Reply Brief — North Dakota, et al., Applicants v. Environmental Protection Agency, et al.

No. 24A180

(Related Case Nos. 24A178, 24A179, 24A186, 24A197, 24A199, 24A203)

In the Supreme Court of the United States

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

v.

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’ REPLY IN SUPPORT OF 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]

TABLE OF CONTENTS

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

ARGUMENT .................................................................................................................. 3

I.

THE RULE THREATENS APPLICANT STATES WITH IRREPARABLE HARM ................ 4

A.

Power Grids Around the Nation Are Dangerously Strained .................. 4

B.

EPA’s Determination That the Rule Will Cause Zero Power Plant

Retirements Is Not Entitled to Deference ............................................... 6

C.

The Rule Threatens to Undermine Long-Term Grid Reliability

Now, Even If Retirements Do Not Occur Immediately .......................... 8

II.

THE BALANCE OF HARMS TILTS SHARPLY IN FAVOR OF A STAY ............................ 9

III.

APPLICANTS WILL LIKELY PREVAIL ON THE MERITS .......................................... 11

A.

B.

The Rule Is Contrary to Clean Air Act Section 112(d)(6) ..................... 11

1.

The Rule Is Not “Necessary” ....................................................... 11

2.

There Are No “Developments” that Justify the Revised

Emission Standards..................................................................... 16

The Final Rule Is Arbitrary and Capricious ......................................... 18

1.

EPA’s Cost-Benefit Analysis Cannot be Defended ..................... 18

2.

EPA Failed to Adequately Consider Power Grid Impacts ......... 21

3.

The Final Rule Is Pretextual....................................................... 22

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

i

TABLE OF AUTHORITIES

Cases

Ass'n of Battery Recyclers, Inc. v. EPA,

716 F.3d 667 (D.C. Cir. 2013).................................................................................. 12

AT&T Corp. v. Iowa Utils. Board,

525 U.S. 366 (1999) ................................................................................................. 16

Burlington Truck Lines, Inc. v. United States,

371 U.S. 156 (1962) ................................................................................................. 14

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

401 U.S. 402 (1971) ................................................................................................. 23

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

785 F.3d 1 (D.C. Cir. 2015)................................................................................ 21, 22

Dep’t of Commerce v. New York,

588 U.S. 752 (2019) ..................................................................................... 23, 24, 25

GPA Midstream Ass’n v. DOT,

67 F.4th 1188 (D.C. Cir. 2023) ................................................................................ 20

League of Women Voters of United States v. Newby,

838 F.3d 1 (D.C. Cir. 2016)...................................................................................... 11

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ............................................................................................. 14

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

60 F.4th 956 (5th Cir. 2023) .................................................................................... 19

Michigan v. EPA,

576 U.S. 743 (2015) ....................................................................................... 2, 14, 19

Nat'l Ass'n for Surface Finishing v. EPA,

795 F. 3d 1 (D.C. Cir. 2015)............................................................................... 12, 18

Nken v. Holder,

556 U.S. 418 (2009) ................................................................................................... 3

Ohio v. EPA,

144 S. Ct. 2040 (2024) ......................................................................................... 6, 22

ii

Sierra Club v. Georgia Power Co.,

180 F.3d 1309 (11th Cir. 1999) ............................................................................... 10

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ..................................................................... 4, 8, 10, 21

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) ........................................................................ 10, 23, 24

Federal Statutory Authorities

42 U.S.C. § 7412(b)(3) .................................................................................................. 14

42 U.S.C. § 7412(d)(2) .................................................................................................. 12

42 U.S.C. § 7412(d)(3) .................................................................................................. 12

42 U.S.C. § 7412(d)(6) .................................................. 11, 12, 13, 14, 15, 17, 18, 19, 21

42 U.S.C. § 7412(f)(2) ................................................................................................... 15

42 U.S.C. § 7412(n)(1) .................................................................................................. 14

Federal Rules and Regulations

69 Fed. Reg. 48338 (Aug. 9, 2004) ............................................................................... 15

70 Fed. Reg. 19992 (Apr. 15, 2005) ....................................................................... 13, 17

71 Fed. Reg. 76603 (Dec. 21, 2006) ............................................................................. 15

77 Fed. Reg. 9304 (Feb. 16, 2012) ........................................................................ 12, 19

89 Fed. Reg. 38508 (May 7, 2024) ............................................. 6, 10, 17, 19, 20, 21, 22

Other Authorities

American Heritage Dictionary (5th ed. 2011) ............................................................ 17

iii

INTRODUCTION

Twenty-three states and many other Petitioners have challenged this

nationwide Mercury and Air Toxics (MATS) Rule, which ratchets down certain

hazardous air pollutant (HAP) emission levels for coal-fired power plants by 66-70%.

See Nos. 24-1119; 24-1154; 24-1179; 24-1184; 24-1190; 24-1194; 24-1201; 24-1217; 241223 (D.C. Circuit). By EPA’s own calculations (which Applicants contend are far too

low), the Rule will, at minimum, impose costs of nearly a billion dollars. And it will

impose those costs with no demonstrable or measurable benefit to public health or

the environment from the mandated reduction in HAP emissions.

