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

MAR 4- 2015

Nos. 14-46, 14-47 and 14-49

(ESE ERE A RE Ee ET EET TT ERT IT

IN THE

Supreme Court of the ieee States

STATE OF MICHIGAN, ET AL., PETITIONERS

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS

UTILITY AIR REGULATORY Group, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS

—- -—_-

NATIONAL MINING paaoceTon. PETITIONER

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS

On Writs of Contievent to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF UNION OF CONCERNED SCIENTISTS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

WENDY B. JACOBs

Counsel of Record

SHAUN A. GOHO

EMMETT ENVIRONMENTAL

LAW & POLICY CLINIC

HARVARD LAW SCHOOL

6 Everett St., Suite 4119

Cambridge, MA 02138

617-496-2058

wjacobsG@law.harvard.edu

Counsel for Amicus Curiae

Union of Concerned Scientists

I a

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .......---:-2-eseeeeesesesenenanensnennnnnses i

TABLE OF AUTHORITIEG........-----0.e-see:s2eeeeeeeeeeee* iii

INTEREST OF THE AMICUS CURIAE...........-..2+++++ 1

SUMMARY OF ARGUMENT ........-..--:ces:sseeeseeeerereenees 2

ARGUMENT. ......-..---:--sseesseeeseneesenesensennncannnansnsennnannnanns 3

I. EPA’s determination under paragraph 7412(n)(1)

that regulation of EGU HAP emissions was

“appropriate and necessary” to protect public

health was reasonable. ............:ccssseesereeeesreesetteees 3

A. Paragraph 7412(n)(1) was enacted to delay

regulation of EGUs under section 7412 until

EPA could assess the impact of the Title IV

acid rain control program. .......-...s-s+-sseeeereeee 4

B. Congress enacted paragraph 7412(n)(1)

against the backdrop of scientific uncertainty

regarding both the public health impacts and

air transport of mercury emitted by EGUs. ..9

C. EPA appropriately declined to take cost into

account when deciding whether to regulate

the electric utility industry under section

7412, but properly considered costs in setting

the regulatory standards.........-....:s+sssesssreee 11

Il. The structure and language of the CAA plainly

dictate that the 7412(n) finding should be based

on a scientific determination of public health

{MpAacts, NOt COSt. ........-.--eereeeerneseteeretnaneetrnenetses 14

III. The legislative history and contemporaneous

understanding of the 1990 Amendments to the

ii

CAA confirm that EPA was supposed to base the

finding on scientific study, nut c~sts. ................. 17

A. The drafting process of paragraph 7412(n)(1)

reflects Congress's focus on public health

impacts rather than on cost as the basis for

applying section 7412 to EGUs.................... 17

B. Contemporaneous statements in the media

and from the electric utility industry reflect

the understanding that EPA’s “appropriate

and necessary” finding was to be based on

the results of scientific studies, not cost......19

IG sctticcessscnnntinicinneveensemmniiarnianaoumane 21

ili

TABLE OF AUTHORITIES

Page(s)

CASES

Coal. for Responsible Regulation v. EPA, 684 F.3d

102 (D.C. Cir. 2012) (per curiam), affd in part &

reud in part, Util. Air Regulatory Grp. v. EPA, 134

i Ge I I cnterssincsnkctesnsastetedenitinbtiaousblabadinha 16

Sossamon v. Texas, 131 S. Ct. 1651 (2011) .............. 14

Whitman vu. Am. Trucking Ass’ns, 531 U.S. 457

SEIT Uihsdss-sniccdapacdahinniicretiasgslddbutntasinnantaakeditsasanianianrinds 15

STATUTES

ei Oe I senkaicontscsedctcccccennadissvrctinnidiuans 15

as Be Oe RD tesa sesicnctcseinsunessisnininicdeenend 16

ee ee D crsitetettntcanentprnnn nissinensdiincinenn 5

ee ee iokietteniintiteecinticicnstainasenbivsosnnteasausinpent 5

ge Nena ciincnsieu saLtcsaiocbninerbisodiedcinuberneeteel 3

ee Oe Din didcaktoscivecsicendsencedndaveinimnpcatinns 5

ee eisai cicebsinncintaninsearevitivvccesesaie an 5

Fees Sh. PR icicadnskccdctpecceseesacinschees passim

iv

Es FI, GD teccccteredacensccnecscenseeces 6,18

es Oe FID pirthctcccicatrnnanintaanadsedeiesoninlecnnes 16

Clean Air Act Amendments of 1990, tit. IV, Pub. L.

No. 101-549, 104 Stat. 2399 (1990) (codified at 42

RT eS SEE or RD LEP RKO: 7

ADMINISTRATIVE MATERIALS

56 Fed. Reg. 28,548 (June 21, 1991)............ ee eeeeeeees 19

ce, e & 5... D ) eee 14

EPA, Mercury Study Report to Congress (Dec. 1997)

EPA, Regulatory Finding on the Emissions of

Hazardous Air Pollutants from Electric Utility

Steam Generating Units, 65 Fed. Reg. 79,830 (Dec.

