Respondents Brief — Michigan v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-46)

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Nos. 14-46, 14-47, 14-49 | ~

: FEB 2 & 2036,

Es Nt yg In She | L_OFFICE OF THE CLERK

Sbteme Court of the United States ——

MICHIGAN, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.

Respondents.

UTILITY AIR REGULATORY GROUP,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

NATIONAL MINING ASSOCIATION,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writs Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

BRIEF OF THE STATE AND

LOCAL GOVERNMENT RESPONDENTS

MAURA HEALEY

Attorney Genera! of Massachusetts

MELISSA HOFFER*

TRACY L. TRIPLETT

Assistant Attorneys General

ENVIRONMENTAL PROTECTION DIVISION

One Ashburton Place, 18th FI.

Boston, MA 02108

617-963-2322

melissa. hoffer@state.ma.us

*Counsel of Record

[Additional Counsel! Listed After Conclusion}

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEPS COM Libeary of Cover et

Law Litcary

QUESTION PRESENTED

Whether the Environmental Protection Agency

unreasonably refused to consider costs in determining

whether it is appropriate to regulate hazardous air

pollutants emitted by electric utilities.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................:cccsssssecceeceeees i

EE ait CRITE ER Re Le ne TE 1

STATEMENT OF THE CASE.....................0s0e0eeee0es 3

Effects of Power-Plant Emissions on States ...... 3

RT TRINA wccccecscccencncsscosssncsonascvescnsocensocnnszccsess 9

SUMMARY OF ARGUMENT ................0..ceceeeeeeeees 13

IT TN <ccsiisnbitisbasisibiaitiiiadaibesdniiidiamemebaiaiaaeieennen 15

I. EPA Permissibly Declined to Consider

Costs in Making Its Threshold Determina-

tion to Regulate Power Plants Under Sec-

tion 112 and Properly Considered Costs at

the Standard-Setting Stage.........................

A. Section 112(nX1XA) Does Not Require

Costs to be Considered at the Thresh-

Ce FN Te iaintciccsinioninonnionsivemeiiniens

There Is No Basis for Importing a “Re-

sidual Risk” Standard Into Section

I TIED co cesenddntonsslieghsetmiandusiaientien

EPA Properly Considered Costs at the

Technology-Based Standard-Setting Stage,

as Congress Intended ...................ce000000

This Court’s Precedent Recognizes No

Rule Requiring EPA to Consider Costs

When the Statute Does Not Require

Be i Rintasnitsenshiiesuincsnsonicepensionesinans

TABLE OF CONTENTS -— Continued

Page

Il. The States’ Experience Demonstrates that

the Air Toxics Rule Is Achievable Using

Cost-Effective, Readily Available Control

I viiiccctictistunconetnenicnisninionsiianinainniase 34

UI. Even if Costs Are Considered, EPA’s Find-

ings, as Set Forth in the Regulatory Im-

pact Analysis, Overwhelmingly Support

Its Appropriate and Necessary Determina-

TABLE OF AUTHOh. [TES

Page

CASES

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) ....passim

City of Arlington, Tex. v. F-C.C., 133 S. Ct. 1863

SE IITEIE actos’ biniiecuisitietinhoddiasastebeieanetiabinaiomngmaaiiaupmdamanauaummiesniio 33

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208

SEINE icsascntcasusncignd:aicnseaihnnnienisedsascaagglehaahas 15, 16, 32, 42

EPA v. EME Homer City Generation, L.P., 134

Be Ge, eee i sctcscitesicnessiisentnsacssnenanee 15, 16, 32, 39

Ford Motor Credit Co. v. Milhollin, 444 U.S.

IN ccneiiscnnsuidsdeh.enecieileeanatsdientioincbudinaieinsinnmnisbumianienttien! 33

Gen. Motors Corp. v. Ruckelshaus, 742 F.2d

ee IG Si iicccndicrenicdstenriccccccsemdneisebaies 24

Gen. Motors Corp. v. U.S., 496 U.S. 530 (1990)......... 20

Loughrin v. U.S., 1384S. Ct. 2384 (2014)... 20

Motor Vehicle Manufacturers Association ov.

State Farm Mutual Automobile Insurance

ig Se is Si eR ctedaciecesesetnisinneticowensntvninees 32, 33

Natural Resources Defense Council v. EPA, 529

eh PF og fi lie 2 ee 27

Natural Resources Defense Council, Inc. v. EPA,

824 F.2d 1146 (D.C. Cir. 1987)...............0.... 26, 27, 32

New Jersey v. EPA, 517 F.3d 574 (D.C. Cir.

SII ssticeinsdioustuaouaiinunppanimeeateabieanieasatnemmmnekeanencuinded 22, 32

TABLE OF AUTHORITIES — Continued

Smiley v. Citibank (South Dakota), N.A., 517

Ss I iaderlsocitntsnastectin-trerlicteenshichpundeisielectsconainatonaa ei’ 33

Union Elec. Co. v. EPA, 427 U.S. 246 (1976)....... 21, 31

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S.

He I iiss dhisinpidddpadenilstedadashcuvoedeinbacsnl 15, 16, 17, 31

FEDERAL STATUTES

Ee i cecenincausciguinni gisveeeee 9

I i ioe ecg oratorio 23

A IN iain ceceie sessiped cans 23

oi cccesinc sacl cincscmcsten 30

Ay BGI gies nescnecasegneaconsities 30

I IN ae visnccnei piace nectarinrsesested ons 19

I ON iin ici enisitsiciceceseniade 19

i ni 19, 22

eS ae oem et 19

WT OG a ici ccc cccdesezeccctnns 19, 22

ON aa cciniciestalapatccimsetan bie 19

TT WI iiiestiscssieetctecsecsaccececes 20

42 U.S.C. § 7412(eX 9X BMii) ..........escccececcesecessecececsceees 20

42 U.S.C. § 7412(AN(2).........scecesescecesnsesceeee 20, 22, 28, 29

ee i eiiiastintinansnnibtacsesstonabucbatnciasenaiaia 22

TABLE OF AUTHORITIES — Continued

Page

SD SETI. D Pi icrcnevicnesttondecccessenseestescesensveves 28

Oe Bees © FIND vcrvctsesccsecesescniccccmnsseseesonsens 20

ee © PD cccntesccecicssccanceniennnesevonasecene: 20

Si Ne Oe PU decrees rapenerecncemsancinntincidteineseasanenienin 22

ee as Or ID Neichnite sanscensictsensvnctsietscnbicensenesaspents 22

ee Oe IID secsntnsicsnauasiniecdecccseecinediegsenneess 20

Oe en Se PE catinsteceecesennscanesopcieenbsatanvenasbacnnaenn 22

Ee BH FD erence iccscssasvesesecioninstncstiones 20, 26

Ae Rees: FF IID eipiectetess vinnenovusivibovensitanienuonian 39

Oe ees ID inte ctgrcietcccas toinesiissuiatactinesncens 39

eo oe yp: eye eneeel nee 25

Oe Eras BP te iiitescenicciasecsnensenceeien 18, 19, 23

ee a ae Pee IIE BE Dicicstsosiesisanesiansssopsiciniecismenitonad 20

ke Oe I titaincecrdnevicncsecesntatestennaneonsmestnooeosiec 20

ts Oe PI sees ticrcincisnssiasniesiintinconnssenosinhnintl 30

ie Pe icictisctinpensrcscspnatinnininsttcunicecnsaianns 30

Pub. L. No. 91-604, § 112(aX1), 84 Stat. 1676

PEPE edentiinischathikinsatusapasacenmeacdenndliesesinanesiaeamnntaiens 21

Pub. L. No. 91-604, § 112(bX1XB), 84 Stat.

ee incicitibniniecacinpiceddanunnentebinnansnnninednacowanins 21

Pub. L. No. 101-549, 104 Stat. 2399 (1990)............... 22

Vii

TABLE OF AUTHORITIES — Continued

Page

FEDERAL REGISTER NOTICES

63 Fed. Reg. 57,356 (Oct. 27, 1998) ..............ccccceeeeeee 39

65 Fed. Reg. 79,825 (Dec. 20, 2000)................. 4,6,7,8

68 Fed. Reg. 70,904 (Dec. 19, 2003) -...........ccccceeccceceeeee 5

70 Fed. Reg. 25,162 (May 12, 2005).......0...... ccc 39

70 Fed. Reg. 59,402 (Oct. 12, 2005) ..............000.0..2....000.. 5

71 Fed. Reg. 76,518 (Dec. 20, 2006)..............0...00ccceeeee. 5

72 Fed. Reg. 74,088 (Dec. 28, 2007) ................cccceeeceeeee 5

pe EE ene 5

75 Fed. Reg. 15,608 (Mar. 21, 2011)........................0000. 5

76 Fed. Reg. 9450 (Feb. 17, 2011) .......................cccccs0e. 5

76 Fed. Reg. 24,976 (May 3, 2011)...........0000000... passim

76 Fed. Reg. 48,208 (Aug. 8, 2011)...................cccceeeeee 39

77 Fed. Reg. 9304 (Feb. 16, 2012).........00...00000.. passim

STATE STATUTES AND REGULATIONS

5 Coto. CopE Recs. § 1001-8:B.VIII.C ........0 0... 35

Conn. GEN. STAT. § 22a-199(b)(1)...........0...cceeeeeee 35, 36

DEL. ADMIN. CODE, tit. 7, § 1146-6.1..........0.00..0...0...0. 35

DEL. ADMIN. CODE, tit. 7, § 1146-6.2............ esaihiahda Sama 36

GA. ComP. R. & REGs. 391-3-1-.02(sssX16)\(v)............ 10

ILL. ADMIN. CopE tit. 35, § 225.230(a).......0000000.... 35, 36

310 MAss. CopE Recs. § 7.29(5KaX3\e) ...........0000000 35

TABLE OF AUTHORITIES — Continued

Page

310 Mass. CopE REGs. § 7.295 aX3Xf)...............-.0.- 36

Mp. CobDE REGS. tit. 26, § 11.27.03.D ......................... 35

MICH. ADMIN. CODE r. 396.2G02R .......-..screccoscossssercesees 36

MIcH. ADMIN. CoDE r. 336.2503(1a)-(b) (2009) ........ 36

MIcH. ADMIN. CODE r. 336.2503(1)()) ...............0.22e000 36

Minn. R. 7011.0561, subp. 4(A).......................e 35, 36

Beceer. Ames, T. PTB. TTA) nvccvccicesccccccscsccceccee 35, 36

15A N.C. Admin. Code 2D.2511(b)................cccceceeeeee 36

N.H. Rev. Star. ANN. § 125-0:11-18, I. ...........0.......... 35

N.J. ADMIN. CODE § 7:27-27.7(a)............ccceseeeeeeeees 35, 36

N.Y. Comp. CopEs R. & REGS. tit. 6, § 246.6(a).......... 36

N.Y. Comp. Cops R. & REGs. tit. 6, § 246.6(c)

