Appendix — Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-47)

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IN THE

Supreme Court of the United States

UTILITY AIR REGULATORY GROUP,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

——— — - EE —

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

APPENDIX VOLUME I OF II

F. WILLIAM BROWNELL

(Counsel of Record)

HENRY V. NICKEL

LEE B. ZEUGIN

LAUREN E. FREEMAN

ELIZABETH L. HORNER

HUNTON & WILLIAMS LLP

2200 PENNSYLVANIA AVE., NW

WASHINGTON, D.C. 20037

(202) 955-1500

bbrownell@hunton.com

duly 14, 2014 Counsel for Petitioner

OT ———

Wasdetres PrwtnwGCo inc - (202) 789-0096 -— WASHINGTION.D C 20002

TABLE OF CONTENTS

VOLUME I:

APPENDIX A: Order of the U.S. Court of

Appeals for the District of Columbia Circuit

Denying All Petitions for Review, Except the

Petition for Review in No. 12-1174, and Dis-

missing That Petition

APPENDIX B: Opinion of the U.S. Court of

Appeals for the District of Columbia Circuit

APPENDIX C: U.S. Environmental Protec-

tion Agency, National Emission Standards

for Hazardous Air Pollutants From Coal- and

Oil-Fired Electric Utility Steam Generating

Units and Standards of Performance for Fos-

sil-Fuel-Fired Electric Utility, Industrial-

Commercial-Institutional, and Small Indus-

trial-Commercial-Institutional Steam Gen-

erating Units; Final Rule, 77 Fed. Reg. 9304

(Feb. 16, 2012) (excerpts)

VOLUME IT:

APPENDIX D: Federal Statutes

Clean Air Act § 112, 42 U.S.C. § 7412 (ex-

eT Re CCCP Pewee eee eee ee ee

Page

APPENDIX E: EPA’s Responses to Public

Comments on EPA’s National Emission

Standards for Hazardous Air Pollutants from

Coal- and Oil-Fired Electric Utility Steam

Generating Units, Vol. 1 (Dec. 2011), Docket

No. EPA-HQ-OAR-2009-0234-20126 (ex-

I ciaces crease succinic hcincatainglnie sedis elinabntaadgsemniaels

APPENDIX F: Utility Air Regulatory Group,

Comments on National Emission Standards

for Hazardous Air Pollutants From Coal- and

Oil-Fired Electric Utility Steam Generating

Units: Proposed Rule (Aug. 4, 2011), Docket

No. EPA-HQ-OAR-2009-0234-17775 (ex-

SIE sdiedutctbdaienmeeniiiadiemubathiembenncunaiiddiespiaissumwckiniicin

APPENDIX G: U.S. Environmental Protec-

tion Agency, National Emission Standards

for Hazardous Air Pollutants From Coal- and

Oil-Fired Electric Utility Steam Generating

Units and Standards of Performance for Fos-

sil-Fuel-Fired Electric Utility, Industrial-

Commercial-Institutional, and Small Indus-

trial-Commercial-Institutional Steam Gen-

erating Units;.Proposed Rule, 76 Fed. Reg.

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

APPENDIX H: U.S. Environmental Protec-

tion Agency, Revision of December 2000

Regulatory Finding on the Emissions of

Hazardous Air Pollutants From Electric Util-

ity Steam Generating Units and the Removal

of Coa]- and Oil-Fired Electric Utility Steam

Generating Units From the Section 112(c)

List; Final Rule, 70 Fed. Reg. 15,994 (Mar.

29, 2005) (excerpt)

APPENDIX I: U.S. Environmental Protec-

tion Agency, Regulatory Finding on the

Emissions of Hazardous Air Pollutants From

Electric Utility Steam Generating Units; No-

tice of Regulatory Finding, 65 Fed. Reg.

79,825 (Dec. 20, 2000)

APPENDIX J: U.S. Environmental Protec-

tion Agency, EPA-453/R-98-004a, Study of

Hazardous Air Pollutant Emissions from

Electric Utility Steam Generating Units --

Final Report to Congress, Vol. 1 (Feb. 1998),

Docket No. EPA-HQ-OAR-2009-0234-3052

(excerpts)

SETTER EEE EERE RRO eee oe

SCPE eRe RRR eR CPP e ee eee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-1100 September Term, 2013

FILED ON: APRIL 15, 2014

WHITE STALLION ENERGY CENTER, LLC,

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN ACADEMY OF PEDIATRICS, ET AL.,