II issuers s nthe rthcnede santa aceiatintsanhioanipbaantines 13, 14

EPA, Study of Hazardous Air Pollutant Emissions

from Electric Utility Steam Generating Units -

Final Report to Congress (Feb. 1998).................... 11

LEGISLATIVE HISTORY

Envt & Natural Res. Div., Library of Cong., A

Legislative History of the Clean Air Act

II GE Be itttaininccaessccnesdesencesscavouns passim

OTHER AUTHORITIES

After Intense Industry Lobbying EPA Officials Seek

Indefinite Delay of Controversial Mercury Study,

Inside EPA’s Clean Air Report, Apr. 5, 1996, at 1

Winston Chow et al., Managing Air Toxics under

New Clean Air Act Amendments: Pollution Control

for Electric Power Plants, Power Engineering, Jan.

Bi, Sac EE Gl icetrhcnastetewenhsntecipacsnpatulacansianctacnntatansiies 21

Comments of Edison Electric Institute, Docket No. A-

ee OE 2 ey ek EE hiseesictinenddrecnionseccctntsenecads 19

Comments of the Utility Air Regulatory Group,

Docket No. A-90-49, at 3 (July 22, 1991)........ 19, 20

Draft Report Calls for Regulation of Utility Air

Toxics, Electric Utility Week, Aug. 26, 1991, at 6

EPA Extends Study of Power Plant Generated Toxics,

18 Coal Week, no. 21, at 8 (May 25, 1992)............ 12

Alice Kaswan, Climate Change, the Clean Air Act,

and Industrial Pollution, 30 UCLA J. Envtl. L. &

Bally G1, 190 COED osc cccenccccsncesersesccseccesscesecocesenensons 8

Gerald J. Keeler et al., Sources of Mercury Wet

Deposition in Eastern Ohio, USA, 40 Envtl. Sci. &

ee CIE ratesctpesaesnenentndapnniudediancgnnseeucennbiaite 14

vi

R.C. Rittenhouse, Action Builds on the Road to CAA

Compliance, Power Engineering, June 1, 1992, at

i iisccascsenbansonicnmiicasatinatipaiaenesaacidudaentteaceakensdenian 20

Senate Tackles Long List of Clean Air Amendments,

But Not Acid Rain, Electric Utility Week, Mar. 26,

Byron Swift, How Environmental Laws Work: An

Analysis of the Utility Sector’s Response to

Regulation of Nitrogen Oxides and Sulfur Dioxide

under the Clean Air Act, 14 Tul. Envtl. L.J. 309,

Be Tait incnientintaedeheciaiebicnnceenediosiahatndietneamadumneciaiagleninsieed 8

Utilities Advised to “Think Toxics” when Deciding

Acid Rain Strategies, Utility Environment Report,

I: Be Sa HE OF ak detads reencdcanatecastnsteaacetedacenuabees 12

Utilities Fear Senate Clean Air Mandate for Air-

Toxic Controls, Electric Utility Week, Jan. 22,

1

INTEREST OF THE AMICUS CURIAE!

The Union of Concerned Scientists (““UCS”), an

alliance of more than 450,000 citizens and scientists,

is the leading U.S. non-profit organization dedicated

to the use of science to foster a healthy environment

and a safer world. UCS combines independent scien-

tific research and citizen action to develop innovative

and practical solutions to pressing environmental

and security problems and to secure responsible

changes in government policy, corporate practices,

and consumer choices.

UCS has a particular interest in this case be-

cause it raises important questions about the role of

science in establishing standards for protecting pub-

lic health from the threats caused by hazardous air

pollutants (“HAPs”), including mercury. UCS has

long advocated for controls on hazardous air and

water pollutants such as mercury to be based on the

best available science, and a decision affirming the

lower court would advance that fundamental goal.

However, a decision reversing the lower court, and

requiring the Environmental Protection Agency

(“EPA”) to consider cost as part of the “appropriate

and necessary” determination about whether to regu-

late HAP emissions from the electric utility industry,

would undermine the goal of science-based public

health decision-making, expose the public to unac-

1 All counsel of record have consented to the filing of this brief

and those consents are on file with the Clerk of the Court. No

counsel for any party authored this brief either in whole or in

part. No persons other than amicus or its counsel has made

any monetary contribution to the preparation or submission of

this brief.

2

ceptable threats from HAP pollution, and contravene

the Clean Air Act. The Act explicitly requires cost to

be taken into consideration in setting the standards

applicable to the industry after EPA has first de-

cided, based on the science, that it is “appropriate

and necessary” to regulate the industry.