Or. ADMIN. R. 340-228-0606(1).................ccccceeceesseeeees 36

Wis. ADMIN. CODE NR § 446.13(1) 0.000.000.0000 36

LEGISLATIVE HISTORY

S. Rep. No. 101-228, at 128, (1989), 1990

Wy REG GUE TIED cncsinccivinnnndesssicdnecminessndenineniieniieies 21

S. Rep. No. 101-228, at 131, 154, 1990

ne, CHI: MIMI scniincsciocsctocacenicsxetssssbiccncccsninaeaiseescacewie 3

S. Rep. No. 101-228, at 168-69, 1990 U.S.C.C_AN.

SRS Gaeta pect RR Roan a neal RENE, Le EON 29

S. Rep. No. 101-228, at 172, 1990 U.S.C.C._ALN.

RRMA ERT ASSET epee SE Ap ERASER ARCO ty 43

TABLE OF AUTHORITIES — Continued

Page

S. Rep. No. 101-228, at 176, 1990 U.S.C.C.ALN.

SN ciisa i eteasaics chtalasieimiendiinieenahadiiaieisteseuieuvadiniemastoneeid 21

136 Cong. Rec. 35,075 (statement of Rep.

SN I cs daindiels si icant crbiginlinsbinimstiodieoentee 22, 23

136 Cong. Rec. 36,062 (1990) (statement of

Sem. David Durenmber ger) .........0cccccscsosccesasssessesess 4, 22

OTHER AUTHORITIES

Comments of the Connecticut Dep’t of Energy

Oe a, I ciectrinniicacrntitidititaaucnivnnccaniisaiamtmin 37, 38

Comments of Envtl. & Pub. Health Grps.......... 6, 7, 42

cE a ane NE Se 40

Comments of the Massachusetts Dep’t of Envtl.

Ws: srancitannncamaRccieieaionssatnlacentnikeetnhe 10, 11, 36, 37, 38

Comments of the Michigan Dep’t of Envtl.

I siaainibctlsaandacsmatacaniaeeniacsehsusievniginicadedsiaes ».37, 38

Comments of the Nat’? Ass’n of Clean Air

By a tiinttiencinunmeininhictimctoaiiitnis 10, 11, 37, 39, 40

Comments of the New England Interstate

Water Pollution Control Comm’n..................... 10, 11

Comments of the New Jersey Dep’t of Envtl.

NEL cintaaci si ncdeconcduichoinmnactindileindaatiidilateometeicanisiil 36, 37, 38

Comments of the New York State Dep’t of

SE, CIID pi ceciiccicceciccemiscckinidocesedas 11, 36, 40

Comments of the Northeast States for Coordi-

nated Air Use Management............ 10, 11, 12, 37, 38

TABLE OF AUTHORITIES — Continued

Page

Comments of the South Carolina Dep’t of

Health and Envtl. Control ......................:ccccceeceeeeees 12

Eemocutive Order No. 13.066 ...........0ccccocccccoccscccccvescsovees 7

UD CAIN BOM. BAIN Siccesisivececssscsdcscccdccsnsecessccsts 7

Final Report: Mercury TMDL for the State of

IED sins cicrsesinctestucutcccensnteniieaniaibuianiasedbndsensoniniieainision 9, 37

Memorandum from Marc Houyoux and Made-

leine Strum, Emission Inventory and Analy-

sis Group, Emissions Overview: Hazardous

Air Pollutants in Support of the Final Mer-

cury and Air Toxics Standard (Dec. 1, 2011)............ 5

Minnesota Statewide Mercury Total Maximum

SIE IT Dis sidenicnsssicinnnnnssetendewtisusniienanastiniin 9,12

N.C. Dept. of Env’t and Nat. Res. and N.C.

Utils. Comm’n, Implementation of the “Clean

Smokestacks Act,” (June 1, 2013) ................0cccceceeee 37

North Carolina Mercury Total Maximum Daily

isso caciee sauce snap culebaneaieaaaceatiiaen 8,9,12

Northeast Regional Mercury Total Maximum

NE IIT Pictctincsaniutéconivsteeinbeniibnatebinindsienies 9,11

Statewide Michigan Mercury Total Maximum

Daily Load: Public Review Draft (2013)............... 8,9

Total Maximum Daily Load for Mercury Im-

pairments Based on Concentration in Fish

Tissue Caused Mainly by Air Deposition

cia ccinischiissacatseasdadtnidamsbieisetisesdaantaeniddaniidcaids 6, 12

TABLE OF AUTHORITIES — Continued

U.S. Energy Info. Admin., Today in Energy, Coal-

fired Power Plant Operators Consider Emis-

sions Compliance Strategies (March 28, 2014)............ 2

U.S. EPA, EPA-820-F-13-058, 2011 National

Listing of Fish Advisories (2013)...........c.cceecceeeseeeeees 8

INTRODUCTION

In Clean Air Act Section 112(n\1)A), Congress

directed EPA to perform a study of “the hazards to

public health reasonably anticipated to occur as a re-

sult” of power-plant emissions, and to regulate those

emissions if it finds it “appropriate and necessary

after considering the results of the study.” When EPA

made its “appropriate and necessary” determination

in 2000, and confirmed that determination with its

2012 promulgation of the Mercury and Air Toxics

Standards (Air Toxics Rule), it did exactly that: EPA

based its threshold determination to regulate hazard-

ous air emissions from power plants primarily on the

need to protect public health. EPA did not consider

costs when making that threshold determination to

regulate power plants under Section 112; rather, it

considered costs when developing the technology-

based standards for reducing power-plant hazardous

air pollution pursuant to Section 112(d). The court of

appeals correctly held that EPA’s choice not to con-

sider costs when first deciding whether it was “ap-

propriate and necessary” to regulate hazardous air

pollution from power plants was permissible under

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).

Power plants are the largest source of hazardous

air pollution in the Nation, 77 Fed. Reg. 9304, 9311

(Feb. 16, 2012), annually emitting hundreds of thou-

sands of tons, in the aggregate, of mercury, chro-

mium, arsenic, nickel, selenium, hydrogen fluoride,

hydrogen cyanide, and hydrogen chloride. See, e.g.,

76 Fed. Reg. 24,976, 25,005-06 (May 3, 2011). By

2015, the Air Toxics Rule will reduce mercury emis-

sions nationally by seventy-five percent, fine par-

ticulate matter emissions (to which toxic metals

adhere) by nineteen percent, and acid gas emissions

by eighty-eight percent. 77 Fed. Reg. at 9424. The

Rule will have immense public health benefits, in-

cluding both the vast monetized benefits of reduced

exposure to fine particulate matter, and substantial

non-monetized benefits, such as decreased neuro-

logical effects of mercury exposure, reduced adverse

health effects of mercury exposure through com-

mercial and non-freshwater fish consumption, and

reduced exposure to non-mercury hazardous air

pollution. Id. at 9306, Table 2.

Right now, many power plants are complying

with state mercury emissions standards that are, in

most cases, tougher than the Air Toxics Rule. That

experience shows that the air pollution control tech-

nology required by the Air Toxics Rule is available

and affordable, and compliance has occurred without

electric system reliability problems or widespread

economic harm. Sixty-four percent of the Nation’s

coal-fired generating capacity has in place the con-

trols necessary to comply with the Rule — demonstrat-

ing there is no practical impediment to compliance.’

' U.S. Energy Info. Admin., Today in Energy, Coal-fired Power

Plant Operators Consider Emissions Compliance Strategies (March

28, 2014) (ELA Report), http://www.eia.gov/todayinenergy/detail.

cfm?id=15611# (last visited Feb. 17, 2015).

But given the trans-boundary effects of air pollution,

states’ efforts are not enough — the serious health

risks posed by powér-plant hazardous air pollution

cannot be addressed adequately without a federal

standard.

STATEMENT OF THE CASE

Respondent States and Local Governments here-

by incorporate the Statement of the Case in Respon-

dent EPA’s brief, including its discussion of the

regulatory history and the decision below. Respon-

dent States and Local Governments respectfully

submit additional facts concerning the States’ experi-

ence that are material to the Court’s consideration

of the question presented.

Effects of Power-Plant Emissions on States

By 2011, when EPA proposed the Air Toxics Rule,

power plants had become “the most significant source

of [hazardous air pollutants] that remainfed] un-

addressed by [Section 112].” 77 Fed. Reg. at 9335; 76

Fed. Reg. at 24,980. Congress was aware of concerns

regarding power-plant emissions of hazardous air pol-

lutants when it amended Section 112 in 1990,’ but

* See, e.g., S. Rep. No. 101-228, at 131, 154 (1989), reprinted

in 1990 U.S.C.C.A.N. 3385, 3515 (“Lakes all across the northern

tier of states are now posted with warnings for pregnant women

and children because of high mercury levels in fish attributable

(Continued on following page)

delayed Section 112 regulation pending evidence of

possible hazardous air pollutant reductions resulting

from power plants’ compliance with the then-new

Title TV Acid Rain Program. Thus, Congress required

EPA to study the “hazards to public health” resulting

from power-plant hazardous air pollutant emissions

“after imposition” of other Clean Air Act requirements

(“Public Health Study”). 42 U.S.C. § 7412 (n\1)A).

See infra pp. 21-23. In 2000, EPA, based on the re-

sults of that Study, made its threshold “appropriate

and necessary” determination that power-plant

hazardous air pollution posed a threat to public

health and should be regulated under Section 112. 65

Fed. Reg. 79,825, 79,831 (Dec. 20, 2000).

In the decades since the 1990 Amendments,

power plants have continued to emit hazardous air

pollution, and their proportional share of U.S. emis-

sions has grown. During this time, EPA issued rules

requiring controls on over 170 different source cate-

gories resulting in an overall sixty-percent reduction

in domestic hazardous air pollutant emissions. 77

Fed. Reg. at 9335; 76 Fed. Reg. at 24,980. Even small

sources of hazardous air pollutants, such as dry

cleaners and auto shops, substantially reduced their

to mercury emissions from coal-fired power plants.”); 136 Cong.