Three years is not a long time when it comes to making power plant investment

decisions. And while the parties litigate the Rule’s legal and factual deficiencies, the

clock is ticking for power plants to make the investment decisions required to either

come into compliance with the Rule, or to commit to retirement tracks if they

determine compliance is not technically feasible (or not feasible in any way that

allows them to remain economically viable). In the absence of a stay, decisions need

to be made now. And those decisions will not be reversible if Applicants ultimately

prevail on the merits. In the best-case scenario, forcing those compliance decisions

to be made now will mean higher electricity prices for Applicant States and their

citizens; in the worst-case scenario, it risks destabilizing the long-term reliability of

the power grids upon which Applicant States and their citizens rely.

In their briefs in opposition to a stay, Respondents engage in a lot of hand

waving, asserting that the costs of the Rule are relatively small and that there is

nothing to worry about because the EPA-made power grid model concludes that the

1

EPA Rule will have no impact on power grid reliability. But any model is only as

good as its inputs. And here, states, power plants, and grid regulators have all told

EPA that its inputs and assumptions are wrong.

Despite claiming that this action is not a redux of Michigan v. EPA, the legacy

of that case looms like an inescapable shadow. There, like here, Petitioners alleged

that EPA promulgated a MATS Rule without properly considering its costs and

benefits. There, like here, EPA promised the country that the Rule would have less

impact on the power grid than power plants and grid regulators warned it would (only

for history to prove EPA profoundly wrong).

And there, like here, power plant

compliance and retirement decisions needed to be made while the merits of the

dispute were still being adjudicated—resulting in billions expended and numerous

plant closures from a Rule that was ultimately invalidated by this Court.

The stay applications filed with this Court identified numerous legal

infirmities with the Rule. Among other issues, the Rule disregards the statutory

command that revising emission standards under Section 112(d)(6) of the Clean Air

Act must be “necessary” and which, in context, can only mean that doing so achieves

some relevant benefit to public health or the environment. The Rule also stretches

the term “development” beyond what the statute and common sense allow. And it is

arbitrary and capricious multiple times over, including for its indefensible costbenefit analysis and its failure to meaningfully engage with the many comments

putting EPA on notice that the assumptions underlying its grid reliability

determination are fundamentally flawed.

2

But beyond the likelihood of success, this is a case where the equities strongly

tilt for maintaining the status quo while the merits are heard. If Applicants are

wrong on the merits, the impact of a temporary stay is that public health and the

environment will continue to remain more-than-sufficiently protected from any

meaningful risk from the relevant HAP emissions. EPA is unable to demonstrate

that imposing the Rule would cause the already-ample margin of safety to become

larger in any meaningful way, other than blithely proclaiming that mandating fewer

emissions must ipso facto result in some sort of unquantifiable health benefit.

Conversely, if EPA is wrong on the merits, prices for electricity will increase, and

numerous state and grid regulators from around the country have attested to the

significant likelihood that long-term grid reliability will be threatened.

The Court should consequently stay the Rule until it resolves any petition for

certiorari. The duration for any such stay will potentially be reduced given that the

D.C. Circuit has scheduled this case for expedited briefing, with final briefs to be

submitted on December 10, 2024. However, that schedule does not obviate the need

for this Court to preserve the status quo while the merits are resolved.

ARGUMENT

“The authority to hold an order [or rule] in abeyance pending review allows an

appellate court to act responsibly.” Nken v. Holder, 556 U.S. 418, 427 (2009). And

here, all the relevant factors confirm that this Court should stay the Rule to allow for

careful review of a regulation that power plants and grid regulators attest will

threaten the long-term reliability of our power grids, for no quantifiable benefit.

3

I.

THE RULE THREATENS APPLICANT STATES WITH IRREPARABLE HARM

Respondents do not dispute that undermining the long-term reliability of our

nation’s power grids would be an irreparable harm that weighs in favor of a stay.

Instead, they summarily assert “[t]here is no sound basis to think that those harms

will arise … given EPA’s determination that no coal plants will retire as a result of

the rule.” EPA Br. at 39. But “EPA has no expertise on grid reliability.” Texas v.

EPA, 829 F.3d 405, 432 (5th Cir. 2016). And Applicant States have proffered an array

of declarations attesting that our nation’s power grids are already operating on

dangerously thin margins of dispatchable power, and that the assumptions upon

which EPA relied to determine that the Rule would result in no power plant closures

were fundamentally flawed. Contrary to EPA’s conclusory statements otherwise,

there is a “basis” to think such harms will arise.

A.

Power Grids Around the Nation Are Dangerously Strained

The unfortunate reality is that, in only a few years’ time, the demand for

electricity is projected to exceed the supply of dispatchable power across large swaths

of our nation, even during normal weather conditions. And for much of the rest of

the country, the demand for electricity is projected to exceed the supply of

dispatchable power during severe weather events, when it is needed the most. To

illustrate, a graphic from the North American Electric Reliability Corporation’s

(NERC) 2023 Long-Term Reliability Assessment is perhaps worth a thousand words.

4

App. 596a-597a (Vigesaa Decl. ¶17).