SUMMARY OF ARGUMENT

Paragraph 7412(n)(1) of the Cleam Air Act

(“CAA”) and Title IV of the CAA were both enacted in

1990 and both apply exclusively to the electric utility

industry. They bear a unique relationship to each

other and must be considered together. Congress's

instruction to EPA that the agency must regulate

HAP emissions from electric utility steam generating

units (““EGUs”) if the agency determined that such

regulation was “appropriate and necessary” based on

scientific analysis and not on cost is informed by

Title IV for the reasons articulated below.

During the enactment of the 1990 CAA amend-

ments, Congress significantly revised section 7412 to

expedite control of emissions of HAPs, which Con-

gress had already determined pose serious threats to

public health. The electric utility industry, however,

urged Congress to delay application of section 7412

to its EGUs until EPA resolved three uncertainties

regarding the application of the revised section 7412

to emissions from EGUs. First, the industry argued

that the new Title IV acid rain control program

might render section 7412 regulation of EGUs unne-

cessary because HAP emissions would be adequately

addressed by this market-based program. Second,

the industry contended that significant scientific

uncertainty existed about the public health impacts

3

of HAP emissions from EGUs. Third, it asserted that

mercury emissions are transported through the at-

mosphere on a global scale and that reductions in

U.S. emissions would therefore be useless. None of

these uncertainties related to the costs of controlling

HAP emissions from EGUs.

In response to these uncertainties, Congress de-

cided to delay application of section 7412 to HAP

emissions from the electric utility industry while

instructing EPA and the National Institute of Envi-

ronmental Health Sciences (“NIEHS”) to complete

scientific studies. The statute plainly directs EPA to

render a scientific judgment about whether to regu-

late the electric utility industry under section 7412

based on the results of one of these studies in partic-

ular, the one that analyzed the public health impacts

of EGU HAP emissions remaining after the imple-

mentation of other parts of the CAA. 42 U.S.C. §

7412(m)(1)(A). As directed by the text of paragraph

7412(n)(1), EPA studied these issues, found that

HAPs emitted from EGUs posed a substantial threat

to public health, even after industry compliance with

Title IV, and determined that regulation under sec-

tion 7412 was therefore “appropriate and necessary.”

In doing so, EPA considered the factors Congress

directed it to address. Congress directed that cost

enter the calculation only later, at the stage of set-

ting the standards that would apply to the industry

under section 7412. Id. § 7412(d).

ARGUMENT

I. EPA’s determination under paragraph

7412(n)(1) that regulation of EGU HAP

4

emissions was “appropriate and necessary”

to protect public health was reasonable.

Paragraph 7412(n)(1) directed EPA to delay reg-

ulation of EGU HAP emissions pending scientific

study of the public health impacts of those emissions

remaining after implementation of Title IV of the

1990 CAA amendments. The delay provided in pa-

ragraph 7412(n)(1) reflected Congress’s desire that

EPA should determine whether the Title IV acid rain

control program would, as industry claimed, have the

co-benefit of adequately reducing EGU HAP emis-

sions. The delay was also intended to address scien-

tific uncertainty regarding the public health impacts

of EGU emissions of HAPs and the air transport of

mercury emissions in particular. By basing the “ap-

propriate and necessary” finding on its determina-

tion that EGU HAP emissions continued to pose

serious public health problems after the implementa-

tion of Title IV, EPA properly declined to address

costs at this stage of the regulatory process.

A. Paragraph 7412(n)(1) was enacted to de-

lay regulation of EGUs under section

7412 until EPA could assess the impact

of the Title IV acid rain control pro-

gram.

The 1990 amendments to section 7412 expressed

Congress’s determination that the emission of HAPs

was a significant public health problem that had to

be addressed immediately. Congress had first regu-

lated HAPs under the 1970 Clean Air Act Amend-

ments using a risk-based approach. Because, for

many HAPs, there is no safe level of exposure, the

risk-based approach led to regulatory paralysis, as

5

EPA declined to regulate HAPs for fear of shutting

down entire industries. The Senate concluded that:

The law has worked poorly. In 18 years, EPA

has regulated only some sources of only sev-

en chemicals. One reason the law has

worked poorly is the standard of protection

required. An ample margin of safety has

been interpreted by many to mean zero expo-

sure to carcinogens, because any amount of

exposure may cause a cancer. EPA has not

been willing to write standards so stringent

because they would shutdown major seg-

ments of American industry.

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

tion marks omitted), reprinted in 5 Env’'t & Natural

Res. Div., Library of Cong., A Legislative History of

the Clean Air Act Amendments of 1990, at 8338,

8468 (1993) [hereinafter “1990 CAA Leg. Hist.”].