Rec. 36,062 (1990) (statement of Sen. David Durenberger)

(Power plants “are a significant part of the air toxics problem”

and “emit mercury, radionuclides and arsenic in significant

amounts.”).

emissions. 76 Fed. Reg. at 24,980. Meanwhile, power

plants’ proportional share grew; their contribution to

domestic mercury emissions, for example, doubled

from less than twenty-five percent in 1990 to fifty

percent in 2005. 76 Fed. Reg. at 24,980; Memoran-

dum from Marc Houyoux and Madeleine Strum,

Emission Inventory and Analysis Group, Emissions

Overview: Hazardous Air Pollutants in Support of the

Final Mercury and Air Toxics Standard (Dec. 1, 2011),

J.A. 827, n.17.°

EPA estimates that since 2000, when it initially

determined that it was “appropriate and necessary”

to regulate power-plant emissions, until 2011, when it

confirmed that determination and proposed emission

standards, power plants released hundreds of tons of

mercury. 76 Fed. Reg. at 25,016; see also id. at 24,980,

25,016. Moreover, in 2005 alone, power plants re-

leased 120 tons of chromium, 200 tons of arsenic, 320

tons of nickel, 580 tons of selenium, 7900 tons of hy-

drogen cyanide, 47,000 tons of hydrogen fluoride, and

* EPA has regulated every other major source of mercury

under Section 112. See, e.g., 75 Fed. Reg. 15,608 (Mar. 21, 2011)

(industrial, commercial, institutional boilers, and process heat-

ers); 76 Fed. Reg. 9450 (Feb. 17, 2011) (gold mine ore processing

and production); 73 Fed. Reg. 226 (Jan. 2, 2008) (iron and steel

foundries); 72 Fed. Reg. 74,088 (Dec. 28, 2007) (electric arc fur-

nace steelmaking facilities); 71 Fed. Reg. 76,518 (Dec. 20, 2006)

(Portland cement manufacturing); 70 Fed. Reg. 59,402 (Oct. 12,

2005) (hazardous waste combustors); 68 Fed. Reg. 70,904 (Dec.

19, 2003) (mercury cell chlor-alkali plants).

350,000 tons of hydrogen chloride. 76 Fed. Reg. at

25,005-06.

Hazardous air pollutants, like mercury, are toxic

in tiny amounts; EPA’s reference dose for methyl-

mercury’ — the estimate of the daily exposure that is

“likely to be without an appreciable risk of deleterious

effects during a lifetime” — is only 0.1 micrograms per

kilogram per day. 77 Fed. Reg. at 9351-52; see also 65

Fed. Reg. at 79,829. The primary route of methyl-

mercury exposure for people is eating mercury-

contaminated fish. 76 Fed. Reg. at 25,000.

When EPA issued its 2000 “appropriate and

necessary” determination, it found that seven percent

of U.S. women of childbearing age were exposed to

mercury levels exceeding the reference dose. 65 Fed.

Reg. at 79,829-30. Annually, several hundred thou-

sand children born in the United States have been

exposed in utero to unsafe mercury levels. Comments

of the Envtl. Defense Fund, J.A. 384; Comments of

Envtl. & Pub. Health Grps. (Pub. Health Grps.

Cmts.), J.A. 342. The serious harms caused by pre-

natal exposure to low levels of mercury ~— including

impaired attention, fine motor function, language

skills, visual-spatial abilities, and verbal memory —

limit children’s ability to learn and achieve. 76 Fed.

‘ Methylmercury, which is formed by microbial action in

sediment and soils when mercury precipitates from air and de-

posits into waterbodies and land, is taken up by aquatic organ-

isms and bioaccumulates in the food chain, concentrating in the

tissues of fish and other organisms. 76 Fed. Reg. at 25,000.

Reg. at 25,018; see also 65 Fed. Reg. at 79,829. These

harms impose life-long costs that EPA was not able

to quantify in evaluating the public health risks of

power-plant methylmercury exposure or as part of its

separate Regulatory Impact Analysis (RIA), com-

pleted pursuant to Executive Order Nos. 12,866 and

13,563. See 77 Fed. Reg. at 9353 (explaining that

because IQ is “not the most sensitive neurodevelop-

mental endpoint affected by [methylmercury] expo-

sure” reliance on it “underestimates the impact of

reducing methylmercury in water bodies”); RIA 4-65,

J.A. 941.

Other toxic pollutants emitted by power plants

similarly pose more substantial risks to children.

Mutagenic carcinogens, such as hexavalent chromi-

um, pose greater risk due to children’s rapid devel-

opment. 76 Fed. Reg. at 25,018. Children, who have

higher respiratory rates than adults, also tend to in-

hale relatively larger quantities of pollutants, includ-

ing acid gases and fine particulate matter. /d.; see

also Pub. Health Grps. Cmts., J.A. 351. The presence

in fine particulate matter of toxic metals that are

emitted in large quantities by power plants — chromi-

um, arsenic, selenium, and nickel — has been linked

to increased severity of the adverse health effects

associated with that pollution. Pub. Health Grps.

Cmts., J.A. 343-44.

The near-ubiquitous mercury contamination of

our Nation’s waters poses a significant threat to pub-

lic health. To warn citizens, all fifty states —- up from

forty states in 2000 — have put fish consumption

advisories into effect.’ EPA’s 2011 national-scale risk

assessment completed in support of the Air Toxics

Rule showed that by 2016, power-plant emissions

alone would cause exceedances of safe mercury levels

in ten percent of 3100 watersheds modeled, and

would significantly contribute to exceedances of safe

mercury levels in twenty-nine percent of those water-

sheds. 77 Fed. Reg. at 9311, 9339, 9362, 9366.° In

some states, all, or nearly all, waters are unsafe for

fish consumption due to mercury contamination.’

That contamination is significant enough to require

the development of state-wide mercury “pollution

budgets,” known as “total maximum daily loads”

* See 65 Fed. Reg. at 79,827; U.S. EPA, EPA-820-F-13-058,

2011 National Listing of Fish Advisories (2013), http:/Awater.epa.gov/

scitech/swguidance/fishshellfish/fishadvisories/loader.cfm?csModule=

security/getfile& PageID=685927 at 4.

* EPA did not consider estuarine waters, such as the Chesa-

peake Bay, or commercial fisheries, such as the Great Lakes,

which both receive significant power-plant mercury deposition,

and thus likely understated the problem. 77 Fed. Reg. at 9347:

76 Fed. Reg. at 25,007, 25,016; see also 77 Fed. Reg. at 9362

(noting that several watersheds with the highest power-plant

mercury deposition were excluded).

" See, e.g., North Carolina Mercury Total Maximum Daily

Load (2012) (North Carolina TMDL), http://portal.ncdenr.org/c/

document_library/get_file?uuid=aech36 19-c246-4b49-bfd8-fd554 1775110

&groupld=38364 at 20 (all state waters impaired for fish con-

sumption due to mercury contamination); Statewide Michigan

Mercury Total Maximum Daily Load: Public Review Draft (2013)

(Michigan Draft TMDL), http//www.michigan.gov/documents/

deq/wrd-swas-hgtmdl-draft_415360_7.pdf at 9 (all inland lakes

and several hundred river miles subject to mercury-related fish

consumption advisories).

(TMDLs), for mercury-polluted waterbodies in eight

Northeastern states and four states in the Southeast

and Midwest to meet federal Clean Water Act water

quality standards. See 33 U.S.C. § 1313(d1) (requir-

ing development of TMDLs for impaired waters).*

States’ Efforts

Faced with ongoing delays in the promulgation

of Section 112 emission standards for power plants,

many of the undersigned states implemented com-

prehensive controls on power plants within their own

borders.” Between 2000 and 2010, at least fifteen

* Connecticut, Maine, Massachusetts, New Hampshire, New

York, Rhode Island, and Vermont are implementing a regional

mercury TMDL, while Florida, Michigan, Minnesota, New Jer-

sey, and North Carolina are implementing or finalizing state-

wide mercury TMDLs. See Northeast Regional Mercury Total

Maximum Daily Load, at vi, 44 (2007) (Northeast TMDL), http://

www.epa.gov/region l/eco/tmdl/pdfs/ne/Northeast-Regional-Mercury-

TMDL. pdf; Final Report: Mercury TMDL for the State of Florida

(2013) (Florida TMDL), http://Awww.dep.state.fl.us/water/tmdl/docs/

tmdls/mercury/Mercury-TMDL.pdf; Michigan TMDL, supra note

7; Minnesota Statewide Mercury Total Maximum Daily Load

(2007) (Minnesota TMDL), http/Awww.pca.state.mn.us/ndex.php/

view-document.htm]?gid=8507; Total Maximum Daily Load for

Mercury Impairments Based on Concentration in Fish Tissue

Caused Mainly by Air Deposition (2009) (New Jersey TMDL),

http://www.nj.gov/dep/wms/bear/TMDL#20HG%20document®20

final®20version®%209-8-09_formated®20for%20web%20posting

%20js.pdf, North Carolina Mercury TMDL, supra note 7.

* Numerous states have also stringently controlled other

sources of mercury emissions, including municipal waste and

medical waste incinerators, and have regulated mercury contained

in automotive light switches, thermostats, thermometers, and

(Continued on following page)

states” enacted regulations requiring coal-fired power

plants within their borders to reduce mercury emis-

sions. Comments of the Nat’? Ass’n of Clean Air

Agencies (NACAA Cmts.), J.A. 306-20. Other states

without such regulations have required power plants

to install mercury-monitoring equipment or evaluate

the feasibility of mercury controls. Jd."' Nearly every

state with power-plant mercury emission standards

has required more health protective limits than the

Air Toxics Rule. See infra pp. 36-37. Those standards

— which have been implemented without adverse elec-

tricity reliability impacts” — have reduced mercury

dental products. Comments of the New England Interstate

Water Pollution Control Comm'n (NEIWPCC Cmts.), J.A. 230;

Comments of the Northeast States for Coordinated Air Use

Management (NESCAUM Cmts.), J.A. 237.

’* These states are Colorado, Connecticut, Delaware, Illinois,

Maryland, Massachusetts, Michigan, Minnesota, Montana, New

Hampshire, New Jersey, North Carolina, New York, Oregon, and

Wisconsin. See infra note 18. Currently, Maine, Rhode Island,

Vermont, and the District of Columbia contain no coal-fired

power plants subject to the Air Toxics Rule.

