Reply Brief — West Virginia, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefAug 23, 2024

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No. 24A95

In the Supreme Court of the United States

——————————————————————

STATE OF WEST VIRGINIA,

STATE OF INDIANA, et al.,

Applicants,

ENVIRONMENTAL PROTECTION AGENCY and MICHAEL S. REGAN,

Administrator, United States Environmental Protection Agency,

Respondents.

———————

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE D.C. CIRCUIT

REPLY IN SUPPORT OF STATES’ EMERGENCY APPLICATION

FOR AN IMMEDIATE STAY OF ADMINISTRATIVE ACTION

PENDING REVIEW IN THE D.C. CIRCUIT

THEODORE E. ROKITA

ATTORNEY GENERAL

PATRICK MORRISEY

ATTORNEY GENERAL

JAMES A. BARTA

Solicitor General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

JENNA LORENCE

Deputy Solicitor General

OFFICE OF THE ATTORNEY

GENERAL OF INDIANA

302 W. Washington St.

Indiana Government Center South

5th Floor

Indianapolis, IN 46204

Phone: (317) 232-0709

james.barta@atg.in.gov

Counsel for State of Indiana

SPENCER J. DAVENPORT

Assistant Solicitor General

OFFICE OF THE WEST VIRGINIA

ATTORNEY GENERAL

1900 Kanawha Blvd., East

Building 1, Room E-26

Charleston, WV 25305

Phone: (304) 558-2021

michael.r.williams@wvago.gov

Counsel for State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction................................................................................................................................... 1

Argument ....................................................................................................................................... 3

The States Will Prevail .................................................................................................... 3

II.

The Rule Is Inconsistent With Section 111 ....................................................... 3

The Rule Unlawfully Imposes An Impossible “Best

System Of Emission Reduction” ..............................................................3

The Rule Unlawfully Hampers The States.............................................9

The Major-Questions Doctrine Confirms Again That This Rule

Is Unlawful .......................................................................................................... 12

The States Will Be Irreparably Harmed Without A Stay ......................................... 19

III. A Stay Would Serve The Public Interest And The Balance Of The Equities ......... 31

Conclusion.................................................................................................................................... 34

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. DHHS,

594 U.S. 758 (2021) ........................................................................................................... 14, 31

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................................................................................. 6, 23

Am. Lung Ass’n v. EPA,

985 F.3d 914 (D.C. Cir. 2021) ................................................................................................10

Ark. Elec. Co-op Corp. v. Ark. Pub. Serv. Comm’n,

461 U.S. 375 (1983) .................................................................................................................12

Bailey v. Alabama,

219 U.S. 219 (1911) .................................................................................................................18

Balt. Gas & Elec. Co. v. NRDC,

462 U.S. 87 (1983) .................................................................................................................2, 5

Biden v. Nebraska,

143 S. Ct. 2355 (2023).............................................................................................................14

Califano v. Yamasaki,

442 U.S. 682 (1979) .................................................................................................................23

California v. Am. Stores Co.,

492 U.S. 1301 (1989) ...............................................................................................................21

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,

447 U.S. 557 (1980) .................................................................................................................12

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ...................................................................................................................4

Danco Lab’ys, LLC v. All. for Hippocratic Med.,

143 S. Ct. 1075 (2023)....................................................................................................... 19, 27

Defs. of Wildlife v. U.S. Forest Serv.,

94 F.4th 1210 (10th Cir. 2024).................................................................................................5

District of Columbia v. U.S. Dep’t of Agric.,

444 F. Supp. 3d 1 (D.D.C. 2020) ...........................................................................................29

Doe v. Gonzales,

546 U.S. 1301 (2005) ...............................................................................................................33

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) .................................................................................................................30

TABLE OF AUTHORITIES

(continued)

Page(s)

Escoe v. Zerbst,

295 U.S. 490 (1935) .................................................................................................................11

Essex Chem. Corp. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973) ..................................................................................................6

FTC v. Food Town Stores, Inc.,

539 F.2d 1339 (4th Cir. 1976) ................................................................................................26

Garland v. Vanderstok,

144 S. Ct. 44 (2023).................................................................................................................19

Gonzales v. Oregon,

546 U.S. 243 (2006) .................................................................................................................15

Hartford Fire Ins. v. Orient Overseas Containers Lines (UK) Ltd.,

230 F.3d 549 (2d Cir. 2000) ...................................................................................................17

Hedges v. Dixon County,

150 U.S. 182 (1893) .................................................................................................................23

Hollingsworth v. Perry,

558 U.S. 183 (2010) .................................................................................................................22

Hughes v. Talen Energy Mktg., LLC,

578 U.S. 150 (2016) .................................................................................................................12

Int’l Ladies’ Garment Workers’ Union v. Donovan,

722 F.2d 795 (D.C. Cir. 1983) ..................................................................................................8

Jimenez-Castro v. Sessions,

750 F. App’x 406 (6th Cir. 2018) ...........................................................................................11

Kentucky v. Biden,

57 F.4th 545 (6th Cir. 2023) ..................................................................................................27

Kentucky v. EPA,

No. 23-3216, 2023 WL 11871967 (6th Cir. July 25, 2023) ...................................................30

King v. Burwell,

576 U.S. 473 (2015) .................................................................................................................14

Kisor v. Wilkie,

588 U.S. 558 (2019) ...................................................................................................................2

Labrador v. Poe,

144 S. Ct. 921 (2024)...............................................................................................................19

League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ....................................................................................................32

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Ledbetter v. Baldwin,

479 U.S. 1309 (1986) ...............................................................................................................29

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024)...............................................................................................................4

MCR Oil Tools, LLC v. DOT,

No. 24-60230, 2024 WL 3579112 (5th Cir. July 30, 2024) .....................................................5

Mexichem Fluor, Inc. v. EPA,

866 F.3d 451 (D.C. Cir. 2017) ................................................................................................31

Michigan v. EPA,

213 F.3d 663 (D.C. Cir. 2000) ................................................................................................10

Michigan v. EPA,

576 U.S. 743 (2015) ............................................................................................................. 5, 30

Mims v. Arrow Fin. Servs., LLC,

565 U.S. 368 (2012) .................................................................................................................15

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.,

463 U.S. 29 (1983) .....................................................................................................................4

Nat’l Bank v. United States,

101 U.S. 1 (1879).....................................................................................................................18

Nat’l Fed’n of Indep. Bus. v. OSHA,

595 U.S. 109 (2022) ........................................................................................................... 16, 19

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .................................................................................................................18

Nat’l Rev., Inc. v. Mann,

140 S. Ct. 344 (2019)...............................................................................................................14

Nat’l-Southwire Aluminum Co. v. EPA,

838 F.2d 835 (6th Cir. 1988) ..................................................................................................10

Nken v. Holder,

556 U.S. 418 (2009) ....................................................................................................... 3, 29, 31

Ohio v. EPA,

144 S. Ct. 2040 (2024)........................................................................................... 19, 21, 29, 30

Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,

461 U.S. 190 (1983) .................................................................................................................12

PGBA, LLC v. United States,

60 Fed. Cl. 567 (2004) ............................................................................................................23

TABLE OF AUTHORITIES

(continued)

Page(s)

Puerto Rico v. Franklin Cal. Tax-Free Tr.,

579 U.S. 115 (2016) .................................................................................................................16

Qwest Corp. v. Boyle,

589 F.3d 985 (8th Cir. 2009) ....................................................................................................4

R.J. Reynolds Vapor Co. v. FDA,

65 F.4th 182 (5th Cir. 2023) ..................................................................................................31

Rowe v. Educ. Credit Mgmt. Corp.,

559 F.3d 1028 (9th Cir. 2009) ................................................................................................17

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020).............................................................................................................24

Sierra Forest Legacy v. Sherman,

646 F.3d 1161 (9th Cir. 2011) ................................................................................................23

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993) ...................................................................................................................9

Stevens v. United States,

302 F.2d 158 (5th Cir. 1962) ..................................................................................................17

Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll.,

600 U.S. 181 (2023) .................................................................................................................18

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ...................................................................................... 23, 29, 30

Texas v. EPA,

No. 23-60069, 2023 WL 7204840 (5th Cir. May 1, 2023) ....................................................30

United States v. Clark,

445 U.S. 23 (1980) ...................................................................................................................15

West Virginia v. EPA,

577 U.S. 1126 (2016) ........................................................................................................... 2, 19

West Virginia v. EPA,

597 U.S. 697 (2022) ........................................................................... 1, 5, 12, 13, 14, 16, 17, 23

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) ..................................................................................................30

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

42 U.S.C. § 7411 ..................................................................... 3, 4, 9, 10, 12, 13, 15, 16, 22, 23, 28

42 U.S.C. § 15962 .........................................................................................................................15

Other Authorities

40 C.F.R. § 60.5740b ....................................................................................................................26

BLACK’S LAW DICTIONARY (12th ed. 2024) ........................................................................... 9, 17

C. Boyden Gray,

Climate Realism and a Positive Vision for American Energy,

21 GEO. J.L. & PUB. POL’Y 149 (2023) ..................................................................................26

Ctr for Int’l Env’t L.,

Comment Letter on Proposed Rule For the Enhancement and

Standardization of Climate-Related Disclosures For Investors

(SEC Release No. 33-11042; File No. S7-10-22), 2022 WL 18672611 ................................7