Thus, in 1990, Congress completely “restructured

[section 7412] to provide EPA with authority to regu-

late industrial and area sources of categories of air

pollution (rather than the pollutants) in the near

term.” Jd. at 133. Congress did so by listing 189

HAPs in the statute itself, 42 U.S.C. § 7412(b)(1),

and requiring EPA first to list sources of those emis-

sions and then to establish emissions standards

according to a strict timetable, id. § 7412(c)(1), (d){1),

(e). Congress also, however, delayed application of

section 7412 to one source of HAPs emissions—the

electric utility industry. In particular, subparagraph

7412(n)(1)(A) provides that:

6

The Administrator shall perform a study of

the hazards to public health reasonably an-

ticipated to occur as a result of emissions by

electric utility steam generating units of pol-

lutants listed under subsection (b) of this sec-

tion after imposition of the requirements of

this chapter. The Administrator shall re-

gulate electric utility steam generating units

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.

Id. § 7412(n)(1)(A). Subparagraphs 7412(n)(1)(B)

and (C) required EPA and the NIEHS to conduct

additional scientific studies on mercury emissions

and the public health impacts of those emissions. Id.

§ 7412(n)(1)(B), (C).

Paragraph 7412(n)(1) was the product of a com-

promise. On the one hand, some members of Con-

gress urged that EGUs should be regulated imme-

diately, because it would be “inequitable to impose a

regulatory regime on every industry in America and

then exempt a category like power plants which

are a significant part of the air toxics problem.” 136

Cong. Rec. 36,062 (1990) (Statement of Sen. Duren-

berger), reprinted in 1 1990 CAA Leg. Hist. at 871.

On the other, some members questioned the need to

regulate HAP emissions from EGUs. See id. at

11,903 (1990) (Statement of Rep. Bliley), reprinted in

2 1990 CAA Leg. Hist. at 2724 (asserting that “to

require EPA to impose an additional layer of regula-

tion on sources that EPA may determine will be

7

appropriately controlled by another regulatory pro-

gram would yield no environmental benefits”).

The compromise that emerged called for a “delay

and study” approach. One purpose of the delay was

to determine whether the electric utility industry

would incidentally control HAP emissions from

EGUs as a result of complying with Title IV. Indeed,

the electric utility industry forcefully argued to Con-

gress that the actions it would take to comply with

Title IV could have the co-benefit of reducing HAP

emissions. See p. 8, infra. Congress therefore

drafted paragraph 7412(n)({1) to allow EPA time to

assess the impact of the industry's compliance with

Title IV before deciding whether listing under section

7412 was appropriate and necessary for EGUs.

Under Title TV. EGUs are subject to a market-

based allowance-trading program for sulfur dioxide

as well as strict controls on emissions of nitrogen

dioxide. See Clean Air Act Amendments of 1990, tit.

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

fied at 42 U.S.C. §§ 7651-765lo). In the trading

program, an annual cap is set on the total amount of

sulfur dioxide emissions allowed from EGUs. Emis-

sion “allowances” are then distributed among the

regulated EGUs, and each EGU must turn in an

allowance for every ton of sulfur dioxide it emits.

EGUs that achieve additional emissions reductions

may sell their surplus allowances, while EGUs that

do not meet emission limits must buy the additional

allowances necessary to cover the difference. Thus

Title IV provided the electric utility industry with

flexibility to choose the level of control and which

8

technologies or strategies to adopt and apply to indi-

vidual EGUs.

The electric utility industry argued that com-

pliance with Title IV could also help it substantially

decrease emissions of HAPs, making the simultane-

ous imposition of section 7412 “excessive and unne-

cessary.” See 136 Cong. Rec. 35,075 (1990) (State-

ment of Rep. Oxley), reprinted in 1 1990 CAA Leg.

Hist. at 1416 (expressing the belief that regulation of

EGUs under other new CAA “programs will result in

substantial reductions in emissions of conventional

and potentially hazardous air pollutants”).2 Con-

gress therefore directed EPA to delay listing EGUs

under section 7412 in order to provide the industry

an opportunity to deal with HAP emissions through

actions that it would take to comply with the acid

2 At the time, it was understood that potential strategies for

complying with Title IV included the use of scrubbers and

switching to low-sulfur coal. Scrubbers would have the co-

benefit of removing some HAPs, while fuel switching would not.

See Alice Kaswan, Climate Change, the Clean Air Act, and

Industrial Pollution, 30 UCLA J. Envtl. L. & Pol'y 51, 112

(2012) (describing how switching to low-sulfur coal reduces

sulfur emissions but does not necessarily reduce emissions of

other pollutants such as particulates and mercury). In 1990,

many people believed that installing scrubbers would be the

less costly, and therefore more the widely adopted, approach to

complying with Title IV. See Byron Swift, How Environmental

Laws Work: An Analysis of the Utility Sector’s Response to

Regulation of Nitrogen Oxides and Sulfur Dioxide under the

Clean Air Act, 14 Tul. Envtl. L.J. 309, 330 (2001) (describing

the “initial expectation[]” that scrubbing was the less costly of

the two principal compliance methods). In the end, most utili-

ties chose to comply with Title [TV through fuel switching or

buying emissions allowances. See p. 13, infra.

