Reply Brief — America's Power, et al., Applicants v. Environmental Protection Agency, et al.

No. 24A199

In the Supreme Court of the United States

____________

AMERICA’S POWER AND ELECTRIC GENERATORS MATS COALITION,

Applicants,

v.

ENVIRONMENTAL PROTECTION AGENCY and MICHAEL S. REGAN, Administrator,

United States Environmental Protection Agency,

Respondents.

________________________

REPLY IN SUPPORT OF EMERGENCY APPLICATION

FOR IMMEDIATE STAY OF FINAL AGENCY ACTION

PENDING DISPOSITION OF PETITION FOR REVIEW

________________________

To the Honorable John G. Roberts, Jr.,

Chief Justice of the Supreme Court of the United States and Circuit Justice for

the District of Columbia Circuit

________________________

Jonathan Y. Ellis

Counsel of Record

Makram B. Jaber

Allison D. Wood

Aaron M. Flynn

MCGUIREWOODS LLP

888 16th Street NW, Suite 500

Black Lives Matter Plaza

Washington, DC 20006

(202) 857-2416

Counsel for Applicants

September 18, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................... ii

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

ARGUMENT .................................................................................................................. 2

I.

Applicants Are Likely to Prevail on the Merits. ................................................ 2

A.

Imposing Exorbitant Costs for Trivial Benefits Is Irrational and

Unlawful Under Michigan. ......................................................................... 2

B.

EPA Did Not Properly Consider Costs and Benefits or Provide a

Rational Basis for Concluding the Rule Is “Worthwhile.”......................... 6

II. The Rule Will Cause Substantial Irreparable Harm. ....................................... 9

CONCLUSION............................................................................................................. 13

i

TABLE OF AUTHORITIES

Page(s)

Cases

Michigan v. EPA, 576 U.S. 743 (2015) ................................................................ 1-2, 5-9

NRDC v. EPA,

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

Statutes

42 U.S.C. § 7412(c)(9) .................................................................................................... 4

42 U.S.C. § 7412(d)(6) .................................................................................................... 5

42 U.S.C. § 7412(n)(1)(A) ........................................................................................... 2, 5

Rules and Regulations

National Emission Standards for Hazardous Air Pollutants From the

Portland Cement Manufacturing Industry and Standards of

Performance for Portland Cement Plants, 75 Fed. Reg. 54,970

(Sept. 9, 2010) ......................................................................................................... 12

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-Commercial Institutional, and Small Industrial

Commercial-Institutional Steam Generating Units, 76 Fed. Reg.

24,976 (May 3, 2011) .............................................................................................. 12

National Emission Standards for Hazardous Air Pollutant Emissions:

Hard and Decorative Chromium Electroplating and Chromium

Anodizing Tanks; and Steel Pickling— HCl Process Facilities and

Hydrochloric Acid Regeneration Plants, 77 Fed. Reg. 58,220 (Sept.

19, 2012).................................................................................................................. 11

National Emission Standards for Hazardous Air Pollutants: Coal- and

Oil-Fired Electric Utility Steam Generating Units—Revocation of

the 2020 Reconsideration and Affirmation of the Appropriate and

Necessary Supplemental Finding, 88 Fed. Reg. 13,956 (Mar. 6,

2023)........................................................................................................................ 10

ii

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. 38,508 (May 7, 2024) ......................................................... 6-7, 9, 12-13

Other Authorities

Comments of the Edison Electric Institute, et al. (Apr. 11, 2022), EPAHQ-OAR-2018-0794-4968, https://www.regulations.gov/

comment/EPA-HQ-OAR-2018-0794-4968......................................................... 10-11

Comments of Power Generators Air Coalition on EPA’s 2022 proposed

Appropriate and Necessary Supplemental Finding (Apr. 11, 2022),

EPA-HQ-OAR-2018-0794-4957,

https://www.regulations.gov/comment/EPA-HQ-OAR-2018-07944957 ......................................................................................................................... 11

EPA, 2024 Update to the 2023 Proposed Technology Review for the

Coal- and Oil-Fired EGU Source Category (2024 Technical Memo),

at pdf 15 (Jan. 2024), EPA-HQ-OAR-2018-0794-6919,

https://www.regulations.gov/document/EPA-HQ-OAR-2018-0794

6919 ........................................................................................................................... 8

EPA’s Combined Opp. to Mots. to Stay, North Dakota v. EPA,

No. 24-1119, at 1 (D.C. Cir. filed July 22, 2024) ................................................. 1, 5

EPA, PM CEMS Random Error Contribution by Emission Limit (Mar.