Cyrus Zarraby,

Regulating Carbon Capture and Sequestration: A Federal Regulatory

Regime to Promote the Construction of a National Carbon Dioxide

Pipeline Network,

80 GEO. WASH. L. REV. 950 (2012) .......................................................................................27

Exec. Order No. 13,990,

Protecting Public Health and the Environment and Restoring Science

To Tackle the Climate Crisis,

86 Fed. Reg. 7037 (Jan. 25, 2021) .........................................................................................15

FERC,

One-Time Informational Reports on Extreme Weather Vulnerability

Assessments; Climate Change, Extreme Weather, and Electric System

Reliability,

87 Fed. Reg. 39414 (July 1, 2022) .........................................................................................33

H.R. 2519, 117th Cong. (2021) ....................................................................................................15

H.R. 4535, 114th Cong. (2016) ....................................................................................................15

Press Release,

Joe Manchin, Manchin Sets the Record Straight on Coal and Inflation

Reduction Act (Aug. 4, 2022) ................................................................................................15

TABLE OF AUTHORITIES

(continued)

Page(s)

Richard McDonough,

Challenges to Growth Remain Key Story in Appalachian Basin,

PIPELINE & GAS J. (May 2024).............................................................................................25

Ronald A. Cass,

Staying Agency Rules: Constitutional Structure and Rule of Law in the

Administrative State,

69 ADMIN. L. REV. 225 (2017) ...............................................................................................32

S. 4280, 117th Cong. (2022) .........................................................................................................15

WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY (1967) .................................................5

vii

INTRODUCTION

In opposing the States’ application for a stay, EPA tells an appealingly simple story.

EPA claims nearly absolute discretion for itself in implementing the Clean Air Act. It

thinks its discretion is especially broad when a case involves technical questions. And it

believes this case rests on a big record. From these premises, EPA surmises that the Court

must effectively roll over to the agency.

Yes, the story’s simple—but it’s wrong. The CAA limits what EPA can and can’t do;

it doesn’t leave EPA to its own devices. Among other things, EPA can’t merely regulate

from its imagination.

It needs to show that the requirements it imposes—and the

technologies that underlie them—are real options in the real world. The States here have

explained (alongside many other Applicants) why the power-plant regulations at issue don’t

fulfill that responsibility. And the Rule and its many failings don’t present questions of

extreme technical complexity; the flaws in the Rule go more than anything to EPA’s legal

misunderstandings of what the Act demands. Meanwhile, EPA can’t wield the number of

pages in its analysis as a shield against relief (as it tries to do at least a half-dozen times).

No, its record is a paper tiger.

The earlier lessons from West Virginia v. EPA, 597 U.S. 697 (2022), also confirm

that EPA’s account isn’t right. Respondents want to blue pencil that case to hold only that

EPA can’t expressly announce its plans to close coal plants through Section 111. But West

Virginia never imposed such a direct-evidence requirement. And though the Rule’s

structure may be a bit different from West Virginia’s Clean Power Plan, the bottom line is

the same: faced with no real chance of implementing carbon capture at the scale and speed

that EPA has commanded, coal-fired power plants will be effectively forced to shift over to

operating as part-time gas plants or shutter entirely. West Virginia weighs against such a

result. A reconfiguration of the national energy system of that sort is a question for

Congress, not EPA.

The agency’s mistakes will have significant, immediate, and painful consequences

for the States and others unless the Court stays the Rule right now. Our nation’s electricity

supply will become less reliable and more expensive. Power plants will close. And States

will be forced to march ahead with complex, time-consuming, and expensive implementation

efforts that will be all for naught once the Rule gets a closer look. EPA tries all kinds of

maneuvers to minimize these harms: it shrinks the relevant period of harm, paints coerced

closures as voluntary decisions, touts the dangers of climate change (even while insisting

the Rule won’t address those dangers for years), and waves away crippling compliance costs

as inevitable. But like the Rule itself, none of these strategies hold up under scrutiny.

Of course, the Court has heard this story before, and it acted to pause EPA’s

misguided work back then. See West Virginia v. EPA, 577 U.S. 1126 (2016). Faced with

much the same problem here, the Court should act again. If the Court were to instead

endorse EPA’s simple-but-skewed view of the CAA, that stamp of approval would fail to

“take account of the far-reaching influence of agencies and the opportunities such power

carries for abuse”—all at a time when EPA is pushing the CAA’s limits to the brink in

several ways. Kisor v. Wilkie, 588 U.S. 558, 589 (2019). The Court has already shown it

knows better.

The Court should thus stay the Rule until it resolves any petition for certiorari.

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,

responsible review of this far-reaching regulation.

The States Will Prevail.

In many ways, and in many places, the Rule takes unlawful steps. The States here

focus on some of the most obvious offenses: how the Rule inappropriately fails to employ an

“adequately demonstrated” system that produces “achievable” emission limitations, how it

unjustifiably cabins state discretion, and how it incorrectly forgets the real message from

West Virginia v. EPA.

The Rule Is Inconsistent With Section 111.

This case can start and end with the plain text of Section 111 of the CAA. EPA

traverses congressional limits in that section in at least two distinct instances that warrant

immediate relief.

The Rule Unlawfully Imposes An Impossible “Best System Of

Emission Reduction.”

Carbon capture and co-firing are not “adequately demonstrated” systems that lead

to “achievable” emission limitations. 42 U.S.C. § 7411(d)(1). EPA and its Respondents

devote plenty of attention to showing otherwise—but their responses ignore many issues

the States raised. Appl. 9-21. The silence is telling; at least at the pace, scale, and efficiency

that EPA demands, these systems aren’t ready for primetime. So the States will likely

prevail on their challenge.

First, let’s level set. EPA and its supporters begin by seeking shelter in the

familiar embrace of agency deference. See EPA Opp. 24-25; see also Power Co. Opp. 10;

Enviro. Opp. 4. But as even EPA is forced to concede (before quickly forgetting), no

deference is appropriate when deciding what this statute means.

“[T]he role of the reviewing court under the APA is, as always, to independently

interpret the statute and effectuate the will of Congress subject to constitutional limits.”

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (2024). And make no mistake: the

questions the States present here are questions of congressional will, not granular factual

judgments. In particular, the States object to how broadly EPA understands its own power.

Because Section 111 draws some clean boundaries around the delegations it defines, judges

must “police the outer statutory boundaries of those delegations.” Id. at 2268. So EPA is

wrong to urge deference to its “expertise” in matters like these—indeed, it gives away that

it has this idea all wrong when it relies in a roundabout way on the now-defunct Chevron

doctrine. See EPA Opp. 25 (quoting Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428

(2011) (citing “generally” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

865-66 (1984))).

Even if some degree of “deference” (in the form of arbitrary-and-capricious review)

is appropriate as to some aspects of this case, it’s not the very-nearly-blind deference that

EPA seems to want. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.,

463 U.S. 29, 43 (1983) (explaining that under the “arbitrary and capricious” standard, a

“reviewing court should not attempt itself to make up for [an agency action’s] deficiencies”);

see also, e.g., Qwest Corp. v. Boyle, 589 F.3d 985, 998 (8th Cir. 2009) (“We will not blindly

defer to an agency decision that is uninformed or unexplained.”). “Not only must an

agency’s decreed result be within the scope of its lawful authority, but the process by which

it reaches that result must be logical and rational.” Michigan v. EPA, 576 U.S. 743, 750

(2015). As lower courts have explained, to confirm that happened, courts must “scrutinize

the record.” MCR Oil Tools, LLC v. DOT, No. 24-60230, 2024 WL 3579112, at *3 (5th Cir.

July 30, 2024). That means the “entire administrative record,” Defs. of Wildlife v. U.S.

Forest Serv., 94 F.4th 1210, 1230 (10th Cir. 2024) (emphasis added), not just the agency’s

preferred bits.

And though the agency says scientific matters call for some higher

standard, it mistakenly relies on a case addressing the separate substantial-evidence

standard in pressing that point. See Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983).

So in this case, the Court should be careful about leaning too much on deference,

discretion, and similar agency-related concepts.

Now on to the statute.

App. 9a-10a.

The best system needs to be

“demonstrated.” EPA therefore must “make sure the best system has a proven track

record.” West Virginia, 597 U.S. at 759 (Kagan, J., dissenting). By requiring that a system

be “demonstrated,” rather than “suggested” or “known,” for instance, Congress called on

EPA “to show clearly” that the system would work for the regulated source. Demonstrate,

WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY 220 (1967).

By tacking on the

“adequately” modifier, Congress stressed that the technology must be “sufficient for [the]

specific requirement” it is designed to address. Adequate, supra at 11. Read together,

then, an “adequately demonstrated” system must be one that EPA “has … shown to be

reasonably reliable” and “reasonably efficient” in achieving emission control at the relevant

facility. Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973). Section

111’s references to the Administrator’s role do not give EPA a “roving license” to do

otherwise. Am. Elec. Power Co., 564 U.S. at 427.

Compare these relatively high standards—based on a proper understanding of the

statute—with the spin on the statute that EPA offers in response. EPA Opp. 26-29.

It’s not enough, for example, for EPA to say that a technology might have existed at

some abstract level for a long time, as that says nothing about whether the technology is fit

for the requirement to which it will now be applied (90% capture across an entire facility).