In the above graphic, regions in red are projected to have a shortage of

dispatchable generation even during normal weather as early as 2028. And areas in

orange are projected to have shortages during severe weather events. App. 596a597a (Vigesaa Decl. ¶17). These are not historically normal projections, and the

reason is not a mystery. App. 596a (Vigesaa Decl. ¶16). As one regional transmission

organization has explained, “[w]idespread retirements of dispatchable resources,

lower reserve margins, … and increased reliance on weather-dependent renewables

and emergency-only resources have altered the region’s historic risk profile, creating

risks … that rarely posed challenges in the past.” App. 597a-598a (Vigesaa Decl. ¶18)

(quoting MISO’s Response to the Reliability Imperative (2024)).

Rather than grappling with this reality, EPA claims that its conclusions on

grid reliability should be trusted for this iteration of the MATS Rule because its

5

promulgation of the 2012 MATS Rule did not cause power grid failures. See EPA Br.

at 30-31; 89 Fed. Reg. 38508, 38526 (May 7, 2024). But pretending like the grid has

the resiliency that it did in 2012 is to ignore a fundamental aspect of the problem.

App. 595a-596a (Vigesaa Decl. ¶¶11-17); App. 282a (Lane Decl. ¶¶12-13); App. 272a273a (Huston Decl. ¶¶8-14); see also Ohio v. EPA, 144 S. Ct. 2040, 2051 (2024)

(citation omitted) (agency cannot ignore an important aspect of the problem).

B.

EPA’s Determination That the Rule Will Cause Zero Power Plant

Retirements Is Not Entitled to Deference

EPA bases its conclusion that the Final Rule will have no impact on grid

reliability solely on its own modeling. EPA Br. at 28-29; 89 Fed. Reg. at 38526.

However, numerous commenters and declarants have attested that the

assumptions upon which EPA relied for its model were fundamentally flawed. See

States’ Stay App. at 16-17; see also, e.g., 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. 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”); App. 627a-633a (Cichanowicz Report at 39-44) (outlining flaws

in EPA’s modeling, including erroneously assuming retirement of 55 units in

“baseline” analysis not planned to retire, and understating compliance impacts).

And State and grid regulators from around the country have attested that if

the Rule forces any coal-fired power plants to retire, the effect on long-term power

6

grid reliability will be significant. See States’ Stay App. at 16.

EPA never

meaningfully grapples with this information in either the Rule or in its Response

Brief, simply asserting, and then re-asserting, that it concluded no power plants will

close as a result of the Rule, and that its conclusion should be trusted. However, as

Applicants noted in their stay applications, the Court should be hesitant to trust

EPA’s contested grid reliability conclusions, given the magnitude by which it was off

the last time it promulgated a MATS Rule. See States’ Stay App. at 17-18.1

EPA also denies the Rule poses any threat to grid reliability by making vague

claims that EPA consulted with other federal agencies about grid reliability. EPA

Br. at 31. However, as Applicants’ stay application noted, the only support EPA cites

for its supposed consultation with other agencies on grid reliability is a generic

Memorandum of Understanding with the Department of Energy, which EPA admits

is “not linked to any one regulatory effort or final action.” App. 676a-677a (Response

to Comments at 156-57). There is nothing in the record to suggest that EPA consulted

with FERC, NERC, or any similar entity with grid reliability expertise on the

potential grid impacts of this Rule.

1 EPA acknowledges that in the wake of its 2012 MATS Rule, “more coal-fired units

eventually retired than EPA had predicted.” EPA Br. at 30. EPA then tries to shift

the blame for those retirements to unrelated market forces. Id. However, if there

was a chorus of warnings that the rule would force many retirements, then there were

many such retirements, and then virtually every power plant that retired attributed

its decision to retire, at least in part, to the rule, then it does not take an advanced

degree in economics to conclude the rule likely had something to do with the

retirements. See App. 644a (NACCO Cmts. at 17).

7

C.

The Rule Threatens to Undermine Long-Term Grid Reliability

Now, Even If Retirements Do Not Occur Immediately

EPA also contends that there is no likelihood that threats to the power grids

“will materialize during the pendency of expedited judicial review.” EPA Br. at 39.

But this claim too is mistaken.

If the D.C. Circuit holds oral argument and renders a decision as soon as

possible after the final briefs are submitted on December 10, 2024, nearly a third of

the three-year compliance period will have already elapsed. And assuming certiorari

is sought thereafter, several more months are likely to pass before the merits are

ultimately resolved. But electric utility steam generating units (EGUs) cannot wait

even until the end of the D.C. Circuit briefing period to make their compliance or

retirement decisions.

Consequently, as power plants, grid operators, and state

regulators have made clear, the threats to grid reliability will occur well before the

end of the three-year implementation period. App. 609a-611a (Bohrer Decl. ¶¶2428); 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). Compliance or retirement decisions made now will not

be reversible one or two years from now when a decision on the merits is reached.

And EPA’s defense that those power plants may not close for a couple of years is

legally irrelevant when the immediate impact of failing to stay the Rule now is to

irreversibly set in motion such potential plant closures in a few years’ time.

Not once does EPA cite to, much less grapple with, Texas v. EPA, the case most

directly analogous to the circumstances here. 829 F.3d 405 (5th Cir. 2016). The Texas

8

petitioners raised the same kinds of harms that Applicants here have raised, and the

Texas court clearly explained why those harms warrant a stay. Id. at 434 (“Even

setting aside the costs of compliance for the power company petitioners, if the Final

Rule causes plant closures, the threat of grid instability and potential brownouts

alone constitute irreparable injury…”). That decision is persuasive authority here,

and EPA’s refusal to address it is notable.