22, 2023), EPA-HQ-OAR-2018-0794-5786, (“PM CEMS Memo”),

https://www.regulations.gov/document/EPA-HQ-OAR-2018-07945786 ......................................................................................................................... 12

Tony Sachs, History’s Greatest Drunks: Winston Churchill,

YahooFinance (Aug. 17, 2016),

https://finance.yahoo.com/news/history-greatest-drunks-winstonchurchill-010000121.html ........................................................................................ 6

iii

INTRODUCTION

The Environmental Protection Agency refuses to learn the fundamental lesson

of Michigan. As this Court recognized, “[o]ne would not say that it is even rational …

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

environmental benefits.” Michigan v. EPA, 576 U.S. 743, 752 (2015). Yet the Final

Rule imposes hundreds of millions of dollars of cost for trivial benefits because, for

hazardous air pollutants (“HAPs”), EPA believes that Congress’s standard is “[l]ess

is better.” EPA’s Combined Opp. to Mots. to Stay, North Dakota v. EPA, No. 24-1119,

at 1 (D.C. Cir. filed July 22, 2024). EPA is wrong. Applicants are likely to prevail on

the merits.

Moreover, absent a stay from this Court, the Final Rule is likely to cause

substantial irreparable harm. The States and other applicants well explain the likely

harms, both in their applications and replies. Applicants join those arguments. EPA

attempts to question those harms by disputing Applicants’ explanation for why

industry declined to challenge the 2023 reaffirmance of the “appropriate and

necessary” finding. But the industry parties’ contemporary comments in that

rulemaking explain that they eschewed such a challenge not because the changes

would not have caused harm but because the harm had already occurred—the

industry had already expended billions of dollars complying with MATS. That

provides no reason to doubt Applicants’ attempts to avoid similar harms here.

Finally, EPA’s refrain that the vast majority of units are already complying

with the new filterable particulate matter standard and thus will not have to expend

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substantial capital is false. EPA’s own analysis shows that several power plants (in

addition to Colstrip) will have to undertake substantial capital projects, and the

record shows many more will too. This Court should stay the Final Rule to prevent

EPA from forcing them to incur those irrecoverable cost before obtaining judicial

review.

ARGUMENT

I.

Applicants Are Likely to Prevail on the Merits.

A.

Imposing Exorbitant Costs for Trivial Benefits Is Irrational and

Unlawful Under Michigan.

1. EPA describes Michigan as inapposite because it dealt with a different Clean

Air Act provision that asks whether regulating power plants under Section 112 is

“‘appropriate and necessary,’ a capacious phrase that the Court held included

consideration of costs.” EPA Resp. 3. But the “capaciousness” of the term appropriate

was relevant in Michigan for whether costs must be considered. Here, there is no

dispute costs must be considered under Section 7412(d)(6). EPA Resp. 7. Michigan

teaches that “[c]onsideration of cost reflects the understanding that reasonable

regulation ordinarily requires paying attention to the advantages and the

disadvantages of agency decisions,” Michigan, 576 U.S. at 753, and that “[o]ne would

not say that it is even rational … to impose billions of dollars in economic costs in

return for a few dollars in health or environmental benefits,” id. at 752. That holding

flows not from Section 7412(n)(1)(A)’s language, but the bedrock administrative law

principle that reasonable regulations must be “logical and rational.” Id. at 750

2

(quoting Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998)). It

applies equally here.

2. EPA next argues that it can blind itself to the negligible benefit the Rule

seeks to achieve (at a cost in the hundreds of millions of dollars) by knocking down a

strawman. It is not “applicants’ view” that “the only cognizable benefit of reducing

hazardous air pollution is to provide an ‘ample margin of safety’ to protect public

health, so that further reduction is superfluous if emissions already are low enough

to provide that margin.” EPA Resp. 3. Petitioners argue that when the risk from all

sources affected by a rulemaking is trivial—i.e., a lifetime risk of less than 1-in-1million—Michigan commands it is irrational to impose hundreds of millions of dollars

to reduce that trivial risk even further.