‘ Beginning in 2008, South Carolina required power plants

to install mercury emission monitoring equipment. NACAA

Cmts., J.A. 311-12. Georgia has required certain power plants to

complete mercury control feasibility studies by 2018. Ga. Comp.

R. & ReGs. 391-3-1-.02(sssX16Xv).

2 See Comments of the Massachusetts Dep’t of Envtl. Prot.

(Massachusetts Cmts.), J.A. 225 (“Massachusetts facilities have

... install{ed] control equipment with no impact on reliability of

the electric power grid and have demonstrated consistent com-

pliance with the [state’s mercury] limits” which are “consider-

ably more stringent than those proposed by EPA.”); NACAA

Cmts., JA. 296 (“Years, and in some cases decades, of experience

(Continued on following page)

emissions in the Northeast dramatically and have

achieved measurable reductions in mercury levels in

fish and other biota. Massachusetts Cmts., J.A. 216,

226; NACAA Cmts., J.A. 290; NESCAUM Cmts., J.A.

237.

Such state requirements, however, have not

solved — and cannot solve — the problem of interstate

hazardous air pollution. Mercury can travel hundreds

of miles from the smokestack. See 77 Fed. Reg. at

9444. A significant portion of Northeast mercury dep-

osition originates from uncontrolled power plants lo-

cated in other states. Massachusetts Cmts., J.A. 222;

NEIWPCC Cmts., J.A. 229; NESCAUM Cmts., J.A.

238-39. Until those out-of-state power-plant emis-

sions are addressed, Northeastern waters will not

meet federal water quality standards. See Northeast

TMDL, supra note 8, at 44 (concluding that EPA

action to “implement significant reductions from up-

wind out-of-region sources, primarily coal-fired power

plants” is necessary to return fish methylmercury

concentrations to safe levels); Massachusetts Cmts.,

J.A. 223; NEIWPCC Cmts., J.A. 229-30; Comments of

the New York State Dep’t of Envtl. Conservation

demonstrates that [the technologies available to reduce power

plant hazardous air pollutant emissions] can reliably deliver the

expected performance at reasonable cost.”); NACAA Cmts., J.A.

297 (State implementation of recent federal air pollution rules

requiring the same controls as the Air Toxics Rule shows that

the controls can be installed in the Section 112 timeframe “with-

out disrupting supplies of electricity.”).

(New York Cmts.), J.A. 798; NESCAUM Cmts., J.A

238-39.

Achievement of other states’ TMDL goals will

also require federal regulation of power plants. Thirty

percent of Minnesota’s mercury deposition, for exam-

ple, originates from out-of-state domestic sources.

Minnesota TMDL, supra note 8, at 20-21, 45 (stating

that federal regulation of those sources, such as

power plants, holds most promise for reaching its

TMDL goals); see also New Jersey TMDL, supra note

8, at 31 (noting that twenty-six percent of New Jer-

sey’s air deposition mercury load originates from five

surrounding states); North Carolina TMDL, supra

note 7, at 6 (noting that fifteen percent of North

Carolina’s total mercury deposition originates from

out-of-state regional sources). Similarly, South Caro-

lina’s initiative to reduce mercury pollution “relies

in part on the EPA to meet its [Clean Air Act] ob-

ligations to promulgate lawful standards to ad-

dress mercury.” Comments of the South Carolina

Dep’t of Health and Envtl. Control, J.A. 196.

Without a federal standard, citizens of the Re-

spondent States and Local Governments are unable

to receive the necessary public health protections

from in-state mercury reductions due to cross-border

movement of mercury emissions from out-of-state

power plants. The Air Toxics Rule imposes national

controls that are essential to both protecting public

health and the environment and leveling the regula-

tory playing field across the country.

SUMMARY OF ARGUMENT

Section 112(nX1XA) did not require EPA to con-

sider costs when it made its threshold determination

to regulate power-plant hazardous air pollution. In-

stead, the language of Section 112(nX 1A), its statu-

tory context and legislative history, and the purpose

of the Act demonstrate that Congress intended EPA

to regulate power-plant hazardous pollution if EPA

found, as it did, that it was “appropriate and neces-

sary” to do so based on the Public Health Study and

considering the effect of other Clean Air Act provi-

sions on controlling that pollution.

Nothing in Section 112(n\1XA) provides any

basis to treat that provision like “residual risk” pro-

visions contained elsewhere in Section 112. Because

Section 112 standards have never been applied to

power plants, there is no “residual risk” remaining

from the imposition of any such standards. Further,

Congress did not require costs to be considered for

purposes of setting Section 112 “residual risk” stan-

dards, so even if Section 112(n\1\A) is a “residual

risk” standard, that conclusion would not compel con-

sideration of costs.

Congress did not exclude costs from consideration

in Section 112. Rather, it provided in the statute that

costs should be considered at the standard-setting

stage, not for purposes of EPA’s initial decision

whether to regulate power-plant hazardous air pol-

lution at all. That approach is similar to the manner

in which Congress directed EPA to consider costs

when regulating mobile and stationary source emis-

sions. Here, EPA properly considered costs when

establishing technology-based standards pursuant to

Section 112(d), not when making the threshold de-

cision whether to regulate.

This Court’s precedent recognizes no rule requir-

ing EPA to consider costs when Section 112(n)1XA)

does not require EPA to do so. Rather, it establishes

that, when faced with statutory ambiguity, agencies,

not courts, should resolve any struggle between com-

peting views of the public interest.

Several states have implemented state power-

plant mercury standards more stringent than those

required by the Air Toxics Rule, as well as other

federal air pollution ruies requiring technological

controls similar to those imposed by the Rule. Power

plants have demonstrated successfully their ability to

comply with those standards. That experience shows

that the Rule’s requirements are achievable; cost-

effective control technologies are available; and

compliance with such standards causes no adverse

effects on electric system reliability.

Finally, the extensive analysis of benefits and

costs set forth in EPA’s RIA provides ample evidence

that, even if costs were considered, EPA’s decision to

regulate power-plant hazardous air pollution would

be appropriate, since the Rule’s benefits, taken to-

gether, far outweigh its costs.

ARGUMENT

I. EPA Permissibly Declined to Consider Costs

in Making Its Threshold Determination to

Regulate Power Planis Under Section 112

and Properly Considered Costs at the

Standard-Setting Stage.

The only question presented here is whether, ap-

plying Chevron, EPA’s interpretation — that Section

112(n)(1)(A) does not require it to consider costs when

deciding whether to regulate power-plant hazardous

air pollutants — is permissible. See Entergy Corp. v.

Riverkeeper, Inc., 556 U.S. 208, 218 (2009) (EPA's

interpretation will govern “if it is a reasonable inter-

pretation of the statute — not necessarily the only

possible interpretation, nor even the interpretation

deemed most reasonable by the courts.”) (emphasis

in original); see also EPA v. EME Homer City Gen-

eration, L.P., 134 S.Ct. 1584, 1603, 1607 (2014)

(affording Chevron deference to EPA’s “reasonable

interpretation of ambiguous statutory language”). Pe-

titioners cannot demonstrate an unambiguous re-

quirement in Section 112(nX1XA) for EPA to consider

costs at the listing stage, and thus EPA's reasonable

interpretation must prevail. See, e.g., Whitman v. Am.

Trucking Ass’ns, Inc., 531 U.S. 457, 465-69 (2001).

A. Section 112(m)(1)(A) Does Not Require

Costs to be Considered at the Threshold

Listing Stage.

By closely analyzing the statutory text and the

context in which the 1990 Amendments were enacted,

the court of appeals properly followed this Court’s

teaching that interpretation of statutory terms is

context-dependent. See Entergy Corp., 556 U.S. at

222 (explaining that, taken in context, statutory si-

lence was “meant to copvey nothing more than a

refusal to tie the agency’s hands as to whether cost-

benefit analysis should be used, and if so to what

degree”); Whitman, 531 U.S. at 471. Accordingly,

“(jacking a dispositive statutory instruction to guide

it,” EPA’s decision here was “a ‘reasonable’ way of

filling the ‘gap left open by Congress.’” EME Homer

City, 134 S. Ct. at 1607 (quoting Chevron, 467 U.S. at

866).

The decision below affirming EPA’s reasonable

interpretation does not preclude EPA from consider-

ing costs in any other Clean Air Act rulemaking, nor

does it create any new rule — bright line or otherwise

— regarding when costs may be considered by EPA.

Under this Court’s precedent, such questions properly

turn on interpretations of specific statutory language,

statutory context, and, where appropriate, legislative

history and other record facts that illuminate con-

gressional intent.

In Whitman, this Court sustained EPA’s decision

not to consider implementation costs when setting

National Ambient Air Quality Standards (NAAQS) for

the protection of public health and welfare under

Section 109 of the Act. 531 U.S. at 464-71. The Court,

rejecting the industry respondents’ interpretation of

Section 109 as allowing for cost consideration, cited

numerous provisions where, in contrast to Section

109, Congress expressly authorized cost considera-

tion. Jd. at 467. Finding no clear “textual commit-

ment of authority to the EPA to consider costs,” id. at

468, the Court held that the text “interpreted in its

statutory and historical context and with apprecia-

tion for its importance to the [Clean Air Act] as a

whole, unambiguously bars cost considerations from

the NAAQS-setting process,” id. at 471.

Here, as in Whitman, no evidence exists in the

text of Section 112(nX1)(A) “interpreted in its statu-

tory and historical context” or in the Clean Air Act’s

structure “as a whole” that Congress required that

costs be considered at the listing stage. Jd. at 471.

First, Section 112(n)(1A)’s plain language shows

that Congress intended EPA’s consideration of “haz-

ards to public health” in the Public Health Study to

be the touchstone informing EPA’s determination

whether it was “appropriate and necessary” to regu-

late power-plant hazardous air pollution. In the 1990

Amendments, Congress mandated that:

[the] Administrator shall perform a study of

the hazards to public health reasonably an-

ticipated to occur as a result of emissions by

[power plants] of pollutants listed under sub-

section (b) of this section after the imposition

of the requirements of this chapter... The

Administrator shall regulate [power plants]

under this section, if the Administrator finds

such regulation is appropriate and necessary

after considering the results of the study re-

quired by this subparagraph.

42 U.S.C. § 7412(nX 1A) (emphases added).

Section 112(nX1XA) nowhere mentions costs; it

neither requires EPA to consider costs, nor prohibits

EPA from doing so. Instead, the statute focuses on the

public health harms expected from power-plant

hazardous air pollution. Section 112(n\1XA) required

EPA to study the “hazards to public health” resulting

from power-plant emissions “after imposition of the

requirements of this chapter,” (such as the newly

created Acid Rain Program, see infra pp. 21-23), and

mandated that EPA “shall” regulate that pollution if

EPA found it “appropriate and necessary” to

do so after considering the study's results. Id.