Moreover, even assuming arguendo that every power plant is able to come into

compliance with the Rule, EPA still fundamentally misunderstands the effect that

simply coming into compliance will have on the power grids. Implementing and

installing the necessary compliance measures will require multiple plants within

regional grids to spend extensive amounts of time offline, threatening the state and

regional grids that “are already operating on dangerously thin margins of

dispatchable power.” App. 609a-610a (Bohrer Decl. ¶¶22-23, 26-27) (implementation

of new control technologies would concentrate “danger of an unstable, unreliable grid

on North Dakota and its residents”).

In short, the specter of Applicant States suffering significant and irreversible

injury to their power grids from implementation of the Rule is real and it is imminent.

The Court can prevent those harms by preserving the status quo while the merits of

this EPA rulemaking are fully adjudicated.

II.

THE BALANCE OF HARMS TILTS SHARPLY IN FAVOR OF A STAY

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

As discussed supra, the threats to power grid reliability in the absence of a stay are

significant, and the public interest strongly favors preserving the status quo when

9

the public’s access to affordable electricity is threatened. Texas, 829 F.3d at 435; 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”).

Conversely, the status quo already protects public health with an “ample

margin of safety,” e.g., 89 Fed. Reg. at 38508, and EPA is unable to demonstrate that

implementing the Rule would result in any actual increase for that already-large

margin of safety, aside from offering a hand wave that less emissions must ipso facto

increase public health outcomes in some unquantifiable way. EPA Opp. Br. at 4-5.2

Unable to point to any demonstrable public health benefits to be achieved from

the Rule’s HAP emission reductions, EPA claims that the public interest will be

served by denying a stay because it argues the Rule is lawful, and granting a stay

would “deny the public the benefits that Congress sought to confer.” EPA Br. at 39

2 Since the original MATS rule was promulgated, there has been a 90% decrease in

mercury emissions from coal-fired EGUs. 89 Fed. Reg. at 38537. And while some

Respondents anecdotally discuss the dangers of mercury exposure (e.g., State

Respondents Br. at 28), such anecdotes cannot overcome the fact that EPA is unable

to demonstrate any actual health benefit to be achieved from the further reductions

in HAP emissions that are mandated by the Rule. Even for subsistence fishers that

live in the vicinity of coal-fired power plants, who in the past have been

disproportionately harmed by mercury exposure, and whom Respondents gesture

towards as benefiting from the Rule (see State Respondents Br. at 31), EPA

acknowledges that the level of exposure is now “well below the reference dose” for

causing adverse effects from mercury exposure. 89 Fed. Reg. at 38541.

10

(citation omitted). But setting aside the fact that EPA is unable to demonstrate how

implementing the Rule’s HAP emissions reductions would bestow any demonstrable

public health or environmental benefits, EPA’s argument on this last point is simply

a contention that because it believes it will prevail on the merits it should also prevail

on the equities. Applicants of course dispute that EPA will prevail on the merits, and

there conversely is “no public interest in the perpetuation of unlawful agency action.”

League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).

III.

APPLICANTS WILL LIKELY PREVAIL ON THE MERITS

A.

The Rule Is Contrary to Clean Air Act Section 112(d)(6)

1. The Rule Is Not “Necessary”

With regard to Section 112(d)(6)’s command that EPA revise emission

standards under that section only as “necessary,” EPA’s brief attempts to contort the

statute to fit the Rule’s contours, rather than making the Rule fit into the statute.

As its first maneuver to deflect from the statutory requirement to establish

that the Rule is “necessary,” EPA asserts (at least 24 separate times) that HAP

emission standards can (and perhaps must) be ratcheted down under Section

112(d)(6) every time a lower emissions limit is “achievable.” EPA Br. at 3-4, 12, 1517, 19-20, 22-25. But that is a fundamental mischaracterization of the statute.

When regulating a source’s HAP emissions for the first time, Section 112

requires EPA to base the initial emission standards on the “maximum achievable

control technology” (MACT)—in other words, the best emission control technology

that provides the lowest achievable rate of HAP emissions and is available at the time

11

of the rulemaking. 42 U.S.C. § 7412(d)(2), (3). EPA set initial MACT standards for

coal- and oil-fired EGUs in 2012. 77 Fed. Reg. 9304 (Feb. 16, 2012).

Whether an emissions limit is “achievable” is only contemplated by the statute

when setting new emission limits under Sections 112(d)(2) and (d)(3). In contrast,

when EPA is revising an existing emissions limit under Section 112(d)(6), the statute

requires EPA to conduct an entirely different analysis—one that uses the term

“necessary” and does not use the term “achievable” in any way whatsoever. This

recurring review is known as a “Technology Review” and, despite EPA’s contentions

to the contrary, is not based on the “achievability” criteria that is used when

calculating the initial MACT standard. Id.

EPA’s importation of an “achievable” standard into Section 112(d)(6) is

contrary to the statutory scheme and would permit (or perhaps require) the agency

to re-calculate the MACT floor every time that it conducts a Technology Review. The

D.C. Circuit has expressly rejected such a reading of the statute several times. See

Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 673-74 (D.C. Cir. 2013) (rejecting

argument that when EPA revises emissions standards under Section112(d)(6), it

must recalculate MACT in accordance with Sections 112(d)(2) and (d)(3)); Nat’l Ass’n

for Surface Finishing v. EPA, 795 F. 3d 1, 7-9 (D.C. Cir. 2015) (similar).