9

rain control program. However, the statute directed

EPA to regulate EGUs like any other source category

under section 7412, if EPA determined that Title IV

and other provisions of the CAA did not adequately

address the public health impacts of EGU HAP

emissions.

B. Congress enacted paragraph 7412(n)(1)

against the backdrop of scientific un-

certainty regarding both the public

health impacts and air transport of

mercury emitted by EGUs.

Apart from the question whether Title IV com-

pliance would reduce HAP emissions from EGUs, the

electric utility industry and its allies in Congress

argued that a “delay and study” approach was neces-

sary due to scientific uncertainty regarding the air

transport of mercury emissions and the impact of

those emissions on public health. For instance, Rep-

resentative Oxley asserted that “[t]he conferees

agreed to the House provisions because of the logic of

basing any decision to regulate on the results of

scientific study.” 136 Cong. Rec. 35,075 (1990)

(Statement of Rep. Oxley), reprinted in 1 1990 CAA

Leg. Hist. at 1416; see also id. at 3498 (Statement of

Sen. Symms), reprinted in 4 1990 CAA Leg. Hist. at

5241 (stating that such an approach “wisely incorpo-

rated a thorough scientific review of the possible

health benefit from the utility powerplant regulation

for air toxics prior to the imposition of any regula-

tions”).

In the Senate, the electric utility industry there-

fore lobbied for an amendment to section 7412 known

as the Heflin amendment, which required the com-

10

pletion of scientific studies by EPA and NIEHS to

determine whether emissions of mercury and other

HAPs from EGUs posed a significant public health

risk. Senate Tackles Long List of Clean Air Amend-

ments, But Not Acid Rain, Electric Utility Week,

Mar. 26, 1990, at 17 (documenting electric utility

industry groups petitioning for the Heflin amend-

ment); see also 136 Cong. Rec. 6435 (1990), reprinted

in 4 1990 CAA Leg. Hist. at 7139-40 (text of the

Heflin amendment). Representatives of the electric

utility industry expressed satisfaction with the re-

sulting “delay and study” approach. See Utilities

Fear Senate Clean Air Mandate for Air-Toxic Con-

trols, Electric Utility Week, Jan. 22, 1990, at 9 (quot-

ing a representative of Southern Company Services

as saying that a “three-year study is acceptable to

utilities because, if it does show a need for some

controls, they will be imposed on a foundation of

research”).

The electric utility industry also argued that it

was unclear whether mercury emissions from EGUs

deposited locally or globally. If it were the latter,

then strict regulation of domestic sources might not

significantly improve public health.

First, {the electric utility industry] argued

that mercury isn’t much of an environmental

problem. But as the evidence mounted over

the summer and it became clear that mer-

cury is a substantial threat to the health of

our lakes, rivers and estuaries and that po-

werplants are among the principal culprits,

they changed their tactic. Now they are ar-

guing that mercury is a global problem so se-

11

vere that just cleaning up U.S. powerplants

won't make enough of a difference to be

worth it. They’ve gone from “we’re not a

problem” to “you can’t regulate us until you

address the whole global problem.”

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

renberger), reprinted in 1 1990 CAA Leg. Hist. at

871.

In response to these questions, Congress ordered

EPA to study the hazards to public health from

HAPs, including mercury, emitted from EGUs, after

the imposition of controls under Title IV and other

parts of the CAA. See 42 U.S.C. § 7412(n)(1)(A). If

EPA concluded, based on the study, that regulation

was “appropriate and necessary,” then, Congress

ordered, the agency “shall regulate [EGUs] under

this section.” Jd. EPA’s task was an essentially

scientific one, based on addressing the three types of

uncertainties identified above. The costs of regula-

tion played no role at this stage of the regulatory

process.

C. EPA appropriately declined to take cost

into account when deciding whether to

regulate the electric utility industry

under section 7412, but properly consi-

dered costs in setting the regulatory

standards.

EPA completed the scientific studies mandated

by paragraph 7412(n)(1) by 1998. See EPA, Study of

Hazardous Air Pollutant Emissions from Electric

Utility Steam Generating Units — Final Report to

Congress (Feb. 1998) fhereinafter “Utility Study’);

12

EPA, Mercury Study Report to Congress (Dec. 1997)

(hereinafter “Mercury Study”].2 These studies con-

clusively demonstrated that the electric utility in-

dustry failed to reduce its mercury emissions by

compliance with Title [V and that mercury and other

HAP emissions from EGUs continued to pose a se-

rious public health threat that could be managed by

U.S. regulation. Hence, in 2000, EPA found it “ap-

propriate and necessary” to regulate EGU HAP

emissions under section 7412.