§ 7412(n 1A).

* Section 112(mnX1KA) also required EPA, in its report to

Congress on the results of the Public Health Study, to “describe

_.. alternative control strategies for emissions” warranting reg-

ulation under Section 112(nX1KA). 42 U.S.C. § 7412(nX 1A).

Congress did not require EPA to consider the costs of such

technologies. Id.

“ Petitioner Michigan incorrectly argues that EPA's inter-

pretation renders the term “appropriate” superfluous. Michigan

Br. 23. EPA found it “appropriate” to regulate because mercury

is a hazard to public health; power plants are the largest source

of domestic mercury emissions; and it had “identified certain

(Continued on following page)

Second, when Section 112(n\1\A) is read within

the context of Section 112 as a whole, EPA’s focus

on public health protection as the trigger for listing

power plants is consistent with Congress’s overall ap-

proach to regulating hazardous air pollutants. For

example, when it revamped Section 112 in i990,

Congress specifically listed multiple hazardous air

pollutants — without consideration of cost. See id.

§ 7412(b\1). Further, Congress mandated that when

listing additional hazardous air pollutants for regu-

lation, EPA’s sole focus must be reducing threats

to public health and the environment. See id.

§ 7412(bX2) (EPA “shall add[] pollutants which

present, or may present, a threat of adverse

human health effects or adverse environmental

effects. ”). Congress also declined to require that

costs be considered for purposes of listing source

categories. See id. § 7412(aX1)-(2), (c)(1).

Moreover, the process Congress put in place

for removing a hazardous pollutant source category

is also cost-blind. See id. § 7412(c)(9). Costs play

no role in a delisting determination; the sole focus

control options that would effectively reduce [hazardous air

pollutant) emissions from U.S. [power plants],” 77 Fed. Reg. at

9310. EPA found it “necessary” to regulate because implementa-

tion of the Act’s requirements, other than Section 112, will not

“adequately address the serious public health and environmen-

tal hazards arising from {hazardous air pollutant) emissions

from U.S. [power plants]” and Section 112 is “intended to ad-

dress [hazardous air pollutant] emissions.” Jd.; see also id. at

9363.

is public health and environmental effects. See id.

§ 7412(cKX 9X BXiHii). It would be incongruous to re-

quire EPA to consider costs when making the initial

decision whether to regulate power plants as a source

category when Congress plainly saw no role for EPA

to consider costs when delisting any source category,

including power plants.

Third, Congress mentioned costs expressly where

it intended EPA to consider them. See id. § 7412(dX2),

(dX8)AXi), (dX8XBXi), (fK1)B), (fX2KA), (nX1XB),

(s2). In fact, Section 112(n\1XA), which is silent on

costs, is immediately followed by Section 112(nX1 XB),

which expressly requires EPA to conduct a study (for

submission to Congress) of mercury emissions from

power plants and other sources, and to consider,

among other factors, the costs of available control

technologies. Jd. § 7412(n)(1XB). It is generally pre-

sumed that Congress acts intentionally when it in-

cludes specific language in one statutory section, but

not in another. Loughrin v. U.S., 134 S.Ct. 2384,

2390 (2014) (“[WJhen ‘Congress includes particular

language in one section of a statute but omits it in

another’ — let alone in the very next provision — this

Court ‘presume[s]’ that Congress intended a differ-

ence in meaning.” (alteration in original) (quoting

Russello v. United States, 464 U.S. 16, 23 (1983));

Gen. Motors Corp. v. U.S., 496 U.S. 530, 537-38

(1990) (Where Congress omitted a deadline for EPA

action in Section 110(a)(3XA) of the Clean Air Act, but

expressly included such deadlines elsewhere, includ-

ing in “the very next provision,” Congress likely acted

intentionally.); see also Union Elec. Co. v. EPA, 427

U.S. 246, 257 n.5 (1976) (“Where Congress intended

the Administrator to be concerned about economic

and technological infeasibility [in the 1970 Amend-

ments to the Clean Air Act], it expressly so pro-

vided.”).

Fourth, Section 112(n)1)(A)’s legislative history

confirms that EPA’s decision not to consider costs at

the threshold listing stage is permissible. In the 1970

Clean Air Act Amendments, Congress directed EPA to

identify and list air pollutants that “cause or con-

tribute to an increase in mortality or an increase

in serious irreversible, or incapacitating reversible,

illness,” and put in place emissions standards that

would “provide[ ] an ample margin of safety to protect

the public health.” Pub. L. No. 91-604, § 112(a)(1),

(bX1XB), 84 Stat. 1676, 1685 (1970). That risk-based

approach proved unwieldy; in 1989, Congress ac-

knowledged that the law had “worked poorly,” and

that “[iJn 18 years, EPA has regulated only some

sources of only seven chemicals.” S. Rep. No. 101-228,

at 128, 1990 U.S.C.C.A.N. at 3513 (internal quota-

tions omitted). EPA’s failure to regulate hazardous air

pollutants reflected, in Congress’s view, a “history of

abuse and abdication.” Jd. at 176, 1990 U.S.C.C.A.N.

at 3561.

Congress was therefore focused in 1990 on en-

suring prompt, effective regulation of hazardous air

pollution to protect public health; it wanted to fix the

Act so that it would work — and work quickly — to

reduce the serious threat of hazardous air pollution.

The 1990 Amendments were thus intended to remedy

“the slow pace of EPA’s regulation of [hazardous air

pollutants].” New Jersey v. EPA, 517 F.3d 574, 578

(D.C. Cir. 2008); see also '77 Fed. Reg. at 9327.

Consequently, Congress directly listed 189 haz-

ardous air pollutants, 42 U.S.C. § 7412(b\1), gave

EPA one year to list all source categories that emitted

the listed pollutants, id. § 7412(cX1), and directed

EPA promptly to establish emissions standards for

those categories, id. § 7412(e). Congress dispensed

with the risk-based approach to establishing emis-

sions standards, instead requiring the technology-

based “Maximum Achievable Control Technology”

(MACT) standard, mandating that EPA consider pub-

lic health risks that may remain even after applying

MACT standards, and directing EPA to establish

more stringent standards as required to protect pub-

lic health. Id. § 7412(d2)(3), (f1)-(2).

With the 1990 Amendments, Congress also cre-

ated the Title [TV Acid Rain Program, establishing a

cap-and-trade program for power-plant emissions of

sulfur dioxide and nitrogen oxides. Pub. L. No. 101-

549, 104 Stat. 2399 (1990). Mindful that power plants’

hazardous air pollution could be reduced if plants

installed pollution controls to comply with the new

Title [IV program, see, e.g., 136 Cong. Rec. 35,075

(statement of Rep. Michael Oxley); id. 36,062 (state-

ment of Sen. David Durenberger), Congress gave

power plants a “three-year pass,” NMA Pet. App. 26a.

Instead of requiring immediate regulation, Congress

mandated that EPA first perform the Public Health

Study to identify threats to public health from power-

plant hazardous air pollution remaining after the

Acid Rain Program’s implementation. See 42 U.S.C.

§ 7412(n\1)(A).

The additional time afforded to complete the

Public Health Study, and the requirement that the

decision to regulate be based on the results of that

Study, reflected a compromise: Congress wanted to

understand what effect, if any, the Acid Rain Program

would have on emissions of hazardous air pollutants

from power plants. 76 Fed. Reg. at 24,978. Congress’s

measured approach reflects its intent that EPA would

determine, based on public health science, whether

power-plant hazardous air pollution remained a seri-

ous public health problem after implementing the

Acid Rain Program, and, if so, that EPA would ad-

dress that problem through the technology-based

regulations of Section 112. See 136 Cong. Rec. 35,075

(statement of Rep. Michael Oxley) (noting that EPA

may regulate power plants “after taking into account

compliance with all provisions of the act”).

Fifth, EPA’s interpretation of Section 112(n\1)(A)

is consistent with the purpose of the Clean Air Act

as a whole. When Congress first passed the Act, it

found that growth in air pollution had “resulted in

mounting dangers to the public health and welfare,”

42 U.S.C. § 7401(aX2), and declared that the pur-

poses of Title I are to “protect and enhance the qual-

ity of the Nation’s air resources so as to promote

the public health and welfare and the productive

capacity of its population,” id. § 7401(bX1). EPA’s

interpretation that it was not required by Section

112(nX1XA) to consider costs in determining the

threshold question whether to regulate power-plant

hazardous air pollution furthers this intent. See, e.g.,

Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561,

1571 (D.C. Cir. 1984) (noting that Section 101(bX1)’s

protective goal is the Act’s “unequivocal! directive”).

Section 112(n)(1\A)’s text, statutory context, and

legislative history, understood in light of the Act’s

overall health-protective purpose, confirm the rea-

sonableness of EPA's interpretation of that section —

focusing on public health impacts, not costs, at the

threshold point of determining whether to regulate.

B. There Is No Basis for Importing a “Re-

sidual Risk” Standard Into Section

112(m)(1)(A).

Petitioner Utility Air Regulatory Group (UARG)

incorrectly urges this Court to import into Section

112(n)(1)A) a “residual risk” standerd, like that in

Sections 112(f2XA) and 112(m\6), which it wrongly

argues would compel consideration of costs here.

UARG Br. 30-31. UARG’s analogy fails, however, be-

cause the residual risk provisions it cites, Sections

112(f) 2A) and 112(m\X6), were established to ad-

dress pollution remaining after Section 112 technology-

based standards for hazardous air pollutants were in

place. Section 112(f2)(A) mandates further regula-

tion to address any public health risks remaining

“after promulgation of standards. pursuant to sub-

section (d) of this section.” 42 U.S.C. § 7412(fK 2A)

(emphasis added). Likewise, Section 112(m\6) requires

further regulation if “the other provisions of this sec-

tion” are not “adequate to prevent serious adverse ef-

fects to public health and serious or widespread

environmental effects” of atmospheric deposition of

hazardous pollutants on, among other waterbodies,

the Great Lakes and coastal waters. Jd. § 7412(m\6)

(emphasis added). There can be no residual risk re-

maining from application of Section 112 hazardous

air pollution standards to power plants, however, be-

cause no such standards have ever been in place.