And that distinction makes sense in real life; it is not an “oddity.” Cf. EPA Br.

at 20. Plants need to build in a compliance margin, and if EPA were allowed (or

required) to apply the “achievable” test every time that it undertook a Section

112(d)(6) technology review, it would be able to drive any disfavored source out of

12

business by simply using past compliance to tighten the noose, until a plant is unable

to comply at all times. EPA itself has previously acknowledged that Section 112(d)(6)

cannot be abused in that way. E.g., 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…”).

If EPA’s interpretation of Section 112(d)(6) were correct, the statute would

read: “The Administrator shall review, and revise as achievable (taking into account

developments in practices, processes, and control technologies), emission standards

promulgated under this section no less often than every 8 years.” But that is not

what Section 112(d)(6) says. “Necessary” and “achievable” are very different words,

and EPA cannot simply swap its preferred word into the relevant provision.

For its second maneuver to avoid the fact that the Rule at issue cannot

reasonably be deemed “necessary,” EPA takes the position that a Section 112(d)(6)

rule can be “necessary” even when it does not achieve any demonstrable public health

or environmental benefit. EPA Br. at 15-16.

As an initial matter, the statement in EPA’s brief (EPA Br. at 14) that the Rule

“correctly determined” that a revised emission standard is deemed “necessary” only

by looking at technological developments and ignoring the existence (or nonexistence) of public health benefits is a post hoc conclusion. Nowhere in the Rule

itself does EPA make an express determination that this Rule was “necessary” under

any reading of Section 112(d)(6). Accordingly, EPA’s litigation argument that it

13

determined the Rule was “necessary” is post hoc rationalization that should not be

considered by the Court to justify the Rule. Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate counsel’s

post hoc rationalizations for agency action”).

But regardless, EPA’s interpretation of “necessary” to mean it can revise HAP

emission standards under Section 112(d)(6) even when doing so will result in no

demonstrable benefit from the mandated reduction in HAP emissions is not a

reasonable interpretation of the statute, let alone the “best” interpretation of it.

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2247 (2024).

As Applicants explained in their stay application (see States’ Stay App. at 22),

the meaning of the term “necessary” is determined by context, and in the context of

Section 112, the clear purpose of the statute is to protect public health and the

environment from the 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”).

This mandate is especially clear for power plants, which are treated

“differently from other sources for purposes of the hazardous-air-pollutants program,”

Michigan v. EPA, 576 U.S. 743, 751 (2015), and which can only be regulated under

Section 112 after “a study of the hazards to public health reasonably anticipated to

occur as a result of [their] emissions.” 42 U.S.C. § 7412(n)(1)(A) (emphasis added).

EPA itself has previously understood that whether a rule is “necessary” is

inherently intertwined with whether the rule achieves a public health benefit from

14

HAP emission reductions, because that is the goal of the statute. E.g., 69 Fed. Reg.

48338, 48351 (Aug. 9, 2004) (where a standard already provides “an ample margin of

safety to protect public health and prevent adverse effects, one can reasonably

question whether further reviews of technological capability are ‘necessary’”); see

also, e.g., 71 Fed. Reg. 76603, 76606 (Dec. 21, 2006) (considering the “effect in

reducing public health risk” in determining that it was not “necessary” to revise HAP

emission standards).

EPA is mistaken in its argument that interpreting the term “necessary” to

require at least some demonstrable benefit to public health or the environment from

HAP emissions reductions “conflates the technology-based approach in subsection (d)

with the separate legacy risk-based approach in subsection (f).” Cf. EPA Br. at 17.

To the contrary, it is perfectly sensible to read the two provisions together

while still understanding Section 112(d)(6)’s use of the term “necessary” requires at

least some showing of public health benefit from revised HAP emission standard.

Section 112(f)(2) directs the agency to tighten the standards if the initial MACT

standard did not achieve an adequate margin of safety. See 42 U.S.C. § 7412(f)(2).

And then Section 112(d)(6) allows the agency to further tighten the standards every

eight years when there are “developments” that would justify doing so—but the

command that such revisions also be “necessary” still requires the agency to

demonstrate at least some relevant public health benefit for doing so. Contrary to

EPA’s suggestion, Applicant States do not contend that once an adequate margin of

safety is achieved, further revisions of the emission standard under Section 112(d)(6)

15

can never be “necessary.” Cf. EPA Br. at 20. Instead, Applicant States merely

contend that it order to be “necessary” such a revision must be able to at least

demonstrate some expansion of that margin of safety—for example, by dropping the

lifetime risk of cancer for the person most exposed from 10-in-a-million to 9-in-amillion. That would be some form of relevant public health benefit. But EPA made

no such demonstration for this Rule.

Consequently, EPA’s inability to demonstrate any public health or

environmental benefit from Rule’s mandated reduction in HAP emissions means that

it cannot be reasonably interpreted as “necessary.” AT&T Corp. v. Iowa Utils. Bd.,

525 U.S. 366, 388 (1999) (statutory direction that the FCC consider whether an action

is “necessary” required the FCC to apply a standard “related to the goals of the Act”).