“Ample margin of safety” has a technical meaning under the Clean Air Act that

differs from trivial risk. Congress adopted into Section 7412(f)(2) EPA’s pre-1990

“Benzene standard” interpretation, which “established a maximum excess risk of 100in-one million” as providing the ample margin of safety. See NRDC v. EPA, 529 F.3d

1077, 1081-83 (D.C. Cir. 2008). The Final Rule thus found an ample margin of safety

for oil-fired units, even though the risk from those units exceeded the trivial standard

of 1-in-1-million (but was less than 100-in-1-million). See Am. Power App. 9. We do

not argue that reducing emissions from oil-fired units would not have been

worthwhile just because an ample margin of safety exists. For oil-fired units in this

rulemaking, EPA would not necessarily have run afoul of Michigan if it had elected

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to tighten the standards for those units under Section 7412(d)(6) even though it found

an ample margin of safety for them under Section 7412(f)(2).

But that is not what EPA did. To the contrary, the Final Rule focuses on only

coal-fired units, for which the existing standards provide not only an ample margin

of safety, but eliminate all but trivial risks—less than 1-in-1-million. See Am. Power

App. 9 (citing EPA, Residual Risk Assessment for the Coal- and Oil-Fired EGU Source

Category in Support of the 2020 Risk and Technology Review Final Rule, App.10,

Tables 1 and 2a. (Sept. 2019) (Docket ID EPA-HQ-OAR-2018-0794-4553) (“MATS

Risk Assessment”). Those units are, in other words, already meeting Congress’s gold

standard. Where a category is meeting that standard, Congress has authorized EPA

to delist an entire source category from Section 7412—that is, to decline to regulate

their emission at all under Section 112. See 42 U.S.C. § 7412(c)(9). And yet EPA is

imposing hundreds of millions of dollars of irrecoverable costs on those units to

further lower the risk.

EPA misses the point when it argues that Section 7412(c)(9) only authorizes it

to delist such categories, not require it. See EPA Resp. 19 (criticizing “Applicants’

passing reliance … on the ‘delisting’ criteria in subsection (c)(9)). Whether or not EPA

was required or simply permitted to delist coal-fire units, Section 7412(c)(9) confirms

that Congress sees a critical difference between an ample margin of safety (100-in-1million) and a trivial risk (1-in-1-million, two orders of magnitude smaller). Under

Michigan and basic administrative law, a Section 7412(d)(6) rule is de facto irrational

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when its only benefit is to lower the risk below the level Congress found so trivial as

to justify altogether delisting the source category.

3. EPA argues it need not consider the benefits of its Rule, no matter how small,

because Congress required technology-based standards under Section 7412(d)(6) to

reflect the maximum degree of reduction achievable. E.g., EPA Resp. 24. In the court

below, EPA was even more forthcoming, describing Congress’s policy choice as “less

is better.” EPA’s Combined Opp. to Mots. to Stay, North Dakota v. EPA, No. 24-1119,

at 1 (D.C. Cir. filed July 22, 2024). But, again, there is no dispute that both Section

7412(d)(2) and Section 7412(d)(6) require consideration of costs. EPA Resp. 7.

Consideration of cost necessarily requires paying attention both to the advantages

and disadvantages of regulation. Otherwise, what is the point?

In Michigan, EPA considered benefits but argued it need not consider costs in

listing power plants under Section 7412(n)(1)(A) because Congress generally required

listing decisions be based upon the “volume of pollution emitted.” 576 U.S. at 756-57.

This Court rejected this “less is better” approach there, and it should do so here also.

If it is not “‘appropriate,’ to impose” large costs for minute benefits, id. at 752, it is

not “necessary,” 42 U.S.C. § 7412(d)(6). It is plainly not rational. Michigan, 576 U.S.

at 750, 752.

Finally, EPA contends that “if EPA were promulgating subsection (d)(2)

standards for the first time today, the Act would not only permit the two emission

standards in the 2024 rule, but would arguably require them.” EPA Resp. 20

(emphasis omitted). Not so. While subsection (d)(3) sets a MACT floor without

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consideration of cost (and, therefore, benefit), subsection (d)(2) does require

consideration of cost. See id. For the same reasons that the consideration of costs

under (d)(6) requires weighing those costs against the benefits, EPA must engage in

the same rational exercise of its authority under (d)(2). That was the point of

Michigan.