The studies dispelled any notion that regulation

of EGUs under the acid rain control program had

eliminated or would eliminate public health prob-

lems from EGU HAP emissions. Even though it was

widely understood in the early 1990s that regulation

of EGUs under section 7412 was impending if Title

IV compliance failed to reduce HAP emissions from

EGUs, see, e.g., Utilities Advised to “Think Toxics”

when Deciding Acid Rain Strategies, Utility Envi-

ronment Report, Nov. 15, 1991 at 3, the electric utili-

3 Excerpts from the Utility Study and Mercury Study are repro-

duced in the Joint Appendix. The full Utility Study is available

at http://www.epa.gov/ttn/atw/combust/utiltox/eurtel.pdf and

the Mercury Study is available at

http://www.epa.gov/mercury/report.htm. The delays in complet-

ing the studies were due to both the complexity of the issues,

see EPA Extends Study of Power Plant Generated Toxics, 18

Coal Week, no. 21, at 8 (May 25, 1992) (attributing the delays to

“the sheer complexity of the matter), and intense lobbying from

the electric utility industry, see After Intense Industry Lobbying

EPA Officials Seek Indefinite Delay of Controversial Mercury

Study, Inside EPA’s Clean Air Report, Apr. 5, 1996, at 1 (de-

scribing the “fierce lobbying effort by industry officials to delay

releasing the [mercury] report’).

13

ty industry nonetheless chose compliance strategies

under Title [TV that did not reduce HAP emissions.

In particular, 80% of units regulated under Phase I

of Title [V either switched to low-sulfur coal or pur-

chased additional emission allowances, see JA 117—

19, neither of which reduce HAP emissions.

Further, the Utility Study projected that, even

taking into account Title ITV compliance methods,

HAP emissions from EGUs were “predicted to in-

crease 10 to 30 percent by the year 2010.” JA 106.

Thus, in 2000 EPA concluded in its appropriate and

necessary finding that “the implementation of other

requirements under the CAA [would] not adequately

address the serious public health and environment»!

hazards arising from [EGU HAP] emissions.” EPA,

Regulatory Finding on the Emissions of Hazardous

Air Pollutants from Electric Utility Steam Generat-

ing Units [hereinafter “Appropriate and Necessary

Finding’, 65 Fed. Reg. 79,830 (Dec. 20, 2000).

The studies also confirmed that mercury emis-

sions from EGUs do pose a significant threat to pub-

lic health, leading EPA to find in the appropriate and

necessary finding that “the available information

indicate[d] that mercury emissions from electric

utility steam generating units comprise a substantial

portion of the environmental loadings and are a

threat to public health.” Jd. at 79,827. Moreover,

the Mercury Study required by 112(n)(1)(B) rejected

the idea that mercury emissions are exclusively a

global problem, instead finding that the majority of

domestic mercury deposition comes from domestic

rather than foreign sources. JA 29 (noting that, of

the 87 tons of anthropogenic mercury deposited in

14

the United States annually, 52 tons are from domes-

tic sources and 35 tons are from foreign sources).

Additionally, the appropriate and necessary finding

explained that “60 percent of the total mercury depo-

sited in the U.S. comes from U.S. anthropogenic air

emission sources” and EGUs constituted “30 percent

of current U.S. anthropogenic emissions.” Appropri-

ate and Necessary Finding, 65 Fed. Reg. at 79,827.4

EPA’s finding of “appropriateness” of regulating

EGUs under paragraph 7412(n)(1) was properly

made on the basis of the scientific studies without

regard to cost. Cost would be taken into account at

the next stage under subsection 7412(d).

Il. The structure and language of the CAA

plainly dictate that the 7412(n) finding

should be based on a scientific determina-

tion of public health impacts, not cost.

The word “appropriate” is “inherently context-

dependent,” Sossamon v. Texas, 131 S. Ct. 1651,

1659 (2011), and thus it must be interpreted with the

surrounding language in mind. Subparagraph

7412(n)(1)(A) clearly instructs EPA to make the

“appropriate and necessary” finding “after consider-

ing the results of the study required by th[at] subpa-

ragraph.” 42 U.S.C. § 7412(n)(1)(A) (emphasis add-

4 Subsequent studies confirmed this finding. For example, one

paper found that approximately 70 percent of mercury collected

at a monitoring station in Steubenville, Ohio was attributable

to deposition from several local upwind coal plants. Gerald J.

Keeler et al., Sources of Mercury Wet Deposition in Eastern

Ohio, USA, 40 Envtl. Sci. & Tech. 5874 (2006). EPA relied on

this information in issuing the regulations challenged in this

case. 77 Fed. Reg. 9304, 9339 & n.92 (Feb. 16, 2012).

15

ed). The referenced study is limited in scope to the

“hazards to public health reasonably anticipated to

occur as a result of emissions” of HAPs by EGUs

after the imposition of the other requirements of the

CAA. Id.