2. There Are No “Developments” that Justify the Revised

Emission Standards

EPA’s brief claims that in promulgating this Rule it identified “developments”

which “improve how effectively coal-fired units can reduce emissions of hazardous air

pollutants. EPA Br. at 21. But in the Rule itself, what EPA actually claimed as

“developments” were that (a) many coal-fired plants have been able to comply with

the prior emission standards with (b) more cost efficiency than assumed during

promulgation of the original MATS Rule:

Proposed Rule

 “Although our review of fPM compliance data for coal-fired EGUs

indicated no new practices, processes, or control technologies for non-Hg

metal HAP, it revealed two important developments that inform the

EPA’s decision to propose revisions to the standard. First, it revealed

that most existing coal-fired EGUs are reporting fPM well below the

current fPM emission limit of 3.0E-02lb/MMBtu. . . Second, it revealed

that the fleet is achieving these performance levels at lower costs than

16

assumed during promulgation of the original MATS fPM emission

limit.” 88 Fed. Reg. at 24868 (emphasis added).

Final Rule

 “As described in the proposal preamble, the Agency conducted a review

of the 2020 Technology review pursuant to CAA section 112(d)(6), which

focused on identifying and evaluating developments in practices,

processes, and control technologies for the emission sources in the source

categories that occurred since promulgation of the 2012 MATS Final

Rule. Based on that review, the EPA found 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 (emphasis added).

Cost-efficient compliance with existing standards is not a “development” under

Section 112(d)(6). See States’ Stay App. at 26-27. Interpreting the term to mean

achieving compliance with the existing standards would, again, be an interpretation

that allows EPA to continually ratchet down a standard until regulated sources can

no longer consistently meet them. And that is an interpretation of Section 112(d)(6)

which EPA has rejected in the past. See 70 Fed. Reg. at 20008.

EPA contends that Section 112(d)(6)’s use of the term “developments”

encompasses the sort of “incremental improvements” that EPA identifies here. EPA

Br. at 20-21, 25. But if Congress wanted to say “improvements,” it could have said

“improvements.” Instead, Congress said “developments,” and the best interpretation

of the term “development” in the context of Section 112(d)(6) is that it must mean

some considerable change or evolution in control technology or process that is

correlated to a revision of the emission standard. E.g., Am. Heritage Dictionary (5th

ed. 2011), Development (“A significant event, occurrence, or change”). Even EPA has

agreed with this definition in the past. See Final Brief for Respondents EPA and

17

Gina McCarthy, Nat’l Ass’n for Surface Finishing v. EPA, No. 12-1459, Entry 1514442

at 40-41 (D.C. Cir. Sep. 29, 2014) (describing a “development” as among other things,

a “significant event, occurrence, or change”).

Finally, EPA accuses Applicants of “nitpicking” EPA’s alleged “development”

of increased filter durability when they observed that any improvement in

“durability” could not be a development warranting further ratcheting down the

standards when the standards already expressly assume the filter will never break

to begin with. EPA Br. at 22. But EPA’s response is simply to whistle by the

graveyard, stating in the next sentence that increased durability lowers the wear and

tear which impairs efficiency. Id. But that sentence is non-responsive at best. And

given that the standards already in place already assume (counterfactually) that the

filters never fail, any decrease in “wear and tear” from increased durability cannot be

a “development” that warrants ratcheting further ratcheting down the standard.

States’ Stay App. at 29-30. The same goes for the use of brominated powder to control

mercury emissions, which has not changed in the last ten years. Id.

B.

The Final Rule Is Arbitrary and Capricious

1.

EPA’s Cost-Benefit Analysis Cannot be Defended

As discussed supra, this Rule cannot reasonably be deemed “necessary” under

Section 112(d)(6) when EPA can demonstrate no benefit to public health or the

environment from the mandated reduction in HAP emissions. But even if EPA were

able to demonstrate some relevant benefit, or even if EPA’s hand wave that less

emissions must equate to some unquantified benefits was sufficient, the Rule should

still be struck down because its costs so grossly outweigh any relevant benefit.

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EPA is therefore mistaken in its contention that the cost-benefit problems with

the Rule “simply restate[] the argument that the revised standards are not

‘necessary.’” EPA Br. at 24. EPA is also mistaken in its contention that so long as

the agency makes a conclusory statement that the benefits of the Rule outweigh the

costs, any “disagreement with that balancing does not warrant a stay.” Id. If it is

arbitrary and capricious for an agency to impose significant economic costs “for a few

dollars” of benefit, Michigan, 576 U.S. at 752, then it is even more so where an agency

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 does not dispute that rulemaking under Section 112(d)(6) requires

appropriate consideration of cost and benefit. See 89 Fed. Reg. at 38553 (claiming

that “when all of the costs and benefits are considered (including nonmonetized

benefits), this final rule is a worthwhile exercise of” the agency’s authority). However,

as discussed supra, the relevant demonstrated health benefits of the Rule are zero.

To excuse its inability or refusal to quantify any relevant public health benefits of

this Rule, EPA claims that the public health benefits of the Rule’s mandated

reduction in HAP emissions escape quantification. See EPA Br. at 27-28. But there

are at least two problems with that statement.