Even if they were appropriate analogues, neither

Section 112(fX{2MA) nor Section 112(m 6) requires

that EPA consider the costs of any additional regula-

tion required to address public health risk remaining

after Section 112 standards are in place, nor do they

evince any congressional intent that costs should

trump public health. Section 112(m\6) illustrates

Congress’s deep concern with public health harms

and environmental degradation associated with haz-

ardous air pollution deposition to great waters, and it

provides that EPA shall regulate as “necessary and

appropriate,” with no mention of costs at all. Section

112(f1)-(2) similarly underscores Congress’s singu-

lar focus on mitigating public health risk to the

greatest extent possible and requires EPA to promul-

gate standards if required “to provide an ample mar-

gin of safety to protect public health in accordance

with this section (as in effect before November 15,

1990).” 42 U.S.C. § 7412(f 2) A).

As UARG has acknowledged, UARG Br. 30,

Section 112(fX2XA) requires application of the pre-

November 15, 1990 “ample margin of safety” stan-

dard. That standard, at issue in Natural Resources

Defense Council, Inc. v. EPA, 824 F.2d 1146 (D.C. Cir.

1987) (en banc), does not, however, require consid-

eration of costs. There, the court reviewed EPA’s

application of the “ample margin of safety” standard

to regulate hazardous vinyl chloride emissions, to

determine whether EPA properly had considered “cost

and technological feasibility.” 824 F.2d at 1154-55.

Discerning no “clear congressional intent” to preclude

such considerations, the court held that EPA “may”

consider those factors, and relying on Chevron, exam-

ined whether EPA’s choice of how to incorporate those

considerations was permissible. Jd. at 1163. Analyz-

ing the language and legislative history of Section

112, the court concluded “it seems to us beyond dis-

pute that Congress was primarily concerned with

health in promulgating section 112,” and when set-

ting an emission standard, “[elvery action” by EPA “is

to be taken ‘to protect the public health.’” Jd. The

court held that EPA was barred from considering

costs at the threshold stage of deciding what consti-

tutes a “safe” level of emissions. Jd. at 1165 (“[EPA]

cannot under any circumstances consider cost and

technological feasibility at this stage of the analy-

sis.”). Costs may, but are not required, to be consid-

ered only at the second stage of deciding whether to

establish even more stringent standards to provide

an “ample margin of safety.” Jd. at 1165-66. Moreover,

the court recognized that EPA could apply other meth-

odologies for determining “ample margin of safety”

wherein cost could not be considered. Jd. at 1165 n.11.

The court rejected EPA’s interpretation, which would

have permitted the standard to be set at a less pro-

tective level if costs would be disproportionate to

benefits. Jd. at 1164.

UARGQ’s reliance on another D.C. Circuit case

addressing that same Section 112(f) “ample margin of

safety” standard, Natural Resources Defense Council

v. EPA, 529 F.3d 1077 (D.C. Cir. 2008), is misguided.

Relying on Chevron, the court held only that it had

been a permissible choice for EPA to consider costs

at the second stage of determining what “margin of

safety” is “ample,” concluding that “EPA’s interpre-

tation of subsection 112(f2), although not an in-

evitable one, certainly is, at least, a reasonable

construction of the statute.” Jd. at 1083.

The principle animating the court’s holdings in

these cases applies here: when Congress makes pub-

lic health the touchstone for a key regulatory decision

point, with no mention of cost — such as, what level of

exposure to vinyl chloride is safe or whether public

health hazards of power-plant pollution warrant reg-

ulation — it is, at the very least, permissible for EPA

not to consider costs.

C. EPA Properly Considered Costs at the

Technology-Based Standard-Setting Stage,

as Congress Intended.

Congress did not exclude costs from consideration

in Section 112; rather, it provided that costs to indus-

try should be considered when setting technology

standards, not at the point of EPA's initial decision

whether to regulate power plants. Petitioners’ conten-

tion that Congress did not intend for EPA to regulate

power plants under Section 112 without considering

costs rests on a “false premise,” as the court of ap-

peals explained, since Congress carefully provided

for considering costs at the standard-setting stage:

“[hjere, as in Whitman, interpreting one isolated pro-

vision not to require cost consideration does not

indicate that Congress was unconcerned with costs

altogether, because Congress accounted for costs

elsewhere in the statute.” NMA Pet. App. 27a.

Congress requires the “maximum degree” of haz-

ardous air pollutant emissions reduction from exist-

ing sources, 42 U.S.C. § 7412(d)(2), a level that may

be no less stringent than “the average emission lim-

itation achieved by the best performing 12 percent of

the existing sources,” id. § 7412(d)3XA). While cost

consideration does not factor into establishing that

MACT floor, the court of appeals correctly observed

that “even for MACT floors, costs are reflected to

some extent because floors correspond (by definition)

to standards that better-performing [power plants]

have already achieved, presumably in a cost efficient

manner.” NMA Pet. App. 27a (emphasis in original);

see also S. Rep. 101-228, at 168-69, 1990 U.S.C.C._ALN.

at 3553-54 (evidencing Congress’s understanding that

selecting emissions limitations on the basis of what

has been “achieved in practice by sources of a

similar type or character” reflects “cost considera-

tions”). To achieve the maximum degree of emissions

reduction, EPA may require standards more stringent

than MACT, and for those, it must “take[] into con-

sideration the cost of achieving such emission reduc-

tion,” and other factors. Id. § 7412(d\2).

EPA must, and did, consider costs when setting

such standards here. See, e.g., 76 Fed. Reg. at 25,046

(rejecting duplicate controls, such as multiple scrub-

bers, because cost was unreasonable); id. (rejecting

coal-to-gas retrofit because it is “not cost-effective”);

77 Fed. Reg. at 9393 (discussing costs of standard for

power plants burning low-rank virgin coal); 77 Fed.

Reg. at 9411-13 (discussing cost of sorbent injection

technology and noting that “[sJenior technical staff

from the EPA have carefully evaluated the key as-

sumptions regarding the cost and operation of emis-

sion control technologies”).

” EPA also discussed other associated costs in the proposed

and final versions of the Air Toxics Rule. See, e.g., 76 Fed. Keg.

at 25,051-52 (compliance and monitoring costs); 76 Fed. Reg. at

25,053 (proposing emissions averaging for certain existing

sources because less costly); 76 Fed. Reg. at 25,075-78 (costs and

benefits, costs by control measure); 77 Fed. Reg. at 9413 (electrici-

ty price impacts, job market effects, and other economic im-

pacts); 77 Fed. Reg. at 9416 (impacts on low income consumers);

77 Fed. Reg. at 9425-31 (cost, economic impacts, and benefits).

Section 112’s framework — requiring costs to be

considered at the standard-setting stage, but not at

the point of making an initial decision whether to

regulate at all — is similar to Congress’s approach

in other key Clean Air Act programs. Under the

New Source Performance Standards program, Con-

gress required EPA to list categories of stationary

sources that “cause{] or contribute[] significantly

to, air pollution which may reasonably be anticipated

to endanger public health or welfare.” 42 U.S.C.

§ 7411(b)(1)(A). EPA’s stationary source category list-

ing decision turns solely on EPA's consideration of

public health impacts — costs are not a factor. How-

ever, when EPA sets performance standards under

Section 111, Congress made specific provision for the

agency to consider costs. See id. § 7411(a\1).

When EPA regulates mobile sources, Congress

mandated that EPA “shall” prescribe emissions stan-

dards for any air pollutants that “cause, or contribute

to, air pollution which may reasonably be anticipated

to endanger public health or welfare.” 42 U.S.C.

§ 7521(aX1). Congress also provided that any reg-

ulation must take effect after a period EPA deems

necessary to permit technology development “giving

appropriate consideration to the cost of compliance

within such period.” 42 U.S.C. § 7521(aX2).

As with Section 112, Congress directed EPA to

base its initial decisions to regulate both motor-

vehicle and stationary-source emissions on public

health, without regard to cost, notwithstanding that

Congress recognized those regulations would result

in costs to large industrial sectors. See Whitman, 531

U.S. at 491-92 (Breyer, J., concurring) (“[T]he 1970

Amendments were ‘expressly designed to force regu-

lated sources to develop pollution control devices that

might at the time appear to be economically or techno-

logically infeasible.’” (emphasis in original) (quoting

Union Elec., 427 U.S. at 257)).

The Act’s pattern is clear: Congress intended for

EPA, relying on its expertise, and in the case of Sec-

tion 112(nX1)(A), on the results of the Public Health

Study as well, to focus on public health, not costs,

when making the threshold decision to regulete.

Congress did not want EPA to disregard costs; rather,

it required costs to be taken into account when EPA

crafts compliance measures, including setting the

performance standards required by Sections 111 and

112. See, e.g., Whitman, 531 U.S. at 493 (Breyer, J.,

concurring) (“[T]he Act does not. wholly ignore cost

and feasibility” but instead “allows regulators to take

those concerns into account when they determine how

to implement ambient air quality standards. ~~

(emphasis added) (internal citations omitted)).

Petitioner Michigan asserts that Section 112(nX1XA)

“direct[ed] EPA to look ahead to the costs that would

be imposed at the implementation stage.” Michigan

Br. 43. There is no hint in the text of Section

112(nX1XA) that Congress intended that for power

plants — unlike any other source ~— the “threshold

question whether to regulate” would be collapsed with

the inquiry about “how regulation will be imple-

mented.” Jd. (emphasis in original). Section 112{n 1)

governs only “how the Administrator decides whether

to list [power plants].” New Jersey, 517 F.3d at 582.

Petitioner Michigan’s reliance on Natural Resources

Defense Council,: 4 F.2d at 1163, is also misplaced,

Michigan Br. 27-29, since that case provides further

support for EPA’s reading here. See supra pp. 26-27.

EPA’s decisions to consider costs in deciding the

extent of required pollution reductions from upwind

states under the Clean Air Act, as in EME Homer

City, 134 S. Ct. at 1603-04, or in setting national per-

formance standards for cooling water intake struc-

tures at power plants under the Clean Water Act, as

in Entergy Corp., 556 U.S. at 217-18, are materially

different from EPA's decision at issue here — whether

to regulate hazardous air pollutants from power

plants at all. EPA reasonably exercised its discretion

and addressed costs where expressly required to do so

by Congress, at the point of setting technology-based

standards.

D. This Court’s Precedent Recognizes No

Rule Requiring EPA to Consider Costs

When the Statute Does Not Require

EPA to Do So.

Petitioner UARG, relying on Motor Vehicle Man-

ufacturers Association v. State Farm Mutual Auto-

mobile Insurance Co., 463 U.S. 29 (1983), appears

to urge this Court to adopt a new gloss on Chevron

that would afford less deference to agencies in cases

“where costs are clearly relevant.” UARG Br. 39.