Congress's instructions to EPA are thus clear:

the appropriate and necessary finding must be based

on a scientific understanding of the public health

impacts; costs are not a relevant factor. Cost is a

factor “both so indirectly related to public health and

so full of potential for canceling the conclusions

drawn from direct health effects” that when there

exists a mandate to regulate based on public health

impacts, there must be a “textual commitment” re-

quire cost to be a consideration. Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468-69 (2001). No

such commitment by Congress is present in para-

graph 7412(n)(1). EPA’s decision to regulate EGU

HAP emissions was to be based on scierze, not cost.

The statutory structure further supports the un-

derstanding that Congress intended for EPA to make

a scientific judgment regarding public health under

paragraph 7412(n)(1). In regulating EGUs under

section 7412, EPA must undertake a _ two-step

process. First, it must make the “appropriate and

necessary” finding, which requires EPA to decide

whether to regulate EGU HAP emissions. Second,

after listing EGUs under subsection 112(c), EPA

must decide how stringently to regulate such emis-

sions by establishing MACT under subsection

7412(d). Such a two-step process—first deciding

whether to regulate and then establishing emissions

standards—is typical under the CAA. See, e.g., 42

16

U.S.C. § 7408(a)(1)(A) (listing of criteria pollutants

before setting NAAQS); id. § 7411(b)(1){A) (listing of

stationary source categories before setting new

source performance standards for each category); id.

§ 7521(a)(1) (endangerment finding before setting

emission standards for mobile sources).

As even petitioners recognize, under the Clean

Air Act, Congress has repeatedly mandated that cost

considerations only play a role in the second, stan-

dard-setting stage. See Brief for Petitioners UARG

27 (citing Coal. for Responsible Regulation v. EPA,

684 F.3d 102, 118 (D.C. Cir. 2012) (per curiam), aff'd

in part & rev'd in part, Util. Air Regulatory Grp. v.

EPA, 134 8. Ct. 2427 (2014)); see also Coal. for Re-

sponsible Regulation, 684 F.3d at 118 (“To be sure,

the subsection following § 202(a)(1), § 202(a)(2), re-

quires that EPA address limited questions about the

cost of compliance with new emission standards and

the availability of technology for meeting those stan-

dards, but these judgments are not part of the §

202(a)(1) endangerment inquiry.”) (citation omitted).

The reason for this structure is to ensure that the

first stage, the decision to regulate, is made on a

purely scientific basis. See Coal. for Responsible

Regulation, 684 F.3d at 117-18 (“These questions

require a ‘scientific tudgment’ about the potential

risks greenhouse gas emissions post to public health

or welfare—not policy discussions.”). Thus the statu-

tory structure chosen by Congress is congruous with

its intention that EPA confirm the public health

impacts of EGU HAP emissions before proceeding to

regulate them under section 7412.

17

Ill. The legislative history and contemporane-

ous understanding of the 1990 Amendments

to the CAA confirm that EPA was suppgsed

to base the finding on scientific study, not

costs.

A. The drafting process of paragraph

7412(n)(1) reflects Congress’s focus on

public health impacts rather than on

cost as the basis for applying section

7412 to EGUs.

Although Congress was well aware at the time of

the 1990 CAA Amendments that EGUs were a signif-

icant source of several HAPs—including mercury

and other metal toxics—there was disagreement in

Congress regarding when and how EGU HAP emis-

sions should be regulated. In particular, the Senate

and the House passed different versions of the provi-

sion that became paragraph 7412(n)(1). The Senate

bill required three studies—an EPA study on parti-

culate emissions, an EPA study on mercury emis-

sions, and a NIEHS study to “determine the thre-

shold level of mercury’—and mandated that emis-

sions standards for mercury and particulates be

promulgated no later than five years after the pas-

sage of the amendments. S. 1630, 101st Cong. § 301

(as passed by Senate, Apr. 3, 1990), reprinted in 3

1990 CAA Leg. Hist. at 4119, 4432-34. The House

bill provided for a study of all HAP emissions from

utilities and made regulation contingent on an “ap-

propriate and necessary” finding. S. 1630, 101st

Cong. § 301 (as passed by House, May 23, 1990),

18

reprinted in 2 1990 CAA Leg. Hist. at 1809, 2148-

49.5

The final version that emerged from the confe-

rence committee reflected a compromise between the

Senate and House versions. It generally adopted the

House’s approach of delaying listing until EPA had a

chance to study the issue. See 42 U.S.C. §

7412(n)(1)(A). It also included the Senate’s mercury

study and the NIEHS study. See id. 7412(n)(1)(B)/-

(C). However, whereas the Senate bill would have

required EPA to consider the results of all three

studies before setting the standards for EGU HAP

emissions, the enacted version mandates only that

EPA consider the results of the public health study

in making the appropriate and necessary finding.