EPA Opp. 26. Nor is it particularly compelling that several projects are in development.

See id. (referring to development numbers); id. at 27 (referring to Project Tundra and

Diamond Vault). Without seeing whether those projects ultimately succeed, they don’t

“show” or “prove” anything, let alone establish a “track record.” Id. Use of carbon capture

in drips and drabs does not by itself suggest that the technology can be scaled up, either.

That’s why projects like those at Argus Cogeneration Plant (which doesn’t transport, store,

or reflect a specific capture rate, let alone 90%) or Bellingham Cogeneration Plant (which

doesn’t transport, store, or capture more than 10% of carbon emissions) provide next to no

real help. EEI Appl. 12, 15. And of the “multiple coal plants” that EPA identified, EPA

Opp. 27, none have actually captured carbon at the rate targeted by the Rule to any

consistent degree, let alone throughout their operation and at the massive scale the Rule

anticipates. See Appl. 11-15; see also, e.g., NRECA Appl. 16-18; EEI Appl. 15-16; Ohio

Appl. 10-11; EGST Appl. 16-17; NMA Appl. 12-14; NACCO Appl. 15-16.

No wonder, then, that even the most ardent environmentalists have observed how

“high-profile [carbon-capture] projects, including … the Petra Nova and Boundary Dam

projects at coal-fired power plants, … have all missed capture targets advertised by

proponents, have claimed high capture rates by only capturing a minute fraction of total

facility emissions, or both.” Ctr for Int’l Env’t L., Comment Letter on Proposed Rule For

the Enhancement and Standardization of Climate-Related Disclosures For Investors (SEC

Release No. 33-11042; File No. S7-10-22), 2022 WL 18672611, at *3. Some Respondents

here likewise recognize there’s no real track record for capture, but they mistakenly assume

(without explanation) that the missing evidence stems from “the sector’s long history of

operating without any CO2 standards.” N.Y. Opp. 15.

And that’s only part of the Rule’s incongruence with the statute. The States and

others have also laid out how transport and storage facilities wouldn’t come close to meeting

the demand that would be created by the Rule, and there’s no hope of building either of

these networks on the timeline that the Rule imposes. Appl. 15-16. EPA responds by just

reciting what transport and storage does presently exist, such as pipelines (which tend to

be heavily concentrated in one region of the country) or storage locales that might be

positioned near some facilities (but not others). EPA Opp. 28-29. But even it doesn’t

suggest that today’s transport and storage would be nearly enough. Instead, it just declares

that energy producers will design, construct, and develop all the necessary elements

successfully in a short time (often in the face of significant regulatory hurdles, such as

permitting requirements) without ever explaining how to bridge the gap between what we

have now and what EPA imagines will be needed. EPA Opp. 29. At most, it seems to have

done a few back-of-the-envelope timing calculations based on a single hypothetical project.

App. 88a. But that’s essentially a hopeful wish about how things will come to be soon in

areas far outside the agency’s realm of expertise. That’s not the same as saying that a

particular technology is, in fact, “adequately demonstrated” today, as the statute requires.

See App. 46a n.223 (describing lead time for “the development of projected technology”).

And anyway, even if the statute left room for a little prognostication, an agency still must

“engage in reasoned decisionmaking” when it makes predictive judgments. Int’l Ladies’

Garment Workers’ Union v. Donovan, 722 F.2d 795, 821-22 (D.C. Cir. 1983). EPA hasn’t.

It’s reasonable that Congress would not have wanted EPA to just take a gamble on

a system of emission reduction in the way the Rule does. If a system is impossible to

implement, then the facility will need to close. Perhaps it will even go through the painful

expense of trying to implement the system, only to limp along, find itself unable to meet the

standards, and give up in the end. None of these constitute the right outcome considering

how the statute contemplates continued operation; a “standard of performance,” after all,

expects that the unit will indeed continue to “perform.” And EPA could respect that

congressional command by looking to firmly understood and practically adaptable

technologies of today.

Lastly, other of the States’ practices that might be seen as endorsing carbon

capture don’t change things. N.Y. Opp. 14-15. It’s hard to understand how Respondents

think state-level work transforms a federal statute. But in any event, state efforts that fund

or otherwise support aspirational efforts are consistent with what the States already said:

“CCS is an important emerging technology … but it’s not feasible on the Rule’s scale or

timetable.” Appl. 10. The States take a more grounded approach in working toward the

use of the technology without mandating a rushed, aggressive, and expansive rollout of the

kind the Rule insists on.

The Rule Unlawfully Hampers The States.

The Rule also impairs the discretion that Congress meant to give States. That’s true

in at least two ways.

One problem arises from EPA’s “presumptive standards” of performance. The

statute expressly assigns to the States the task of writing plans that “establish[] standards

of performance for any existing source.” 42 U.S.C. § 7411(d)(1). Yet by dubbing its

preferred standard the “presumptive” one, EPA has embraced its own standard “as true

until [the standard] is shown not to be true.” Presume, BLACK’S LAW DICTIONARY (12th

ed. 2024).

Put another way, a “presumption” establishes some “predicate fact” that

“produces a required conclusion in the absence of an explanation,” so the party against

whom a presumption is directed has “the burden of producing an explanation to rebut” it.

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993) (cleaned up). So States must

now overcome a non-statutory barrier if they want to go their own way (as the statute

expects)—even in a way that produces an equivalent emission limitation. And really, the

Rule does not even leave room for States to set equivalent standards. According to the

Rule, unless a State is considering remaining useful life or other source-specific factors,

States may “deviate” from the presumptive standard only “to apply a more stringent

standard of performance.” App. 171a.

Neither EPA nor any of its fellow Respondents find specific statutory authority for

these constraints. Instead, they emphasize how State standards of performance must

“reflect[]”—and, in their view, be no less stringent than—the “degree of emission

limitation” produced “through the application of the [EPA-identified] best system of

emission reduction.” 42 U.S.C. § 7411(a)(1). But that argument conflates three distinct

concepts: (1) the best system of emission reduction (which EPA sets); (2) the emission

limitation (which, theoretically, flows straight from the best system); and (3) the standard

of performance (which States first set and EPA then approves if “satisfactory”). EPA’s

role in identifying the first item and perhaps calculating the second does not give it some

front-end power as to the third. In fact, even the court that once endorsed the Clean Power

Plan recognized that these delineated roles “give[] the States broad discretion in achieving

th[e] emission limitations.” Am. Lung Ass’n v. EPA, 985 F.3d 914, 962 (D.C. Cir. 2021),

overruled on other grounds by West Virginia v. EPA, 597 U.S. 697 (2022); see also Nat’lSouthwire Aluminum Co. v. EPA, 838 F.2d 835, 838 (6th Cir. 1988) (“[Section 111(d)] gives

substantial latitude to the states in setting emission standards.”). EPA cannot “simply

throw[] the burden of persuasion onto the states.” Michigan v. EPA, 213 F.3d 663, 683

(D.C. Cir. 2000). Presumptive standards effectively put broad state discretion back in the

box.

Another problem appears when one looks to the States’ ability to consider the

“remaining useful life of the existing source,” along with “other factors,” when setting

performance standards. 42 U.S.C. § 7411(d)(1). Yes, the Rule pays lip service to that

concept. EPA Opp. 49. But remember: before EPA will free the States to tailor standards

to remaining useful life and other factors, States must now show “fundamental differences

between [(1)] the circumstances of a particular facility and the information” EPA thinks it

has already considered and (2) the information now relied on by the States. App. 176a.

Worse still, the Rule contemplates that States’ discretion becomes relevant in only

“exceptional circumstances.” App. 12a, 104a n.674. Congress never said it wanted States

to be so limited. See, e.g., Jimenez-Castro v. Sessions, 750 F. App’x 406, 408 (6th Cir. 2018)

(explaining, in the immigration context, that “[t]he exceptional-circumstances standard sets

a high bar that will be met in only rare cases” (cleaned up)).

EPA tries to solve this self-created problem by saying that its new restrictions on

the use of “remaining useful life and other factors” arise from another, separate EPA rule.

EPA Opp. 49-50; see also N.Y. Opp. 22. Yet once more, EPA never explains how it can

make the same legal error twice and answer for it once; it has no legal authority for such an

idea. The unlawful restrictions are operating here and harming the States here, so relief is

appropriate here, too. Some other Respondents say that Congress couldn’t have meant to

provide the States broad discretion when it told EPA that it “shall permit” that discretion.

N.Y. Opp. 23 (citing 42 U.S.C. § 7411(d)(1)). But “shall” means “shall”—it is a “language of

command.” Escoe v. Zerbst, 295 U.S. 490, 493 (1935). And even if EPA could impose a few

reasonable limits on States’ discretion, the limits it employed here aren’t reasonable given

that they allow only for rare discretion. To borrow Respondents’ example, N.Y. Opp. 23, it

would be as if a prosecutor could satisfy an instruction that he “shall permit” defense

counsel to examine “tangible objects” by making those objects available for five short

minutes on a random day.

EPA’s decision to tie the States’ hands via the Rule is especially bad because the

Rule concerns power production. Regulating utilities, including electricity generation, is

“one of the most important … functions traditionally associated with the police power of the

States.” Ark. Elec. Co-op Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 377 (1983); see

also Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 568-69

(1980). States have “traditional authority over the need for additional generating capacity,

the type of generating facilities to be licensed, land use, ratemaking, and the like.” Pac.

Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212

(1983).

They also have wide discretion when modifying existing energy systems or

exploring new ones. See Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150, 165-66 (2016).

So if there’s anywhere EPA should’ve tread carefully, it’s here. Instead, it stomped a hole

right through the center of the State’s traditional realm—just as it has tried to do before.

Thus, the Court should stay the Rule to ensure that States retain their

congressionally contemplated central role under Section 111.

The Major-Questions Doctrine Confirms Again That This Rule Is

Unlawful.

As the States explained before, “EPA’s venture back into major-questions territory

is another reason the States are likely to win.” Appl. 21.

Everyone correctly focuses in on West Virginia v. EPA. That case described

how EPA had long employed measures under Section 111 that would “caus[e] plants to

operate more cleanly.” 597 U.S. at 706 (emphasis added). In contrast, the unlawful plan at

issue in West Virginia required coal-fired facilities to “reduce their own production of

electricity[] or subsidize increased generation by natural gas” and other sources. Id. Using

the “ancillary” “gap filler” of Section 111(d) for such broad-sweeping aims went too far. Id.

at 710, 724. If EPA was going to “restructure the American energy market,” then it first

needed a clear statement from Congress that it was empowered to do so. Id. at 724. Yet

nothing in the statute suggested that Congress wanted EPA to declare “that it would be

‘best’ if coal made up a much smaller share of national electricity generation.” Id. at 728.

Certainly, nothing suggested that Congress wanted to push that view by “forcing coal

plants … to cease making power altogether.” Id.; see also id. at 730-31 (resisting EPA’s

claim of authority to “require a large shift from coal to natural gas” and other sources).

So even with reassurances from EPA that this shift would be “practically feasible”

without “exorbitant” energy price increases, West Virginia held that EPA simply couldn’t

stretch Section 111 as far as it wanted. West Virginia, 597 U.S. at 729. The statute creates

neither a national energy-regulation scheme nor a greenlight for national command and

control. “The basic and consequential tradeoffs involved in such a choice are ones that

Congress would likely have intended for itself.” Id. at 730. EPA thus could not “direct

existing sources to effectively cease to exist.” Id. at 728 n.3. And it couldn’t use more

roundabout ways of pushing coal out of the way, either; the Court “doubt[ed],” for instance,

that EPA could “simply requir[e] coal plants to become natural gas plants.” Id.

West Virginia forecloses the Rule because it once more tries to do what the Court

said EPA could not do: squeeze out coal and push production to EPA-favored sources. To

be sure, EPA did not announce the endgame in the same way it did in West Virginia’s Clean

Power Plan. EPA at least dresses this effort in the trappings of “technology-based”

standards. But West Virginia never announced that EPA may do whatever it wishes so

long as it uses technology or presses measures at an individual source. Contra EPA Opp.

14-15; Power Co. Opp. 7. Rather, the Court probed the “nature of the question” and the

“highly consequential power” at stake. West Virginia, 597 U.S. at 721, 724. It was the

“scope, cost, and political salience” of EPA’s efforts that mattered, not the specific means

employed. Biden v. Nebraska, 143 S. Ct. 2355, 2384 (2023) (Barrett, J., concurring). And

those factors remain the same here as they were in West Virginia.

Perhaps recognizing that all the same indicia of a major-questions case are

back again, EPA tries to either recast them, minimize them, or ignore them.

Cost is one example. The States have never suggested that cost alone is enough to

present a major question, contra EPA Opp. 21, but it’s a relevant factor. See Ala. Ass’n of

Realtors v. DHHS, 594 U.S. 758, 764 (2021) (citing program’s “billions” in “economic

impact”); King v. Burwell, 576 U.S. 473, 485 (2015) (same). And EPA never fights the

reality that its Rule will again impose “billions” in compliance costs, not even to mention

the broader economic impact that will come from pushing the coal industry into the grave.

Instead, it shrugs, remarking (without authority) that Congress “surely contemplated”

those costs might arise. EPA Opp. 21. Yet the major-questions doctrine isn’t concerned

with dreaming up what Congress might’ve imagined. Cf. West Virginia, 597 U.S. at 723

(explaining that a “merely plausible textual basis for the agency action” is not enough to

empower it to address a major question). It’s about what Congress clearly said.

The issue EPA purports to tackle in the Rule also remains just as politically charged

as it was two years ago. Everyone agrees “[c]limate change has staked a place at the very

center of this Nation’s public discourse.” Nat’l Rev., Inc. v. Mann, 140 S. Ct. 344, 348 (2019)

(Alito, J., dissenting from denial of certiorari). The present administration itself has

claimed that climate issues are among the most politically significant of our time. See, e.g.,

Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring

Science To Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021). “[E]arnest and

profound debate” like that seen on this issue provides another signal that the question EPA

seized is major. Gonzales v. Oregon, 546 U.S. 243, 249 (2006).

And EPA is wrong to think that Congress somehow defused the issue by passing a

few renewable energy laws. EPA Opp. 45 (citing the Energy Policy Act of 2005 and the

Inflation Reduction Act of 2022); see also N.Y. Opp. 19 (relying on the IRA). At most, those

statutes show that Congress was interested in testing the waters when it came to carbon

capture. But Congress funds underdeveloped and even experimental measures all the time;

a little funding doesn’t signal that Congress wants the funded technology to be imposed

across an entire industry no matter its cost or efficacy. See 42 U.S.C. § 15962(i)(1) (limiting

how EPA can consider Energy-Policy-Act-funded technology in evaluating whether a

system is “adequately demonstrated” under Section 111). Indeed, it has rejected measures

to impose carbon capture or shutter fossil-fuel fired facilities. See, e.g., H.R. 2519, 117th

Cong. (2021); H.R. 4535, 114th Cong. (2016); S. 4280, 117th Cong. (2022).

Even more obviously, the Court shouldn’t follow EPA’s lead in taking a single floor

statement from a single representative as a congressional endorsement of its work. EPA

Opp. 46; Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 385 (2012) (explaining why “the

views of a single legislator” aren’t that helpful). A 2022 statement from a representative is

particularly little help in understanding the CAA, passed 50 years earlier. See United

States v. Clark, 445 U.S. 23, 32 (1980). And if this case is to become a battle of congressional

statements, then there’s other strong evidence to the contrary. See Press Release, Joe

Manchin, Manchin Sets the Record Straight on Coal and Inflation Reduction Act (Aug. 4,

2022), https://bit.ly/3WSX6Q9 (quoting key IRA supporter Senator Joe Manchin: “The

Inflation Reduction Act does not provide any new authority for EPA to shut down coal

plants or to require ‘generation shifting.’ The text does not grant EPA any new authority

to do anything to power plants or coal facilities.”).

Cost and political salience aside, the Rule’s scope seals the deal when it comes to the

major-questions doctrine. Section 111(d) is the same as it always was: an ancillary, limited,

“little-used backwater.” West Virginia, 597 U.S. at 730. But once more, EPA is trying to

use it to push coal out in favor of other sources. Appl. 22-23. EPA even greases the skids

by giving plants a compliance avenue consisting of early retirement. App. 19a, 172a. EPA

says some of those pushed-out plants can keep operating for a little while longer if they also

become gas plants, App. 14a-15a—a scenario the Court expressly anticipated and

“doubt[ed]” in West Virginia, 597 U.S. at 728 n.3. But while all this presents an existential

attack on the industry, EPA is indifferent. The Clean Power Plan at least tried to balance

“how much of a switch” in generation was “practically feasible.” Id. at 729. Now, EPA does

not disclaim plant closures.

All this asks too much. EPA wants to rejigger an “essential” industry, Puerto Rico

v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 132 (2016) (Sotomayor, J., dissenting), based

on hopes and projections. That massive shift in turn affects most every American—“a

significant encroachment” by any measure, Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S.

109, 117 (2022); see also West Virginia, 597 U.S. at 745 (Gorsuch, J., concurring) (noting

how this industry is “among the largest in the U.S. economy, with links to every other

sector”). Congress did not clearly authorize EPA to set standards that “direct existing

sources to effectively cease to exist.” Id. at 728 n.3. Nor did it permit the agency to decide—

directly or indirectly—“how much coal-based generation there should be over the coming

decades.” Id. at 729.

But EPA tries to find a life raft in a single word from a single footnote in West

Virginia. There, the Court distinguished between market reconfiguration and “a rule that

may end up causing an incidental loss of coal market’s share.” West Virginia, 597 U.S. at

731 n.4.

EPA tries to shoehorn the Rule into the Court’s latter caveat using fuzzy

statements that the Rule “may” cause some “incremental reduction in the number of coal

plants” just because those plants might not “choose to remain in operation.” EPA Opp. 18;

see also N.Y. Opp. 20; Power Co. Opp. 7-8 (similar, citing losing argument in West Virginia).

Two things say otherwise.

First, there’s nothing “incremental” or “incidental” about pervasive, market-wide

closures. Appl. 22. Something is “incidental” when it has only a “minor role.” Incidental,

BLACK’S LAW DICTIONARY (12th ed. 2024). In other contexts, courts have said that items

aren’t incidental when they are a “great and substantial” part of an activity, Hartford Fire

Ins. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 555 (2d Cir. 2000), when

they are “significant … for [their] own sake,” Stevens v. United States, 302 F.2d 158, 163

(5th Cir. 1962), or when they are “central” to a relationship, Rowe v. Educ. Credit Mgmt.