B.

EPA Did Not Properly Consider Costs and Benefits or Provide a

Rational Basis for Concluding the Rule Is “Worthwhile.”

1. EPA further protests that it did “consider” both costs and benefits,

concluding that the Rule “is a ‘worthwhile’ exercise of’ the agency’s authority.” EPA

Resp. 24 (quoting 89 Fed. Reg. at 38,553). Michigan, however, requires more than

acknowledging “the advantages and the disadvantages of agency decisions.” 576 U.S.

at 753. Michigan requires “paying attention” by weighing costs against benefits, and

reasoned decisionmaking requires some cogent explanation of how “the costs of its

decision [are] outweighed [by] the benefits.” Id. at 750. Here, EPA nods towards the

proposition that toxics generally (at some dose and exposure) are “associated with a

variety of adverse health effects,” 89 Fed. Reg. at 38,515, and then declares the Rule

“a ‘worthwhile’ exercise” of its authority because the rule reduces hazardous air

pollutants. 1 EPA Resp. 24. That is not weighing costs against benefits, much less

1 EPA’s approach to weighing benefits and costs is reminiscent of a “Churchill

Martini,” “a glass of cold gin with a nod in the direction of France in lieu of vermouth.”

Tony Sachs, History’s Greatest Drunks: Winston Churchill, YahooFinance (Aug. 17,

2016),

https://finance.yahoo.com/news/history-greatest-drunks-winston-churchill010000121.html.

6

explaining how “the costs of its decision [are] outweighed [by] the benefits.” Michigan,

576 U.S. at 750. That is arbitrary and capricious.

2. EPA claims that it is too difficult to “monetize” reductions in hazardous air

pollutant emissions. EPA Resp. 28. The Court should be skeptical about this claim—

after all, while there may be uncertainties and assumptions to any such evaluation,

EPA seems to have no problem putting a dollar amount on the benefits of emission

and discharge reductions in all manners of rulemakings, including something called

the “social cost of carbon,” which purports to assign a benefit for reducing every ton

of carbon dioxide a single source emits. But in any event, monetization is not the only

way to quantify benefit. And here, there is a ready method for quantifying (even if

not monetizing) the benefit of reducing hazardous air pollutants from power plants

beyond the substantial reductions already achieved by the current regulations: it is

the reduction in lifetime cancer risk (for the carcinogen effects of hazardous air

pollutants) and in hazard index and hazard quotient (for the “variety of [non-cancer]

adverse effects,” 89 Fed. Reg. at 38,515, of hazardous air pollutants).

Reasoned decisionmaking requires a cogent evaluation of benefits and costs.

Here, EPA’s only cogent measure of benefit under Section 7412 is the amount of

avoided risk. Although EPA did not quantify that either, its risk review assesses the

residual risk from the units the Rule regulates—i.e., the maximum risk the Rule

could avoid. That maximum is 1 to several orders of magnitude smaller than the

trivial-risk-level-equivalent. Am. Power App. 14. Because the Rule irrationally

7

requires exorbitant costs for these negligible benefits, it is unlawful. See Michigan,

576 U.S. at 750, 752.

3. EPA also seeks to minimize the cost impacts of the Rule by claiming that

(1) the cost impact of the Rule falls almost exclusively on two units at the Colstrip

power plant in Montana; (2) the cost of the Rule is a small fraction of the typical

capital and total expenditures for the power sector and its revenues. The first claim

is false. Both are irrelevant.

Colstrip is not the only power plant that would have to make substantial

capital expenditures to comply with the Rule. To be sure, Colstrip would have to

construct new fabric filters, the most expensive types of controls for filterable

particulate matter. But several other units, by EPA’s own accounting, would have to

make substantial capital expenditures to upgrade their electrostatic precipitators

(ESPs) at a cost of $40 per kilowatt (KW) or to completely rebuild their ESPs at a cost

of $80/KW. See EPA, 2024 Update to the 2023 Proposed Technology Review for the

Coal- and Oil-Fired EGU Source Category (2024 Technical Memo), at pdf 15 (Jan.