UARG advances a requirement for agencies to con-

sider costs in rulemaking whenever they are “rele-

vant” to regulated entities, and Congress has not

expressly precluded cost considerations. Jd. UARG

specifically asserts that “costs are clearly relevant”

when it comes to “regulatory decisions involving

emissions standards.” Id.

Such a new standard of review for agency rule-

making is unprecedented and particularly unwar-

ranted here, where EPA’s interpretation is true to

Section 112(n\1)(A)’s text, its statutory context, and

Congress’s intent as evidenced in the provision’s

legislative history. Under UARG’s broad “cost rele-

vance” criterion, in instances where Congress has not

clearly precluded cost consideration, agency rulemak-

ing to implement a regulatory statute that does not

make cost consideration a central factor effectively

would be deemed unreasonable per se. See id. Here,

at the very least, that result would subvert con-

gressional intent and raise significant separation-of-

powers concerns. This Court should not be “tempted

by the prospect of making public policy by prescribing

the meaning of ambiguous statutory commands.” City

of Arlington, Tex. v. F-C.C., 133 S.Ct. 1863, 1873

(2013) (cautioning that “‘judges ought to refrain from

substituting their own interstitial lawmaking’ for that

of an agency” (quoting Ford Motor Credit Co. uv.

Milhollin, 444 U.S. 555, 568 (1980))); Smiley v. Citi-

bank (South Dakota), N.A., 517 U.S. 735, 740-41

(1996) (Congress understood statutory ambiguity

would be resolved by the agency and “desired the

agency (rather than the courts) to possess whatever

degree of discretion the ambiguity allows.”); Chevron,

467 U.S. at 866 (Constitution vests in the political

branches responsibility for resolving struggle be-

tween competing views of public interest). Petitioners

fail to identify a single case — because there is none —

where this Court, or any appeals court, has required

EPA to consider costs when Congress, in the Clean

Air Act, did not require EPA to do so.

If. The States’ Experience Demonstrates that

the Air Toxics Rule Is Achievable Using

Cost-Effective, Readily Available Control

Technologies.

Petitioners claim that the Air Toxics Rule “threat-

ens to put covered electric utilities out of business,”

Michigan Br. 4; the costs to comply are “unprece-

dented,” UARG Br. 21; and the burdens imposed by

the Rule demonstrate that EPA’s decision is “utter[ly}

irrational[],” NMA Br. 19. Those claims are con-

tradicted by the States’ actual experience."® Power

plants in many states are complying with standards

more stringent than the Air Toxics Rule, using

" Other factors, including the lower cost of natural gas and

reduced demand resulting from more efficient use of energy,

would have a greater impact on projected coal plant retirements

than the Air Toxics Rule. 76 Fed. Reg. at 25,055. Indeed, EPA’s

estimate shows early power-plant retirements due to the Rule,

as of 2015, will be “less than 2 percent of all U.S. coal-fired

capacity in that year.” See 77 Fed. Reg. at 9416; see also id. at

9408.

cost-effective, available control technologies, and with-

out sacrificing electric system reliability. Indeed, it is

the actual performance of power plants employing

economically viable controls — such as those located

in states with already established state hazardous air

pollutant standards — that EPA relied on in setting

the MACT floor standards in the Rule, as required

by Section 112(d). Similarly, when making its thresh-

old Section 112(nX1XA) listing determination, EPA

found that it was “appropriate” to regulate power-

plant emissions, in part, because it had identified

available, effective control options. See 77 Fed. Reg.

at 9310; 65 Fed. Reg. at 79,830.

Since 2003, at least fifteen states have promul-

gated limits on mercury emissions from power plants.

In all but four of those states, power plants are al-

ready obligated under state law to control mercury

emissions by April 2015, when the Air Toxics Rule

takes effect, 77 Fed. Reg. at 9465, and in eight of

those states power plants were obligated to do so

more than five years ago.” Almost every state that

See 5 Coto. Cope Recs. § 1001-8:B.VIII.c (first phase

compliance by Jan. 1. 2012); Conn. GEN. Star. § 22a-19%b\1)

(compliance by Jul. 1, 2008); DEL. ADMIN. CopDE, tit. 7, § 1146-6.1

(first phase compliance by Jan. 1, 2009); 'LL. ADMIN. CoDE tit. 35,

§ 225.230(a) (compliance by Jul. 1, 2009); Mp. CoDE REGS. tit. 26,

§ 11.27.03.D (first phase compliance by Jan. 1, 2010); 310 Mass.

Cope Recs. § 7.2% 5XaX3\e) (first phase compliance by Jan. 1,

2008); MINN. R. 7011.0561, subp. 4 (A) (first phase compliance by

Jan. 1, 2018); Mont. ADMIN. R. 17.8.771(1Xb) (compliance by

Jan. 1, 2010); N.H. Rev. Stat. ANN. § 125-O:11-18, I. (compliance

by Jul. 1, 2013); N.J. ADMIN. CoDE § 7:27-27.7(a) (compliance by

(Continued on following page)

has set an output-based mercury standard has im-

posed one more stringent than the Air Toxics Rule

standard, and several are twice as stringent.” Accord-

ingly, the National Association of Clean Air Agencies

(NACAA) and several states advocated for a lower

mercury limit than the Rule imposes.” NACAA

similarly recommended a higher reduction require-

ment for sulfur dioxide, and New Jersey nr -ed that

Dec. 15, 2007); N.Y. Comp. Copes R. & Reas. tit. 6, § 246.Gc)

(first phase compliance by Jan. 1, 2010); 15A N.C. ApmMIn. CopE

2D.2511(b) ‘compliance by Dec. 31, 2017); Orn ADMIN. R. 340-

228-0606(1) (compliance by Jul. 1, 2012); Wis. ApMIN. CopE NR

§ 446.13(1) (compliance by Apr. 16, 2016); see also MicH. ADMIN.

CopE r. 336.2503%(1Xa)(b) (2009) (compliance by Jan. 1, 2015),

modified by Mic®. ADMIN. CODE r. 336.2502a (2013) (exempting

covered power plants “for which the [Air Toxics Rule] is an

applicable requirement relative to emissions of mercury” and, if

the Rule ceases to be an applicable requirement, extending

compliance date to the sooner of three months from the date of

inapplicability or April 16, 2015).

* The Air Toxics Rule imposes a mercury emission standard

of 1.2 lb/TBtu or 0.013 Ib/GWh. See 77 Fed. Reg. at 9367, Table

3. Most state rate-based standards are set at 0.6 Ib/TBtu or

0.008 lb/GW-hr. See Conn. GEN. STAT. § 22a-199%(bX1) (0.6 Ib/

TBtu); DEL. ADMIN. Cope, tit. 7, § 1146-6.2 (0.6 Ib/TBtu); ILL.

ADMIN. CODE tit. 35, § 225.230(a) (0.008 Ib/GW-hr); 310 Mass.

Cope Recs. § 7.2&5XaX3xXf) (0.0025 Ib/GW-hr); Micu. ADMIN.

Cope r. 336.250%1xb) (0.008 Ib/TBtu); Minn. R. 7011.0561,

subp. 4 (0.008 Ib/TBtu); Mont. ApMIN. R. 17.8.771 (0.9 Ib/TBtu);

N.J. ADMIN. CODE § 7:27-27.7(a) (3.00 mg/MWh (equivalent to

0.66 Ib/TBtu)); N.Y. Comp. Cones R. & REcs. tit. 6, § 246.6(a) (0.6

ib/TBtu); Or. Apmin. R. 340-228-0506(1) (0.6 Ib/TBtu); Wis.

ADMIN. CopE NR § 446.13(1) (0.008 It /“GW-hr).

" Massachusetts Cmts., J.A. 216, 225; NACAA Cmts., J.A.

301-03; Comments of the New Jersey Dep't of Envtl. Prot. (New

Jersey Cmts.), J.A. 327, 328; New York Cmts., J.A. 799.

the proposed alternate sulfur dioxide standard was

less stringent than its own standard, which its coal-

fired plants were already meeting. NACAA Cmts.,

J.A. 302-03; New Jersey Cmts., J.-A. 326, 328.

Several states, including even Petitioner Michi-

gan, reported in their comments on the proposed rule

that coal-fired power plants within their borders

could achieve the proposed mercury standard with

technologies already in place. Comments of the

Connecticut Dep’t of Energy and Envtl. Prot. (Con-

necticut Cmts.), J.A. 190-91; Massachusetts Cmts.,

J.A. 217-18, 225; Comments of the Michigan Dep't

of Envtl. Quality (Michigan Cmts.), J.A. 260-61;

New Jersey Cmts., J.-A. 322; NESCAUM Cmts., J.A.

246.” Petitioner Michigan’s Department of Envi-

ronmental Quality (DEQ), represented that “[wlith

the right combination of emission controls, the pro-

posed mercury emission limit is achievable by

existing Michigan [coal-fired] units,” citing a number

of available control technologies then being installed

* Similarly, most of Florida’s coal-fired power plants have

already implemented controls that have “significantly reduced

[those facilities’) mercury emissions” and several already meet

EPA’s proposed mercury limit using existing controls. Florida

TMDL, supra note 8, at 3, 34. In North Carolina, by 2010 power

plants had already reduced mercury emissions by seventy-two

percent from 2002 levels through controls required to meet

state-mandated sulfur dioxide and nitrogen oxide reductions.

See N.C. Dep't of Env't and Nat. Res. and N.C. Utils. Comm’n,

Implementation of the “Clean Smokestacks Act,” (June 1, 2013),

http-//daq state.nc.us/news/leg/2013_Clean_Smokestacks Act Report.

pdf at 13.

on Michigan power plants, including fabric filter

baghouses and wet and/or dry scrubber systems,

which “can be used to meet the proposed mercury

emission limit.” Michigan Cmts., J.A. 260-61. Mich-

igan DEQ raised no concerns as to either the cost

of mercury pollution control technology for existing

power plants or effects on electric system reliability.

Rather, it noted that the Michigan Public Service

Commission (responsible for utility regulation), along

with “a stakeholder workgroup consisting of industry,

environmental groups, and government agencies”

participated in the rulemaking process that led to the

development of Michigan’s own standard, which at

that time would have required as one of three compli-

ance options for existing coal-fired plants a “muini-

mum of 90% reduction from baseline input mercury

levels” or an output-based mercury emission standard

more stringent than the Air Toxics Rule. /d., J.A. 261-

62; see supra notes 17, 18.