Corp., 559 F.3d 1028, 1034 (9th Cir. 2009). The plant closures here meet all those standards;

no one can rightly say the impact is “minor.” EPA seems to instead believe that anything

that’s not the first intended consequence of an act is merely incidental. EPA Opp. 16-17;

see also EPA Opp. 20 (referring to “forbidden intent”). But the consequences of an act can

be more than incidental even when they’re not specifically intended. Fishing with dynamite

might be primarily intended as a quick and easy way to catch something to eat—but nobody

would call it an “incidental” effect when the lakebed gets wrecked in the process.

Second, there’s no voluntary choice happening here. When Congress withholds

power to act directly, it also withholds power to act indirectly (or coercively). Students for

Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).

In fact, the Court has long “repudiated” the idea that “the national government may do

indirectly what it cannot do directly.” Nat’l Bank v. United States, 101 U.S. 1, 4 (1879).

The Court must instead “consider the natural operation” of the Rule. Bailey v. Alabama,

219 U.S. 219, 244 (1911). And the “natural operation” here is that plants are responding to

conditions that are directly and irrefutably created by the Rule itself. It is “economic

dragooning that leaves the [plants] with no real option but to acquiesce.” Nat’l Fed’n of

Indep. Bus. v. Sebelius, 567 U.S. 519, 582 (2012) (Roberts, C.J.).

In the end, a little clear-eyed realism is enough to resolve this stay motion.

EPA should not be permitted to ignore what the Court said just by reciting a few different

words on the way to the same place the Court has already said it cannot go. And indeed,

EPA and its supporters have tried to use semantics in this way to rationalize otherwise

unjustifiable actions before. See, e.g., Joseph Goffman & Laura Bloomer, Disempowering

the EPA: How Statutory Interpretation of the Clean Air Act Serves the Trump

Administration’s Deregulatory Agenda, 70 CASE W. RSRV. L. REV. 929, 943-44, 950-51

(2020) (current EPA Air Office Director arguing that “generation-shifting” is just a

standard “pollution-control program[]”). If West Virginia is to mean anything, then the

Court cannot endorse this repeat performance.

II.

The States Will Be Irreparably Harmed Without A Stay.

When it comes to irreparable harm, the States and their co-Petitioners showed

plenty. But EPA and its fellow Respondents largely respond by either fixating on the

Rule’s compliance deadlines or refusing to grapple with the specific evidence the States

presented. That’s a failing strategy.

Start with the relevant period for any harms that would arise without a stay.

According to EPA, it would be “premature” for this Court to consider any harm that might

arise between the time of a decision in the D.C. Circuit and the end of review in this Court.

EPA Opp. 55; see also Power Co. Opp. 14. Yet this Court often grants stays through the

disposition of any timely petition for certiorari even while proceedings are still advancing

below. See, e.g., Labrador v. Poe, 144 S. Ct. 921 (2024); Garland v. Vanderstok, 144 S. Ct.

44 (2023); Danco Lab’ys, LLC v. All. for Hippocratic Med., 143 S. Ct. 1075 (2023). That

usual practice shows this Court is concerned with harm through the whole appeals

process—even when an administrative rule is involved. See Ohio v. EPA, 144 S. Ct. 2040,

2058 (2024); Nat’l Fed’n of Indep. Bus., 595 U.S. at 121; West Virginia, 577 U.S. at 1126. It

seems particularly appropriate to account for this Court’s review when it comes to this case,

seeing as how the Court intervened both times that earlier iterations of the Rule came up.

In the face of that ordinary relief, EPA suggests only that the Court would be in a

“better position” to decide on any pre-certiorari harms later because it might benefit from

hearing more from the D.C. Circuit. EPA Opp. 55-56. That’s true as far as it goes, but it

doesn’t decide whether a stay should issue now. Stay or no stay, the D.C. Circuit will still

have a chance to decide these issues on a fully briefed, complete record, and it will still be

able to “evaluate the merits and certworthiness of [the States’] claims.” Id. at 56.

In truth, the D.C. Circuit could have “evaluate[d] the merits and certworthiness” of

these claims already, but it instead chose to issue a summary order that hampers review

now. The States should not be forced to come back to the Court repeatedly merely because

the lower court declined to provide much of a reasoned decision when the States asked the

first time. And as a practical matter, EPA’s approach would create a whiplash effect that

would only multiply the parties’ harms. States, for instance, would be compelled to launch

into regulatory efforts, only to perhaps pause them again (or perhaps not), only to perhaps

resume them again (or perhaps not). Some Respondents outright invite this compliance

back-and-forth. See N.Y. Opp. 35. In contrast, Applicants’ request—allowing orderly

resolution before the train is down the tracks—avoids those problems of confusion and

chaos.

So the Court should consider harm through the duration of any decision on a petition

from the States to this Court.

Looking, then, to that relevant “near-term,” it’s plain enough that the States

and others will suffer real, irreparable harms in all three of the forms that EPA addresses.

EPA Opp. 51-56.

Take first the industry’s costs of compliance. Recall how changed bargaining

positions in view of the Rule are already “fundamentally disrupting” utilities. App. 680a682a. Companies face “immediate decisions” that “cannot be delayed.” App. 382a; see also

App. 485a-486a, 492a. Even sources that have started working to comply with the Rule

already worry that they won’t make the Rule’s deadlines. App. 518a-519a, 521a, 525a-527a,

609a. All in all, substantial evidence shows that EPA is wrong in maintaining that no one

needs to be in a hurry to comply. See Appl. 29-31. The money spent on these early efforts

will be unrecoverable thanks to sovereign immunity. And if the States’ home-state energy

producers do miss those deadlines, then States could in turn face spillover effects from

reduced energy and weakened economies—irreparable harms in every way.

Cf.

California v. Am. Stores Co., 492 U.S. 1301, 1307 (1989) (O’Connor, J., in chambers)

(finding harm to a state’s market justified stay).

EPA responds by leaning on its own projections that industry will have to do only

“preliminary” and “conceptual” tasks. EPA Opp. 52. Even putting aside the States’

substantial contrary evidence, EPA’s own statements don’t get it very far. EPA quotes

its finding that the costs for these tasks will be “substantially less than other components

of the project schedule.” Id. But without knowing how much EPA thinks those other

components will cost, it’s hard to know where EPA gets the idea that even the initial costs

will be “limited.” After all, if the later stages cost billions (as is, in fact, the case, see, e.g.,

NACCO Appl. 24-32), then even an earlier stage that racks up hundreds of millions could

be accurately described as “substantially less.” And as a matter of plain sense, even if the

need to plan and conceptualize were the only real cost, those costs could still be enormous

when the planning requires producers to create vast new capture, transport, and storage

systems on a previously unheard-of scale. And those substantial sums are still irreparable.

Ohio, 144 S. Ct. at 2053.

Left with the unavoidable reality that the Rule promises serious and irreparable

costs, EPA resorts to speculation. The costs won’t “necessarily be wasted,” the agency

imagines, because the D.C. Circuit might remand and allow the agency to re-implement

carbon capture as a best system of emission reduction (albeit on a different timetable or

capture rate), which might in turn allow plant owners to use any already completed

planning work. EPA Opp. 52. But EPA never explains why carbon-capture of a different

form would be the next best choice to what it did here. If this case gets remanded, then

EPA will need to reevaluate whether other technological options offer faster, better

results within the confines of the statute. And even if carbon capture in some modified

form did prove to be EPA’s next choice, EPA assumes—without explanation—that

planning for one carbon capture system is interchangeable with another. Assumptions

stacked on assumptions don’t justify denying relief.

EPA and other Respondents are also wrong to reject the Applicants’ evidence on

compliance costs out of hand merely because EPA incorrectly found, in promulgating the

Rule, that compliance dates provided a long enough runway to avoid real harm. See EPA

Opp. 51, 54-55; Power Co. Opp. 14; N.Y. Opp. 34. The Rule predicts nothing about

individual businesses’ and States’ costs—much less rebut the movant-specific harms the

record shows are “likel[y].” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).

Even so,

EPA specifically believes that Section 111 renders its contrary judgments on timelines

and costs “controlling” in all but the rarest of circumstances. EPA Opp. 54. That’s an odd

choice given that these energy-centric logistical judgments—implicating questions of

“electricity transmission, distribution, and storage”—are outside EPA’s real area of

expertise. West Virginia, 597 U.S. at 729; cf. Texas v. EPA, 829 F.3d 405, 432 (5th Cir.

2016) (noting how “EPA has no expertise on grid reliability”). There’s also no hint in

Section 111 that Congress meant to constrain a court’s ability to grant equitable relief in

some unusual way. “Absent the clearest command to the contrary from Congress, federal

courts retain their equitable power to issue injunctions in suits over which they have

jurisdiction.” Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (emphasis added).

No, in pressing this argument, EPA once again asserts authority it does not have.