See id. § 7412(n)(1)(A); see also S. 1360, 101st Cong. §

301 (as passed by Senate, Apr. 3, 1990), reprinted in

4 1990 CAA Leg. Hist. at 4433-34 (“The studies

required by subparagraphs (A), (B), and (C) shall be

placed in the relevant docket for any rulemaking

that would establish emissions standards under

subsection (d) for particulates or mercury from elec-

tric utility steam generating units and shall be con-

sidered by the Administrator, along with other public

5 Even the revision process in the House reflected the urgency

of regulating HAP emissions. The version of section 7412 in

H.R. 3030, as introduced, prohibited EPA from regulating

power plants unless it found regulation appropriate and neces-

sary, H.R. 3030, 10ist Cong. § 301 (July 27, 1989), reprinted in

2 1990 CAA Leg. Hist. at 3737, 3945-46; the version that

passed the House, in contrast, “required EPA to regulate power

plants if it so found.” S. 1630, 101st Cong. § 301 (as passed by

House, May 23, 1990), reprinted in 2 1990 CAA Leg. Hist. at

1809, 2148—49 (emphasis added).

19

comments, before any such standard is promulgat-

ed.”).

The enacted compromise further demonstrates

that while Congress ultimately chose the House bill’s

“delay and study” approach, concerns about the cost

of regulating EGU HAP emissions were not the mo-

tivation behind this decision.

B. Contemporaneous statements in the

media and from the electric utility in-

dustry reflect the understanding that

EPA’s “appropriate and necessary” find-

ing was to be based on the results of

scientific studies, not cost.

When, in 1991, EPA proposed its initial list of

source categories under section 7412, it requested

public comment on whether it should include EGUs

in the list. 56 Fed. Reg. 28,548, 28,550—-51 (June 21,

1991). Representatives of the electric utility indus-

try, including petitioner Utility Air Regulatory

Group (“UARG”), strenuously objected to the imme-

diate listing of EGUs. Such listing would be inap-

propriate, they argued, because EPA must base its

decision to list EGUs on the results of the public

health study required under paragraph 7412(n)(1).

For example, UARG commented that “Congress has

decided that regulation of [EGUs] should turn on the

results of EPA’s study.” Comments of the Utility Air

Regulatory Group, Docket No. A-90-49, at 3 (July 22,

1991) (emphasis added); see also Comments of Edi-.

son Electric Institute, Docket No. A-90-49, at 1 (July

19, 1991) (“Following issuance of the study, EPA will

determine if any further controls on [EGUs] will be

needed to protect public health.”). These comments

20

also recognized that Congress delayed regulation of

EGUs under section 7412 to allow time to see wheth-

er Title [IV addressed the problem. Thus -UARG

argued that “[nJon-utility boilers, unlike [EGUs], are

not subject to the kind of [CAA] regulatory programs

that could make § 112 regulation unnecessary.”

Comments of the Utility Air Regulatory Group, su-

pra, at 5.

As one article in an important electric industry

journal put it:

One important factor is that the EPA was di-

rected by the CAA’s Title III to undertake a

study of hazards to public health posed by

189 pollutants. EPA must report the results

of this study by November 1993. Those re-

sults will dictate whether power plant emis-

sions should come under regulation.

R.C. Rittenhouse, Action Builds on the Road to CAA

Compliance, Power Engineering, June 1, 1992, at 43

(emphasis added). The director of clean air, fossil

fuels, and natural resources at the Edison Electric

Institute (a major electric utility industry trade

group) explained that “the industry agreed with

Congress during debate on the issue to abide by the

decision of EPA following completion of the agency’s

study of utility toxic emissions.” Draft Report Calls

for Regulation of Utility Air Toxics, Electric Utility

Week, Aug. 26, 1991, at 6 (quoting the director as

saying, “We have to have more data, and after the

studies are conducted, we will live with what is de-

cided. We are aware that there is a risk that we

will be regulated.”); see also Winston Chow et al.,

Managing Air Toxics under New Clean Air Act

21

Amendments: Pollution Control for Electric Power

Plants, Power Engineering, Jan. 1, 1991, at 35 (“Un-

der the new amendments, the EPA will conduct a

three-year study of the public health hazards from

exposure to toxic emissions from utilities and report

to Congress. EPA can regulate such emissions only

if the regulations are appropriate based on this

study.”).

As these comments and articles reflect, it was

well understood in the aftermath of the 1990 CAA

Amendments that EPA’s “appropriate and neces-

sary’ determination was to be based on resolving

uncertainties about the impacts of Title [TV on EGU

HAP emissions and about the impacts of those emis-

sions on public health. EPA’s decision to apply sec-

tion 7412 to EGUs based on these considerations,

and not on cost, was reasonable.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

MARCH 4, 2015

22

Respectfully submitted,

WENDY B. JACOBS

Counsel of Record

SHAUN A. GOHO

EMMETT ENVIRONMENTAL

LAW & POLICY CLINIC

HARVARD LAW SCHOOL

6 Everett St., Suite 4119

Cambridge, MA 02138

617-496-2058

wjacobs@law.harvard.edu

Counsel for Amicus Curiae

Union of Concerned Scientists