For one, quantifying the public health benefits of reducing HAP emissions is

entirely possible. EPA did just that the last time it promulgated a MATS Rule. 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). Given that this Rule will only

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reduce net mercury emissions by an additional 900 to 1,000 pounds—a tiny fraction

of the 20 tons which yielded only $4-6 million in benefits last time—EPA’s inability

to quantify the relevant benefits of the Rule appears to stem more from the minuscule

size of those benefits, rather than their inherent nature. See 89 Fed. Reg. at 38512.

And for another, EPA’s claim that the mandated reduction in HAP emissions

yields some sort of unquantifiable benefit also runs headlong into the fact that EPA

cannot demonstrate how, in any way, the already tiny 0.344-in-a-million risk of

adverse health effects will be further reduced by the mandated reduction in HAP

emissions. EPA does not claim, for example, that risk will be reduced to some value

below 0.344-in-a-million.3 So at the end of the day, all we are left with is EPA’s

assurance that there is some relevant benefit to the Rule, though it can’t quantify it,

and it can’t explain how it reduces the risk of adverse health effects. All we can do is

trust EPA that it is worth the nearly $1 billion price tag (according to EPA’s math).4

Cf. 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.”).

3 To the contrary, while EPA found that reducing HAP emissions under the Rule

would reduce exposure, it did not find that reducing HAP emissions would cause

health benefits. See 89 Fed. Reg. at 38511. (EPA “expects that emissions reductions

under the final rulemaking will result in reduced exposure to Hg and non-Hg HAP

metals. The EPA also projects health benefits due to improvements in particulate

matter…(PM2.5) and ozone and climate benefits from reductions in carbon dioxide

emissions.”).

4 Like the Respondent States, EPA also throws out a list of health disorders that can

be caused by HAP exposure. See EPA Br. at 27. But a list of disorders is meaningless

if EPA cannot demonstrate that the Rule’s mandated reduction in HAP emissions

will improve anyone’s chances of not being afflicted by such disorders.

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Unable to point to relevant benefits, EPA pivots to pointing to irrelevant

ones—i.e., alleged ancillary “climate” benefits. 89 Fed. Reg. at 38512. Applicants

explained why such benefits cannot drive a Section 112(d)(6) rulemaking, see States’

Stay App. at 23-24, 31-32, and EPA does not dispute the point (claiming it calculated

the “climate” benefits to comply with an executive order, EPA Br. at 27). But even

considering those alleged ancillary benefits, the costs of the Rule still outweigh the

alleged benefits by over $400 million.

In short, if cost-benefit analysis is to impose any constraints on reasoned

decision-making at all, this Rule simply cannot survive it.

2.

EPA Failed to Adequately Consider Power Grid Impacts

For rulemaking under Section 112, “‘[c]osts’ can mean many different things,

including the cost associated with increased risk” of grid unreliability. Del. Dep’t of

Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 18 (D.C. Cir. 2015). But “EPA has no

expertise on grid reliability.” Texas v. EPA, 829 F.3d. at 432. And due to that lack of

expertise on grid reliability, “EPA must support its arguments [regarding grid

reliability] more thoroughly than in those areas in which it has considerable expertise

and knowledge.” Id

However, as Applicants noted in their stay applications, numerous

commenters warned EPA that its assumptions regarding power grid reliability,

including its assumption that no power plants were likely to close as a result of the

Rule, were flawed. See States’ Stay App. at 34. Nonetheless, EPA’s response in this

Court, just as it responded to commenters, is simply to push those concerns aside,

assert that the Rule cannot conceivably cause grid reliability issues, and point to its

21

“well-accepted, peer-reviewed” model. EPA Br. at 28-29. But EPA “cannot simply

ignore ‘an important aspect of the problem.’” Ohio v. EPA, 144 S. Ct. at 2051 (citation

omitted); see also Del. Dep’t of Nat. Res., 785 F.3d at 14 (holding that “EPA should

have, but did not, respond properly to their well-founded concerns” about grid

reliability).

There is nothing in the record to suggest that EPA meaningfully

considered input from the current grid operators or power plants in its grid reliability

modeling inputs, or that it changed those inputs in response to comments.

Notably, EPA doubles down on the Rule’s assertion that it does not need to

undertake any further analysis of grid reliability because if EPA ends up being wrong,

and the Rule causes coal-fired EGUs to no longer be commercially viable, State and

regional regulators would be able to use temporary emergency powers to prevent

them from retiring. EPA Br. at 29-30; 89 Fed. Reg. at 38526. EPA’s reliance on State

and regional regulators being able to use emergency stopgap powers to prevent the

Rule from breaking the grid is emblematic of the dismissive way EPA treated grid

reliability concerns throughout the notice and comment process. But “EPA [cannot]

excuse its inadequate responses by passing the entire issue off onto a different

agency.” Del. Dep’t of Nat. Res., 785 F.3d at 16.

3.

The Final Rule Is Pretextual

Finally, as the Applicant States’ stay application detailed, there is considerable

evidence that EPA engaged in this rulemaking as part of a regulatory effort to impose

retirement-inducing costs on coal-fired power plants in order to force a nationwide

transition away from coal for putative climate change reasons. See States’ Stay App.

at 37-40.