“It is the responsibility of this Court, not the administrative agency, to … find facts

relevant to, irreparability of harms or prejudice to any party or to the public interest

through grant or denial of injunctive relief.” PGBA, LLC v. United States, 60 Fed. Cl. 567,

568 n.1 (2004). For good reason: “If the federal government’s experts were always entitled

to deference concerning the equities of an injunction, substantive relief against federal

government policies would be nearly unattainable, as government experts will likely attest

that the public interest favors the federal government’s preferred policy.” Sierra Forest

Legacy v. Sherman, 646 F.3d 1161, 1186 (9th Cir. 2011). EPA’s cases don’t say otherwise.

Hedges just held that a court couldn’t equitably enforce a void contract; that’s consistent,

of course, with the notion that an applicant must show some likelihood of success on the

merits. Hedges v. Dixon County, 150 U.S. 182, 192 (1893). American Electric Power, 564

U.S. 410, isn’t about equitable relief at all. And South Bay rested chiefly on a locality’s

broad powers to police public health and safety; it also dealt with the need for a

“significantly higher justification than a request for a stay” when an applicant sought an

affirmative injunction at a time when local officials were “actively shaping their response

to changing facts on the ground.” S. Bay United Pentecostal Church v. Newsom, 140 S.

Ct. 1613, 1613-14 (2020) (Roberts, C.J., concurring in denial of application for injunctive

relief).

Lastly, one group of Respondents seems to argue that no relevant compliance costs

arise in the near-term because carbon capture “will … work,” so those making “immediate

and costly decisions” are just creating self-imposed harms from “voluntary choices.” N.Y.

Opp. 32-33. The argument is hard to follow. EPA concedes that implementing carbon

capture would give rise to costs even if one were to assume the technology works. See

App. 219a (estimating present value of compliance costs at $19 billion in 2019 dollars at a

2% discount rate). If the Rule is unlawful, these compliance costs are lost all the same.

And it is hardly a “voluntary” choice to make a rational judgment, compelled by costs and

other circumstances the Rule creates directly, that continuing business as usual is not an

option anymore.

Second, EPA improperly downplays the real risks to our energy grid. Rule-

driven plant closures will be irreparable. Reliability issues are at the breaking point—

prematurely “losing even one or two” more plants would have sobering consequences.

App. 777a-778a. EPA promises plants won’t be compelled to close sooner before 2032,

EPA Opp. 53, but here it too relies too much on the notion that plants “choos[ing]” to close

because of the practical force of the Rule are somehow distinguishable from plants closing

because of the legal force that arises a few years from now. Legally, that distinction is not

meaningful. And factually, EPA ignores that planning in this sector extends at least a

decade. Appl. 29-30. So making and implementing operational decisions—including

retirement decisions—starts today, not in 2032. See App. 717a-725a; see also App. 173a

(explaining that retirement elections must be “enforceable requirement[s]”)

Certain Respondents envision that these risks can be ameliorated by “compliance

options and flexibilities” that don’t turn out to be supported by facts. N.Y. Opp. 29, 31-32.

For example, after questioning West Virginia’s understandings of its own facilities, New

York and others tell the Court that West Virginia’s coal-fired power plants can operate for

a few more years by co-firing with “West Virginia’s plentiful natural gas supply and 16,000mile pipeline network.” N.Y. Opp. 29. But Respondents forget that West Virginia faces a

serious “lack of pipeline takeaway capacity” already; the newly opened Mountain Valley

Pipeline, for example, is already “fully subscribed under long-term, binding contracts.”

Richard McDonough, Challenges to Growth Remain Key Story in Appalachian Basin,

PIPELINE & GAS J. (May 2024), https://bit.ly/3yLDBkt. That capacity constraint would

make it hard to feed coal-fired facilities. The same set of Respondents say that a coal-fired

unit “may be eligible for a less stringent standard under a remaining useful life analysis,”

saving it from early retirement. N.Y. Opp. 29; but see N.Y. Opp. 38 (arguing that

remaining useful life should not be “invoked across the board for all sources”). But they

forget that EPA has significantly tightened the criteria for considering remaining useful

life, making eligibility only a distant prospect. See supra Part I.A.2. And they believe that

the Rule “allow[s] for continued (or greater) operation of a power plant if necessary to

maintain grid reliability. N.Y. Opp. 32. But read the Rule: it offers only a (1) “short-term

reliability mechanism” for “system emergenc[ies]” and (2) a temporary “reliability

assurance mechanism” for individual plants that must end with the plant in question

permanently shuttering. 40 C.F.R. § 60.5740b(a)(12)-(13). Considered carefully, then,

these options aren’t “flexibilities” at all.

Respondents also offer a variety of reassurances that amount to unvarnished hope.

They tell us state regulators will fix it—though they don’t say what those regulators will

do. N.Y. Opp. 27. They say those same regulators could just refuse to approve a plant

retirement—apparently suggesting that States will compel facilities to remain open even

when they’re no longer economically viable. Id. at 29. They argue that new technologies

like battery storage or “enormous amounts of replacement capacity” from green energy

projects will bridge the gap—but they give no details about how much those technologies

can offer, when they’ll come online, where they are, or anything else of the sort. Id. at 30,

33. And they say that new gas plants are coming under the Rule—even though they can

cite only a handful of projects in the early planning stages. Id. at 30-31. None of these

wishes should foreclose relief. If speculation isn’t enough to justify issuing injunctive

relief, then it shouldn’t be enough to justify denying it, either. See, e.g., FTC v. Food Town

Stores, Inc., 539 F.2d 1339, 1346 (4th Cir. 1976).

Lastly, some Respondents essentially respond to these serious harms by saying

“good riddance” to coal-fired plants. See N.Y. Opp. 27 & n.6; id. at 30 n.7. In their eyes,

coal is on its way out, and it’s not reliable, anyway. Id. The States here would question

that view. See, e.g., C. Boyden Gray, Climate Realism and a Positive Vision for American

Energy, 21 GEO. J.L. & PUB. POL’Y 149, 166 (2023) (“Coal and nuclear power represent

stable and reliable baseload power. But the wind, solar, and natural gas energy that have

replaced them are far less stable.”). But it’s ultimately beside the point. In the end, the

relevant point is that the Rule is pushing premature retirements—so even if coal-fired

power has been declining, the Rule forces plants to shutter faster and more destructively

than markets would have otherwise. And as for reliability, at least up to this point, even

those who supported carbon capture were compelled to recognize that “[c]oal will continue

to serve as the primary fuel source in baseload power generation because of its abundance

and relative low cost.” Cyrus Zarraby, Regulating Carbon Capture and Sequestration: A

Federal Regulatory Regime to Promote the Construction of a National Carbon Dioxide

Pipeline Network, 80 GEO. WASH. L. REV. 950, 957 (2012).

Lastly, EPA barely engaged with a third category of harm: the significant

compliance costs that the States themselves will bear for implementing this new

regulatory regime.

States will “incur unrecoverable compliance costs,” Kentucky v. Biden, 57 F.4th

545, 556 (6th Cir. 2023), “start[ing] immediately,” App. 389a; see also, e.g., App. 554a, 557a558a; App. 853a-854a. Some Respondents dismiss these costs as reasonable. Enviro. Opp.

20-21; N.Y. Opp. 36-37. They do that in part by myopically focusing on just one aspect of

the work, the onerous remaining-useful-life analysis that EPA has contrived. See N.Y.

Opp. 37. But the experienced agencies doing all the work say the costs that result are

“immense,” App. 349a; “significant,” App. 376a; App. 442a; App. 879a; and “substantial,”

App. 414a; App. 531a. Apart from its technical complexity, the Rule requires state

agencies, utilities, grid operators, and federal regulators to coordinate extensively. See,

e.g., App. 830a, 835a; App. 884a-885a. Wrangling these many interests—and getting

legislative sign-off—will take at least a year beyond ordinary rulemaking calendars. App.

429a; App. 735a-736a. Below, even EPA’s Assistant Administrator for the Office of Air

and Radiation was forced to admit that implementing the Rule will be uniquely

complicated. See Decl. of Jospeh Goffman, ¶ 86, West Virginia v. EPA, No. 24-1120 (D.C.

Cir. filed June 11, 2024), ECF No. 2059170-2, at 51 (“[I]t is true that developing plans for

the power sector may take more time than other state planning under CAA section 111(d)

because it involves elements that may be lacking in other sectors.”). And the work is made

unnecessarily difficult by EPA’s insistence on throwing up barriers to State discretion, see

supra Part I.A.2; if States want to make a run at overcoming those obstacles, they’ll have

to pour in even more time and money.

Factors like these explain why the States’ specific costs dwarf EPA’s cumulative

$12 million guess. See, e.g., App. 338a; App. 556a, 557a; App. 664a; App. 863a-865a.

Although some Respondents attack West Virginia’s numbers as too high, N.Y. Opp. 37-38,

West Virginia was the only State to submit a plan under the last set of rules, App. 52a—

so its agencies know what to expect. And Respondents critique other States based on an

apparent misunderstanding of what they said. For instance, New York faults North

Dakota for claiming that remaining-useful-life review will be required at every facility,

which will create big costs. N.Y. Opp. 38. New York maintains this figure must be too

high because remaining-useful-life factors apply “on a case-by-case basis,” not “across the

board.” Id. But that’s the point: North Dakota can only discern when a facility’s standards

might require adjustment for remaining useful life and other factors by first examining

each facility—a costly endeavor precisely because it is “case-by-case.” And anyway, even

“low” numbers are significant here because they often represent a “substantial portion”

of department resources for States with budgets far lower than the federal government’s.

