLOYD

Deputy Attorney General for Civil

Litigation

KELLIE E. BILLINGS-RAY

Chief, Environmental Protection

Division

Office of the Texas Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

John.hulme@oag.texas.gov

Counsel for State of Tennessee

Counsel for State of Texas

SEAN REYES

Attorney General

JASON MIYARES

Attorney General

STANFORD PURSER

Solicitor General

Office of the Utah Attorney General

160 East 300 South, Fifth floor

Salt Lake City, Utah 84111

(385) 366-4334

Spurser@agutah.gov

KEVIN M. GALLAGHER

Principal Deputy Solicitor General

BRENDAN T. CHESTNUT

Deputy Solicitor General

Virginia Attorney General’s Office

202 North 9th Street

Richmond, VA 23219

(804) 786-2071

kgallagher@oag.state.va.us

bchestnut@oag.state.va.us

Counsel for State of Utah

Counsel for Commonwealth of Virginia

BRIDGET HILL

Attorney General

D. DAVID DEWALD

Deputy Attorney General

Wyoming Attorney General’s Office

Water & Natural Resources Division

109 State Capitol

Cheyenne, WY 82002

(307) 777-7895 phone

david.dewald@wyo.gov

Counsel for State of Wyoming

Dated: August 16, 2024

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.