Power plants in Connecticut, Massachusetts, and

New Jersey were complying with those states’ mer-

cury standards three to four years prior to EPA’s 2011

issuance of the proposed rule, using technologies such

as activated carbon injection, scrubbers, baghouses,

and dry sorbent injection. See Connecticut Cmts., J.A.

187, 190-91; Massachusetts Cmts., J.A. 224-25; New

Jersey Cmts., J.A. 327; NESCAUM Cmts., J.A. 241-

46 (noting that several Connecticut and Massachu-

setts units have relied on existing scrubbers and

fabric filters to meet mercury limits).” States’ suc-

cessful implementation of control measures to achieve

reductions in sulfur dioxide and nitrogen oxides re-

quired by EPA pursuant to other Clean Air Act pro-

grams similarly demonstrates that the Air Toxics

Rule can timely be implemented without disrupting

electric system reliability. NACAA Cmts., J.A. 297-98

(citing EPA’s 2005 “Clean Air Interstate Rule™ and

1998 “NOx SIP Call””). To comply with the Clean Air

Interstate Rule, for example, power plants installed

a substantial number of new scrubbers (a key tech-

nology to meet mercury and acid gas limits required

by the Air Toxics Rule) — within four years, the time

period allowed for Air Toxics Rule compliance. /d.,

J.A. 296, 297-98.”

When EPA proposed the Air Toxics Rule in 2011,

sixty percent of the U.S. coal fleet (based on capacity)

* See also NACAA Cmts., J.A. 297-98 (“To our knowledge,

no source has failed to comply with state deadlines for achieving

[mercury] limitations, and no significant adverse impacts on

electric system reliability were encountered as units were up-

graded to meet state requirements.”).

™ The Clean Air Interstate Rule, 70 Fed. Reg. 25,162 (May

12, 2005), was replaced by the Cross-State Air Pollution Rule, 76

Fed. Reg. 48,208 (Aug. 8, 2011), upheld in EME Homer City, 134

S. Ct. at 1584.

* See 63 Fed. Reg. 57,356 (Oct. 27. 1998) (requiring certain

states to revise their state implementation plans (SIPs) to re-

duce emissions of nitrogen oxides).

“ Section 112(iX3) allows three years for compliance plus

one additional year if “necessary for the installation of the con-

trols.” 42 U.S.C. § 7412(ix3XA), (B).

had scrubbers — the most capital-intensive technology

potentially needed for Air Toxics Rule compliance —

installed or under construction, thirty-five pércent

had fabric filters, and seventy percent had electro-

static precipitators. Comments of Exelon Corp. (Ex-

elon Cmts.), J.A. 644-45; see also NESCAUM Cmts.,

JA. 246-47 (providing unit-based statistics). Acti-

vated carbon injection was already installed or re-

ported to be on order for power plants representing

approximately twenty percent of total coal-fired

capacity. NESCAUM Cmts., J.A. 246-47 (noting that

62.5 GW of capacity had the technology installed or

booked); Exelon Cmts., J.A. 576 (noting that the U.S.

coal fleet represents 310 GW of generating capacity).”

Without the Air Toxics Rule, however, some of these

plants may not operate their installed controls at all,

or to the extent necessary to reduce emissions to the

level required by the Rule, because it costs money to

do so, reducing earnings. Respondents Calpine Corp.,

et al., Cert. Opp’n Br. 6-7. The Air Toxics Rule will

ensure these controls are operated consistently to

achieve the required reductions.

Also by 2011, nearly half of the 339 existing coal-

fired units for which EPA had mercury data already

met EPA’s proposed mercury limit. NACAA Cmts.,

* The costs of activated carbon injection, which has suc-

cessfully controlled mercury emissions from municipal waste

combustors, have declined significantly since 2001, when the

Department of Energy began full-scale testing of this technology

in coal-fired power plants. New York Cmts., J.A. 802-06.

J.A. 298. EPA estimated in 2012 that 69 of the 252

existing units for which it had data on all relevant

pollutants already met all of the proposed limits in

the Air Toxics Rule. 77 Fed. Reg. at 9387. By the end

of 2012, sixty-four percent of U.S. coal-fired power

capacity had adequate control equipment in place to

comply with the Air Toxics Rule in its entirety. EIA

Report, supra note 1. That on-the-ground reality,

along with the States’ experience implementing strin-

gent state mercury standards and EPA rules requir-

ing technological controls similar to those required by

the Air Toxics Rule, demonstrates that Petitioners’

claims of widespread adverse effects on industry and

consumers lack a basis in fact.

Ii. Even if Costs Are Considered, EPA’s Find-

ings, as Set Forth in the Regulatory Impact

Analysis, Overwhelmingly Support Its Ap-

propriate and Necessary Determination.

Even if EPA were required to consider costs at

the threshold listing stage, EPA’s benefit cost analysis

in the RIA shows the Air Toxics Rule’s benefits vastly

outweigh its costs and EPA could reasonably have

found it appropriate to regulate. Petitioners disregard

EPA’s full analysis of benefits, wrongly contend the

costs of the Rule outweigh its benefits, and, in

UARG’s case, go so far as to claim that the Rule will

produce “zero” public health benefits at the expense

of consumers. UARG Br. 43; Michigan Br. 32; NMA

Br. 19.

To the contrary, and given that there are such

“limited resources available to deal with grave envi-

ronmental problems,” Entergy Corp., 556 U.S. at 232

(Breyer, J., concurring), the Rule, as the RIA amply

demonstrates, is a bargain. Compliance will achieve

sharp reductions in toxic pollution, including a seventy-

five percent reduction, by 2015, in mercury emissions

— while also producing substantial co-benefits, such

as emissions reductions in fine particulate matter,

greenhouse gases, and non-hazardous pollutants. 77

Fed. Reg. at 9424, 9428-32; RIA, J.A. 925. Effects

on electricity prices will be modest. EPA’s analysis

shows that, even with the Air Toxics Rule in effect,

electricity prices are projected to be Jower in 2015 and

2020 than they were in 2010. See 77 Fed. Reg. at

9414.

Contrary to Petitioner Michigan’s assertion that

co-benefits from reduced fine particulate matter emis-

sions are “not relevant” to EPA’s decision to regulate,

Michigan Br. 48, reducing that pollution will directly

benefit public health by reducing exposure to the non-

mercury metals — such as arsenic and selenium -

which make up a significant portion of the fine par-

ticuiate matter emitted by coal-fired power plants, see

Pub. Health Grps. Cmts., J.A. 343, 345. Moreover,

Congress has long recognized that “MACT standards

would have the collateral benefit of controlling crite-

ria pollutants as well [as hazardous air pollutants]

and viewed this as an important benefit of the air

toxics program.” 77 Fed. Reg. at 9406 (citing S. Rep.

No. 101-228, at 172, 1990 U.S.C.C.A.N. at 3557).

As a practical matter, the RIA’s extensive and

well-documented benefit cost analysis establishes the

cost effectiveness of the Rule. Any additional re-

quirement to formalize that analysis as part of EPA’s

rulemaking would further delay implementation of

long-overdue and urgently needed federal regulation

of power-plant hazardous air pollution.

CONCLUSION

Petitioners’ proper recourse lies with Congress,

not this Court. It was Congress, not EPA, that placed

public health at the heart of EPA’s decision to regu-

late the hazardous air pollution emitted by power

plants. EPA permissibly concluded that, in determin-

ing whether regulation is “appropriate and neces-

sary,” it should focus its attention on factors relating

to public health hazards, and not industry’s objections

that emissions controls are costly, properly putting

“the horse before the cart, and not the other way

around.” NMA Pet. App. 29a.

The decision below should be affirmed.

Respectfully submitted,

MAURA HEALEY

Attorney Genera! of Massachusetts

MELISSA HOFFER*

TRACY L. TRIPLETT

Assistant Attorneys Genera!

ENVIRONMENTAL PROTECTION DIVISION

One Ashburton Place, 18th FI.

Boston, MA 02108

617-963-2322

melissa.hoffer@state.ma.us

*Counsel of Record

Dated: February 25, 2015

KAMALA D. HARRIS MATTHEW P. DENN

Attorney General Attorney General

of California of Delaware

1515 Clay St., 20th Fi. 820 N. French St.

P.O. Box 70550 Wilmington, DE 19801

Oakland, CA 94612 Lisa MADIGAN

GEORGE JEPSEN Attorney General

Attorney General! of Illinois

of Connecticut 100 W. Randolph St.

55 Elm St. 12th FI.

Hartford, CT 06141 Chicago, IL 60601

THOMAS J. MILLER Eric T. SCHNEIDERMAN

Attorney General oflowa Attorney General of

1305 E. Walnut St. New York

Des Moines, IA 50319 The Capitol

JANET T. MILLS Albany, NY 12224

Attorney Genera! Roy CooPpER

of Maine Attorney General of

6 State House Station North Carolina

Augusta, ME 04333 P.O. Box 629

Renan B Pacen Raleigh, NC 27602

Attorney Genera! of ELLEN F. ROSENBLUM

Maryland Attorney General of

1800 Washington Blvd. Oregon

Baltimore, MD 21230 1162 Court St. NE

Lone Sumsences Salem, OR 97301

Attorney General! PETER F. KILMARTIN

of Minnesota Attorney General of

(for the Minnesota Rhode Island

Pollution Control Agency) 150 South Main St.

445 Minnesota St. Providence, RI 02903

Suite 900

WILLIAM H. SORRELL

St. Paul, MN 55101 Attorney General of

JOSEPH A. FOSTER Vermont

Attorney General of 109 State St.

New Hampshire Montpelier, VT 05609

33 Capitol St. Kar. A. RACIME

Concord, NH 03301 Attorney General for the

HECTOR BALDERAS District of Columbia

Attorney Genera! of 441 4th St., NW

New Mexico Washington, DC 20001

P.O. Box 1508

GEORGE A. NILSON

Santa Fe, ND 87504 City Solicitor for the

City of Baltimore

100 Holliday St.

Baltimore, MD 21202

STEPHEN R. PATTON

Corporation Counsel of

the City of Chicago

30 N. LaSalle St.

Suite 800

Chicago, IL 60602

MICHAEL A. SIRAGUSA

County Attorney for the

County of Erie

95 Franklin St.

Room 1634

Buffalo, NY 14202

ZACHARY W. CARTER

Corporation Counsel of

the City of New York

100 Church St.

New York, NY 10007

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.