App. 881a-882a. So even if the standard were whether costs are “unusual and severe,”

N.Y. Opp. 36, the States here would easily meet that standard. But see Texas, 829 F.3d at

433-34 (“[W]hen determining whether injury is irreparable, it is not so much the

magnitude but the irreparability that counts.” (cleaned up)).

EPA is wrong to contend “administrative costs” from “changing” federal programs

rarely justify equitable relief. Ledbetter v. Baldwin, 479 U.S. 1309, 1310 (1986) (Powell,

J., in chambers). Particularly where those “administrative burdens” and “expanding

employment” costs tally up to millions per State, District of Columbia v. U.S. Dep’t of

Agric., 444 F. Supp. 3d 1, 33 (D.D.C. 2020), the Court should intervene. Nothing about the

CAA’s judicial review process changes that idea, either. Contra EPA Opp. 54. If it did,

then States could never claim harm from an administrative action, as judicial review is

available in most every administrative case because of the Administrative Procedure Act

or other subject-specific review provisions. Contra Nken, 556 U.S. at 433 (explaining how

the Court is generally “loath to conclude that Congress would, without clearly expressing

such a purpose, deprive [an appellate court] of its customary power to stay orders under

review” (cleaned up)). Yet no court has ever held that States should be forced to uniquely

suffer avoidable burdens in that way. Quite the opposite: the Court recently cited the

States’ non-recoverable compliance costs in issuing a stay under the CAA. Ohio, 144 S.

Ct. at 2053. And though some Respondents fret that this standard approach will turn stays

into “commonplace event[s],” N.Y. Opp. 36, that worry would only manifest if EPA and

other agencies routinely violate the law.

EPA also dismissively tells States they can avoid any harm by opting out of the

state plan submission process for now. EPA Opp. 54. The States already explained why

this philosophy shows no respect for either state sovereignty or Congress’s specific

intention in the CAA to keep States in a key position of control. Appl. 35. EPA never tries

to address those ideas. Even if the States could try to avoid crushing costs by allowing a

federal plan to go into place for a time, that federal takeover “necessarily impairs [the

States’] sovereign interests in regulating their own industries and citizens—interests the

[Clean Air] Act expressly recognizes.” Ohio, 144 S. Ct. at 2053. The States should not be

forced to bear one kind of harm to avoid another.

All in all, when an administrative rule causes States to suffer unstable power

grids, higher energy prices, unrecoverable compliance costs, and threats to their own

sovereignty, irreparable harm is manifest. See, e.g., West Virginia v. EPA, 90 F.4th 323,

331 (4th Cir. 2024); Texas v. EPA, No. 23-60069, 2023 WL 7204840, at *10-11 (5th Cir. May

1, 2023); Kentucky v. EPA, No. 23-3216, 2023 WL 11871967, at *4 (6th Cir. July 25, 2023);

Texas, 829 F.3d at 433-34. But there’s one last type of harm that no Respondent even

bothers to address: the harm to this Court’s ultimate ability to award effective relief. As

the States explained in their application, the Court has encountered a situation more than

once before where EPA forces entities into compliance, effectively nullifying the parties’

right to relief from a rule because the damage had been done. See Appl. 31 (discussing

Michigan v. EPA, 576 U.S. 743 (2015)). That danger lurks here, too. Without a stay,

irreversible decisions will be made now, and “a favorable judgment might well be useless.”

Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975). That additional factor would warrant

relief all on its own. “The choice for a reviewing court should not be between justice on

the fly or participation in what may be an idle ceremony.” Nken, 556 U.S. at 427 (cleaned

up).

III.

A Stay Would Serve The Public Interest And The Balance Of The Equities.

Lastly, the public interest—and other interests—also support a short stay of the

Rule. Respondents’ arguments confirm it.

EPA and other Respondents insist that the Rule should go into effect immediately

because of climate change. See, e.g., EPA Opp. 57. “This argument is obviously colored by

[EPA]’s view of the merits.” R.J. Reynolds Vapor Co. v. FDA, 65 F.4th 182, 195 (5th Cir.

2023). But as the States have already explained, Appl. 38, concern over climate change can’t

justify unlawful agency action. “[O]ur system does not permit agencies to act unlawfully

even in pursuit of desirable ends.” Ala. Ass’n of Realtors, 594 U.S. at 766. And “EPA’s

well-intentioned policy objectives with respect to climate change do not on their own

authorize the agency to regulate. The agency must have statutory authority for the

regulations it wants to issue.” Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 460 (D.C. Cir.

2017) (Kavanaugh, J.). Elsewhere, even the federal government has recognized that “it has

a duty to uphold … the substantive and procedural standards and limitations Congress has

prescribed for the Executive Branch and its agencies to follow in addressing climate

issues.” Reply in Supp. of Mot. for a Stay 9, Juliana v. United States, No. 6:15-cv-01517AA (D. Or. Filed Feb. 15, 2024), ECF No. 589. So too here. Were it otherwise, agencies

could act unilaterally anytime they perceived a problem that Congress has—for whatever

reason—not chosen to give them the power to address. Yet “no public interest [lies] 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).

Indeed, considering the lack of “certainty of the harm being counteracted or the

effectiveness of the proposed steps,” “the public interest almost never will militate in favor

of denying a stay” of a rule “conceived as the initial step in combatting a perceived longterm threat” like “global climate change.”

Ronald A. Cass, Staying Agency Rules:

Constitutional Structure and Rule of Law in the Administrative State, 69 ADMIN. L. REV.

225, 250 (2017). This case isn’t the rare exception. EPA does not even argue that the Rule

will serve as a tipping point or the like in the agency’s efforts against climate change.

Instead, it only suggests that the Rule “makes a meaningful contribution toward addressing

that problem.” EPA Opp. 57. The vague suggestion of good things is not enough to

overcome the definite, ascertainable harms from the Rule. That’s especially true in the

near term, when emission reductions won’t start for years (and other measures are already

cutting emissions apart from the Rule, Appl. 38-39), but the compliance burdens start right

away.

Some Respondents also think the Court should put the Rule on the fast track

because “standards for power plants are long overdue.” Enviro. Opp. 22; see also N.Y. Opp.

39-40. But any delays resulted from EPA’s own efforts to overextend itself beyond the

limits of its authority. See, e.g., EPA Opp. 14 (describing how the “Clean Power Plan

departed significantly” from the statutory “framework”). And as the States flagged before,

Appl. 38, EPA’s own slower pace in adopting the Rule here belies any notion that it saw a

particular need for speed. Meanwhile, no one explains why this purportedly time-based

public harm remains a real concern now that the D.C. Circuit has chosen to expedite merits

briefing below. EPA Opp. App. 4a-5a; see also, e.g., Doe v. Gonzales, 546 U.S. 1301, 1309

(2005) (Ginsburg, J., in chambers) (refusing to vacate stay given that lower court was

“swiftly proceeding” to a final decision). And if the Rule is indeed unlawful, then starting a

wide-scale compliance effort immediately only to grind it to a halt later and start all over

again might only impair the agency’s ability to get meaningful, lawful standards in place.

Finally, concerns about grid reliability and energy prices favor the States, not

Respondents. Again, the States have already described how experts on the ground think

the Rule will drive out significant grid capacity (particularly baseload power), making

electricity less predictable and more expensive. See Appl. 26-29; see also, e.g., La. PSC.

Resp. 3-7 (detailing why the Rule “will immediately begin undermining the reliability of the

electricity grid”).

Respondents’ own authorities confirm that “shifts in the energy

generation mix that lower greenhouse gas (GHG) emissions” are creating new

“vulnerabilities” in energy systems.

U.S. GLOBAL CHANGE RSCH. PROGRAM, FIFTH

NATIONAL CLIMATE ASSESSMENT 5-4 (2023) (cited at N.Y. Opp. 40). But in trying to flip

the narrative, Respondents rely on a chain of suppositions: greenhouse gas releases during

the period of stay will “contribute” to “extreme weather events” that will then cause power

outages that will then cause increased costs to power companies. N.Y. Opp. 40; but see, e.g.,

FERC,

One-Time

Informational

Reports

Extreme

Weather

Vulnerability

Assessments; Climate Change, Extreme Weather, and Electric System Reliability, 87 Fed.

Reg. 39414, 39426 (July 1, 2022) (Danly, Commissioner, concurring) (“That the policies of

… government bodies are undermining reliability is far more obvious than the question of

whether, and how, the weather is getting worse and what specific effects that worsening

weather might have on the stability of the electric system.”). Suppositions aren’t evidence.

And note how the Rule does not purport to strengthen grid reliability or resiliency.

Respondents don’t explain how further burdening energy producers with unlawful

regulation will better equip them to deal with any impending challenges from climate

change. It won’t.

So the public interest—and the general balance of the equities—favors the States

here, too.

CONCLUSION

This Court should stay the Rule pending resolution of the merits, including through

the resolution of any petition for certiorari.

Respectfully submitted.