That evidence includes multiple public statements from the EPA

22

Administrator where he readily made it known that EPA would attempt to get around

this Court’s decision in West Virginia v. EPA by using “health-based” regulations,

including MATS, to achieve climate change-related policy goals. It also includes

materials produced through FOIA indicating that EPA briefed the White House

Climate Office on a suite of rulemaking authorities that EPA could use against the

power sector, including the MATS Rule.

To defend its actions in light of the Administrator’s repeated statements, EPA

first invokes the presumption of regularity, and asserts that the agency’s explanation

for its decision to promulgate this Rule—to benefit public health from reducing HAP

emissions—is entitled to be taken at face value and not subject to judicial scrutiny.

EPA Br. at 34-35. This Court has explained that only in “unusual circumstances”

will courts examine whether any agency’s decision-making process for promulgating

a rule matches its stated reason. Dep’t of Commerce v. New York, 588 U.S. 752, 785

(2019). Yet this is such a case given the agency’s own record and public statements

demonstrating that its basis for promulgating the Rule is not aligned with the reasons

given in the Rule. As such, EPA’s contention that the Court cannot consider extrarecord evidence like press statements (EPA Br. at 35), is mistaken. See Dep’t of

Commerce, 588 U.S at 782 (evaluating “pretext in light of all the evidence in the

record before the court, including the extra-record discovery”). Moreover, this is not

a case where the Court must risk substantial intrusion into the Administrator’s

“mental processes,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420

(1971), as his public statements already lay bare those motivations.

23

And secondly, EPA claims that the Administrator’s statements and other

extra-record materials don’t evidence pretext, as “even if EPA had both hazardousair-pollution and climate-change goals in mind when promulgating the 2024 rule,”

that would not be sufficient to establish pretext. EPA Br. at 35. But while it is true

that courts generally “may not set aside an agency’s policymaking decision solely

because it might have been influenced by political considerations or prompted by an

Administration’s priorities,” Dep’t of Commerce v. New York, 588 U.S. at 781, there

cannot be a “mismatch between the decision the [agency] made and the rationale [it]

provided.” For example, in Dep’t of Commerce, this Court concluded that the agency

“considered the relevant factors, weighed risks and benefits, and articulated a

satisfactory explanation for [its] decision” to put a citizenship question on the census.

Id. at 775. Nonetheless, extra-record evidence indicated that the Secretary had a preestablished conclusion, instructed his staff to make it happen, and only adopted the

stated justification “late in the process.” Id. at 783.

That also seems to be the case here, where available evidence indicates the

Administrator announced an intention to use a variety of rulemaking authorities to

get around this Court’s West Virginia v. EPA decision, the MATS rule was developed

as part of a “suite” of rules to impose retirement-inducing costs on coal-fired power

plants, and then the agency ultimately justified its action by claiming the Rule was

promulgated to better protect public health from HAP emissions (even though it can

neither demonstrate nor quantify any such benefit).

24

Moreover, while Dep’t of Commerce involved a court ordering discovery into the

agency’s decision-making process to uncover the pretext, here the “incongruent”

explanation for the agency’s action is publicly available. EPA said it would use “bread

and butter” health-based regulations like MATS to address criteria pollutants and

climate change. And then it did so, while nonetheless claiming that the Rule was

instead being promulgated to better protect against HAP emissions (which it doesn’t

do). Pretext thus explains why EPA is using rulemaking authority for HAPs to

impose nearly a billion dollars in additional costs on a disfavored source of energy

with no demonstrable benefit from the Rule’s mandated reduction in HAP emissions,

and Applicants are likely to prevail on their claim.

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

25

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

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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

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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

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ERIC H. WESSAN

Solicitor General

1305 E. Walnut Street

Des Moines, Iowa 50319

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Counsel for State of Iowa

Counsel for State of Indiana

27

KRIS W. KOBACH

Attorney General

RUSSELL COLEMAN

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ANTHONY J. POWELL

Solicitor General

Office of Kansas Attorney General

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MATTHEW F. KUHN

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JACOB M. ABRAHAMSON

Assistant Solicitor General

Office of Kentucky Attorney General

700 Capital Avenue, Suite 118

Frankfort, Kentucky 40601

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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

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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

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Attorney General

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Deputy Solicitor General

Office of the Attorney General

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CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Montana Department of Justice

215 N. Sanders Helena, MT 59601

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Christian.Corrigan@mt.gov

Counsel for State of Missouri

Counsel for State of Montana

28

MICHAEL T. HILGERS

Attorney General

GENTNER DRUMMOND

Attorney General

ERIC J. HAMILTON

Solicitor General

Nebraska Attorney General’s Office

2115 State Capitol

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eric.hamilton@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

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STEVE BLAIR

Deputy Attorney General

Office of the Attorney General of South

Dakota

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Counsel for State of South Carolina

Counsel for State of South Dakota

29

JONATHAN SKRMETTI

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KEN PAXTON

Attorney General

WHITNEY HERMANDORFER

Director of Strategic Litigation

MATTHEW RICE

Solicitor General

Office of the Attorney General and

Reporter of Tennessee

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Nashville, TN 37202-0207

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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

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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

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kgallagher@oag.state.va.us

bchestnut@oag.state.va.us

Counsel for State of Utah

Counsel for Commonwealth of Virginia

30

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

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Counsel for State of Wyoming

Dated: September 18, 2024

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