2024) (Docket ID EPA-HQ-OAR-2018-0794-6919), https://www.regulations.gov/

document/EPA-HQ-OAR-2018-0794-6919; id., Attach. 1 (0.010 limit assumptions

tab). This translates, for example, to a capital cost of $29 million for the 728-MW

Mayo power plant in North Carolina, $26 million for each of the three 650-MW

Harrison units in West Virginia, and $47.5 million for each of the four 593-MW

Labadie units in Missouri. Id. The total capital cost for these units is about $300

8

million. 2 And those are just the costs that EPA is willing to concede in the Final Rule.

In reality, many more plants will be affected and will have to make substantial capital

expenditures. See infra 11-13 (discussing the record on compliance margin).

That the power industry is large and thus has large revenues is entirely

irrelevant to any weighing of benefits and costs. The industry’s total revenue says

nothing about whether “the costs of [EPA’s] decision [are] outweighed [by] the

benefits.” Michigan, 576 U.S. at 750. As this Court explained, “[c]onsideration of cost

… reflects the reality that ‘too much wasteful expenditure devoted to one problem

may well mean considerably fewer resources available to deal effectively with other

(perhaps more serious) problems.’” Id. at 753 (quoting Entergy Corp. v. Riverkeeper,

Inc., 556 U.S. 208, 233 (2009) (BREYER, J., concurring in part and dissenting in

part)). Indeed, if the standard for whether it is “worthwhile” to impose a new

regulation on an industry with about $400 billion in annual revenues, see 89 Fed.

Reg. at 38,533 (discussing the revenues of the power industry), is a general nod

towards “less is better” and whether the cost of the rule is smaller than annual

revenues, there would be practically no rational bound on EPA’s discretion.

II.

The Rule Will Cause Substantial Irreparable Harm.

In their applications and replies, the States and other applicants well explain

the irreparable harm that flows from the Final Rule absent this Court’s intervention.

2 Moreover, it is unclear why that matters. The Rule is still requiring Colstrip

and these plants to spends tens to hundreds of millions of dollars each, for trivial

benefits for each of these plants. That is arbitrary and capricious.

9

Applicants join those arguments, in addition to their own. Applicants add only two

more points.

A. EPA disputes Applicants’ explanation that industry did not challenge the

2023 reaffirmance of the “appropriate and necessary” finding, 88 Fed. Reg. 13,956

(Mar. 6, 2023), because a challenge would have been pointless after industry had

already implemented the MATS requirements. EPA Resp. 18 n.5. But contrary to

EPA’s suggestion, this is no post hoc rationalization. Industry parties explained in

their comments in the 2023 rulemaking that they eschewed such a challenge because

it would be not only futile (the industry had already expended billions of dollars

complying with MATS) but highly disruptive to the industry if it resulted in the

elimination of MATS. Indeed, such a result could have had unintended consequences

relating to cost recovery by regulated utilities. One commenter stated:

Given these circumstances, [Commenter] believes there is no reason

to rescind or significantly amend the MATS. Doing so would upend

a regulatory landscape that has been settled for a decade and subject

the industry to regulatory uncertainty and disruption of reliable

operations. This is particularly inappropriate here, where owners

and operators have already invested large amounts of capital to

install control technology and other measures to comply with the

existing standards, which have already resulted in a dramatic

reduction in HAP emissions. Rescinding MATS could also have

unintended consequences, such as making cost recovery for MATSrequired controls more difficult. While it may be intuitive that

controls that were legally required at the time they were installed

are justified, rescinding MATS at this time would provide

unnecessary fodder for unreasonable arguments against such cost

recovery.

Comments of Power Generators Air Coalition on EPA’s 2022 proposed Appropriate

and Necessary Supplemental Finding, at 3 (Apr. 11, 2022) (Docket ID EPA-HQ-OAR-

2018-0794-4957),

https://www.regulations.gov/comment/EPA-HQ-OAR-2018-079410

4957; see also Comments of the Edison Electric Institute, et al., at 1 (Apr. 11, 2022)

(Docket ID EPA-HQ-OAR-2018-0794-4968), https://www.regulations.gov/comment/

EPA-HQ-OAR-2018-0794-4968 (multiple industry organization supporting the

“restor[ation of] the ‘appropriate and necessary’ determination underpinning the

Mercury and Air Toxics Standards (MATS) given the industry’s full implementation

of MATS. Such a restoration provides critical regulatory and business certainty to

the industry regarding regulation under Clean Air Act (CAA or Act) section 112.”).