THEODORE E. ROKITA

ATTORNEY GENERAL

PATRICK MORRISEY

ATTORNEY GENERAL

/s/ James A. Barta

James A. Barta

Solicitor General

/s/ Michael R. Williams

Michael R. Williams

Solicitor General

Counsel of Record

Jenna Lorence

Deputy Solicitor General

Office of the Attorney General

of Indiana

302 W. Washington St.

Indiana Government Center South

5th Floor

Indianapolis, IN 46204

Phone: (317) 232-0709

james.barta@atg.in.gov

Counsel for State of Indiana

Spencer J. Davenport

Assistant Solicitor General

Office of the Attorney General of West

Virginia

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

(304) 558-2021

michael.r.williams@wvago.gov

Counsel for State of West Virginia

STEVE MARSHALL

ATTORNEY GENERAL

TREG TAYLOR

ATTORNEY GENERAL

/s/ Edmund G. LaCour Jr.

Edmund G. LaCour Jr.

Solicitor General

/s/ Garrison Todd

Garrison Todd

Assistant Attorney General

Office of the Attorney General

State of Alabama

501 Washington Avenue

P.O. Box 300152

Montgomery, AL 36130-0152

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Alaska Department of Law

1031 W. 4th Ave., Ste. 200

Anchorage, AK 99501

(907) 269-5100

garrison.todd@alaska.gov

Counsel for State of Alaska

Counsel for State of Alabama

TIM GRIFFIN

ATTORNEY GENERAL

ASHLEY MOODY

ATTORNEY GENERAL

/s/ Nicholas J. Bronni

Nicholas J. Bronni

Solicitor General

Dylan Jacobs

Deputy Solicitor General

/s Henry C. Whitaker

Henry C. Whitaker

Solicitor General

James H. Percival

Chief of Staff

Office of the Arkansas Attorney General

323 Center Street, Suite 200

Little Rock, AR 72201

(501) 682-2007 (main)

Nicholas.Bronni@ArkansasAG.gov

Dylan.Jacobs@ArkansasAG.gov

Office of the Attorney General

The Capitol, Pl-01

Tallahassee, Florida 32399-1050

(850) 414-3300

(850) 410-2672 (fax)

henry.whitaker@myfloridalegal.com

james.percival@myfloridalegal.com

Counsel for State of Arkansas

Counsel for State of Florida

CHRISTOPHER M. CARR

ATTORNEY GENERAL

RAÚL R. LABRADOR

ATTORNEY GENERAL

/s/ Stephen J. Petrany

Stephen J. Petrany

Solicitor General

/s/ Joshua N. Turner

Joshua N. Turner

Chief of Constitutional Litigation

and Policy

Alan M. Hurst

Solicitor General

Office of the Attorney General of Georgia

40 Capitol Square, SW

Atlanta, GA 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for State of Georgia

Office of the Idaho Attorney

General

P.O. Box 83720

Boise, ID 83720-0010

Tel: (208) 334-2400

Josh.Turner@ag.idaho.gov

Alan.hurst@ag.idaho.gov

Counsel for State of Idaho

BRENNA BIRD

ATTORNEY GENERAL

RUSSELL COLEMAN

ATTORNEY GENERAL

/s/ Eric H. Wessan

Eric H. Wessan

Solicitor General

/s/ Matthew F. Kuhn

Matthew F. Kuhn

Solicitor General

Jacob M. Abrahamson

Counsel for Special Litigation

Office of the Attorney General of Iowa

1305 E. Walnut Street

Des Moines, IA 50319

(515) 823-9117

(515) 281-4209 (fax)

eric.wessan@ag.iowa.gov

Counsel for State of Iowa

Office of Kentucky Attorney General

700 Capital Avenue, Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

Jacob.Abrahamson@ky.gov

Counsel for the Commonwealth of

Kentucky

LIZ MURRILL

ATTORNEY GENERAL

LYNN FITCH

ATTORNEY GENERAL

/s/ J. Benjamin Aguiñaga

J. Benjamin Aguiñaga

Solicitor General

Tracy Short

Assistant Attorney General

/s/ Justin L. Matheny

Justin L. Matheny

Deputy Solicitor General

Louisiana Department of Justice

1885 N. Third Street

Baton Rouge, LA 70804

(225) 326-6766

aguinagaj@ag.louisiana.gov

shortt@ag.louisiana.gov

Office of the Mississippi Attorney General

P.O. Box 220

Jackson, MS 39205-0220

(601) 359-3825

justin.matheny@ago.ms.gov

Counsel for State of Mississippi

Counsel for State of Louisiana

ANDREW BAILEY

ATTORNEY GENERAL

AUSTIN KNUDSEN

ATTORNEY GENERAL

/s/ Joshua M. Divine

Joshua M. Divine

Solicitor General

/s/ Christian B. Corrigan

Christian B. Corrigan

Solicitor General

Peter M. Torstensen, Jr.

Deputy Solicitor General

Missouri Attorney General’s Office

Post Office Box 899

Jefferson City, MO 65102

Tel. (573) 751-1800

Fax. (573) 751-0774

josh.divine@ago.mo.gov

Counsel for State of Missouri

Montana Department of Justice

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

christian.corrigan@mt.gov

peter.torstensen@mt.gov

Counsel for State of Montana

MICHAEL T. HILGERS

ATTORNEY GENERAL

JOHN FORMELLA

ATTORNEY GENERAL

/s/ Zachary A. Viglianco

Zachary A. Viglianco

Deputy Solicitor General

/s/ Mark W. Dell’Orfano

Mark W. Dell’Orfano

Assistant Attorney General

Office of the Attorney General of

Nebraska

2115 State Capitol

Lincoln, NE 68509

(531) 739-7645

zachary.viglianco@nebraska.gov

New Hampshire Department of Justice

1 Granite Place South

Concord, New Hampshire 03301-3271

(603) 271-1236

Mark.W.DellOrfano@doj.nh.gov

Counsel for State of New Hampshire

Counsel for State of Nebraska

DREW H. WRIGLEY

ATTORNEY GENERAL

GENTNER DRUMMOND

ATTORNEY GENERAL

/s/ Philip Axt

Philip Axt

Solicitor General

/s/ Garry M. Gaskins, II

Garry M. Gaskins, II

Solicitor General

Jennifer L. Lewis

Deputy Attorney General

Office of Attorney General of

North Dakota

600 E. Boulevard Ave., Dept. 125

Bismarck, ND 58505

(701) 328-2210

pjaxt@nd.gov

Counsel for State of North Dakota

Office of the Attorney General of Oklahoma

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 521-3921

garry.gaskins@oag.ok.gov

Counsel for State of Oklahoma

ALAN WILSON

ATTORNEY GENERAL

MARTY J. JACKLEY

ATTORNEY GENERAL

Robert D. Cook

Solicitor General

/s/ Steven Blair

Steven Blair

Deputy Attorney General

/s/ J. Emory Smith, Jr.

J. Emory Smith, Jr.

Deputy Solicitor General

Thomas T. Hydrick

Assistant Deputy Solicitor

General

Joseph D. Spate

Assistant Deputy Solicitor

General

South Dakota Attorney General’s Office

1302 E. Highway 14, Suite 1

Pierre, SD 57501

(605) 773-3215

atgservice@state.sd.us

Counsel for State of South Dakota

Office of the Attorney General of South

Carolina

1000 Assembly Street

Columbia, SC 29201

(803) 734-3371

josephspate@scag.gov

Counsel for State of South Carolina

JONATHAN SKRMETTI

ATTORNEY GENERAL AND REPORTER

KEN PAXTON

ATTORNEY GENERAL

/s/ J. Matthew Rice

J. Matthew Rice

Solicitor General

Whitney Hermandorfer

Director of Strategic Litigation

Brent Webster

First Assistant Attorney General

Ralph Molina

Deputy First Assistant Attorney General

James Lloyd

Deputy Attorney General for Civil

Litigation

Kellie E. Billings-Ray

Chief, Environmental Protection

Division

Office of the Attorney General and

Reporter of Tennessee

P.O. Box 20207

Nashville, TN 37202-0207

(615) 741-7403

Matt.Rice@ag.tn.gov

Whitney.Hermandorfer@ag.tn.gov

Counsel for State of Tennessee

/s/ Wesley S. Williams

Wesley S. Williams

Assistant Attorney General

Office of the Attorney General of Texas

Environmental Protection Division

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

(512) 463-2012 | Fax: (512) 320-0911

Wesley.Williams@oag.texas.gov

Counsel for State of Texas

SEAN REYES

ATTORNEY GENERAL

JASON MIYARES

ATTORNEY GENERAL

/s/ Stanford E. Purser

Stanford E. Purser

Solicitor General

/s/ Erika L. Maley

Erika L. Maley

Solicitor General

Kevin M. Gallagher

Principal Deputy Solicitor General

Brendan T. Chestnut

Deputy Solicitor General

Office of the Utah Attorney General

160 E. 300 S., 5th Floor

Salt Lake City, Utah 84111

385-382-4334

spurser@agutah.gov

Counsel for State of Utah

Virginia Attorney General’s Office

202 North 9th Street

Richmond, VA 23219

(804) 786-2071

emaley@oag.state.va.us

kgallagher@oag.state.va.us

bchestnut@oag.state.va.us

Counsel for Commonwealth of Virginia

BRIDGET HILL

ATTORNEY GENERAL

/s/ D. David DeWald

D. David DeWald

Deputy Attorney General

Office of the Attorney General of

Wyoming

109 State Capitol

Cheyenne, WY 82002

(307) 777-7895

david.dewald@wyo.gov

Counsel for State of Wyoming

Dated: August 23, 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.