Nothing about that experience calls into question Applicants’ attempts to avoid

similar harms here.

B. EPA’s refrain that the vast majority of units are already complying with the

new filterable particulate matter standard and thus will not have to expend

substantial capital for controls installation, upgrades, and rebuilds is false. Again,

EPA’s own analysis shows that several additional power plants will have to

undertake substantial capital projects. Supra 8-9. And that estimate is artificially

low. In the Final Rule, EPA refused to account for a compliance margin in

determining the units that would have to make such expenditures—even though EPA

has repeatedly acknowledged the importance of accounting for a compliance margin

in setting and evaluating emission standards, 3 and even did so elsewhere in this same

EPA has long recognized the central importance of compliance margins:

“when developing standards [under Section 112], we take into account the

uncertainty associated with measuring emissions and we assume that plants operate

with a compliance buffer to minimize the likelihood of exceeding the standard.” 77

Fed. Reg. 58,220, 58,231 (Sept. 19, 2012). In its 2011 MATS proposal, EPA explained

“the numerical standard should account for variability … and provide sufficient

3

11

rulemaking, conceding that a compliance margin of 50% is appropriate here. EPA,

PM CEMS Random Error Contribution by Emission Limit, at 2 (Mar. 22,

2023)

(Docket

ID

EPA-HQ-OAR-2018-0794-5786)

(“PM

CEMS

Memo”),

https://www.regulations.gov/document/EPA-HQ-OAR-2018-0794-5786 (noting “an

operational target limit … [of] one-half of the emission limit” and setting “target

compliance levels” at half the limit). If the units that are subject to a standard of

0.010 lb/MMBtu must target an emission rate of 0.005 lb/MMBtu (i.e., half the

standard), many more units would have to make major capital expenditures to

upgrade or rebuild their ESPs, and even construct new fabric filters (just as Colstrip

would have to do).

The record demonstrates that accounting for a compliance margin makes a

significant difference. Responding to comments, EPA estimated that even a modest

20% compliance margin would (1) increase the Rule’s cost by approximately 70%

(“from $87.2M to $147.7M,” annualized), and (2) almost double the number of units

that would have to upgrade their controls, at great cost (“the number of ESP upgrades

(previously 11) … would also increase (to 20 …)”). 89 Fed. Reg. at 38,521. The record

further demonstrates that the result would be even more stark if EPA accounted for

a 50% compliance margin, which it elsewhere recognizes as the likely “target” rate,

PM CEMS Memo at 2. EPA did not do that analysis, but it did consider an alternative,

compliance margin for owners/operators ….” 76 Fed. Reg. 24,976, 25,066 (May 3,

2011). In another HAP rulemaking, EPA established a standard “at a level higher

than all measured values (to account for the inability to reliably measure any lower

standard) and [to] … provide[] an ample compliance margin.” 75 Fed. Reg. 54,970,

54,984 (Sept. 9, 2010).

12

proposed standard of 0.060 lb/mmBtu, which is the equivalent of the final standard

of 0.01 lb/mmBtu with a compliance margin of 40%. See 89 Fed. Reg. at 38,518. Based

on EPA’s own analysis, accounting for a more realistic 40% compliance margin would

(1) increase the Rule’s cost almost 5 folds (from $87.2M to $398.8M, annualized), and

(2) almost triple the number of units (from 33 to 94) affected by the Rule. See 2024

Technical Memo at 16-17, Table 4. The number of units that would have to install

fabric filters, which EPA acknowledges (at least in connection with Colstrip) as the

most expensive capital expenditures that the Final Rule may require, would increase

from two to twelve. Id., Attach. 1 (0.006 limit assumptions tab). Absent a stay, these

capital expenditures will have to start immediately and will never be recovered.

CONCLUSION

This Court should stay the Final Rule pending judicial review.

Respectfully submitted,

/s/ Jonathan Y. Ellis

Jonathan Y. Ellis

Counsel of Record

Makram B. Jaber

Allison D. Wood

Aaron M. Flynn

MCGUIREWOODS LLP

888 16th Street NW, Suite 500

Black Lives Matter Plaza

Washington, DC 20006

(202) 857-2416

jellis@mcguirewoods.com

Counsel for Applicants

September 18, 2024

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