INTERVENORS

Consolidated with 12-1101, 12-1102, 12-1147, 12-

1172, 12-1173, 12-1174, 12-1175, 12-1176, 12-1177,

12-1178, 12-1180, 12-1181, 12-1182, 12-1183, 12-

1184, 12-1185, 12-1186, 12-1187, 12-1188, 12-1189,

12-1190, 12-1191, 12-1192, 12-1193, 12-1194, 12-

1195, 12-1196

On Petitions for Review of Final Rule of the

United States Environmental Protection Agency

BEFORE: Garland, Chief Judge, and Rogers and

Kavanaugh, Circuit Judges

JUDGMENT

These causes came on to be heard on the petitions

for review of a Final Rule of the United States Envi-

ronmental! Protection Agency and were argued by

counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the petitions

for review be denied except that the petition for re-

view in No. 12-1174, Julander Energy Co. v. EPA, be

dismissed for lack of standing, in accordance with the

opinion of the court filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Jennifer M. Clark

Deputy Clerk

Date: April 15, 2014

Opinion Per Curiam.

Opinion concurring in part and dissenting in part

filed by Circuit Judge Kavanaugh.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2013

Decided April 15, 2014

No. 12-1100

WHITE STALLION ENERGY CENTER, LLC,

PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN ACADEMY OF PEDIATRICS, ET AL.,

INTERVENORS

Consolidated with 12-1101, 12-1102, 12-1147, 12-

1172, 12-1173, 12-1174, 12-1175, 12-1176, 12-

1177, 12-1178, 12-1180, 12-1181, 12-1182, 12-

1183, 12-1184, 12-1185, 12-1186, 12-1187, 12-

1188, 12-1189, 12-1190, 12-1191, 12-1192, 12-

1193, 12-1194, 12-1195, 12-1196

On Petitions for Review of Final Rule of the United

States Environmental Protection Agency

Lee B. Zeugin and Neil D. Gordon, Assistant At-

torney General, Office of the Attorney General for the

State of Michigan, argued the causes for State, In-

dustry, and Labor Petitioners. With them on the joint

briefs were F. William Brownell, Lauren E. Freeman,

Elizabeth L. Horner, Bill Schuette, Attorney General,

Office of the Attorney General for the State of Michi-

gan, John J. Bursch, Solicitor General, S. Peter Man-

ning, Assistant Attorney General, Luther Strange,

Attorney General, Office of the Attorney Genera! for

the State of Alabama, Michael C. Geraghty, Attorney

General, Office of the Attorney General for the State

of Alaska, Steven E. Mulder, Attorney, Peter S. Gla-

ser, George Y. Sugiyama, Michael H. Higgins, David

B. Rifkin, Jr., Lee A. Casey, Mark W. DeLaquil, An-

drew M. Grossman, David Flannery, Gale Lea Ru-

brecht, Kathy G. Beckett, Edward L. Kropp, Leslie

Sue Ritts, Thomas Horne, Attorney General, Office of

the Attorney General for the State of Arizona, Joseph

P. Mikitish and James T. Skardon, Assistant Attor-

neys General, Dustin McDaniel, Attorney General,

Office of the Attorney General for the State of Arkan-

sas, Kendra Akin Jones, Assistant Attorney General,

Charles L. Moulton, Senior Assistant Attorney Gen-

eral, Pamela Jo Bondi, Attorney General, Office of

the Attorney General for the State of Florida, Jona-

than A. Glogau, Attorney, Lawrence G. Wasden, At-

torney General, Office of the Attorney General for the

State of Idaho, Grant Crandall, Arthur Traynor, III,

Eugene M. Trisko, Gregory F. Zoeller, Attorney Gen-

eral, Office of the Attorney General for the State of

Indiana, Valerie Tachtiris, Deputy Attorney General,

Dennis Lane, Derek Schmidt, Attorney General, Of-

fice of the Attorney General for the State of Kansas,

Jeffrey A. Chanay, Deputy Attorney General, Henry

V. Nickel, George P. Sibley HI, Eric A. Groten, Jeremy

C. Marwell, John A. Riley, Christopher C. Thiele,

Harold E. Pizzetta III, Assistant Attorney General,

Office of the Attorney General for the State of Missis-

sippi, Chris Koster, Attorney General, Office of the

Attorney General for the State of Missouri, James R.

Layton and John J. McManus, Attorneys, Paul D.

Clement, Nathan A. Sales, Lisa Marie Jaeger, Jon

Bruning, Attorney General, Office of the Attorney

General for the State of Nebraska, Katherine J.

Spohn, Special Counsel to the Attorney General,

Wayne Stenehjem, Attorney General, Office of the At-

torney General for the State of North Dakota, Mar-

garet I. Olson, Steven C. Kohl, Eugene E. Smary, Sa-

rah C. Lindsey, E. Scott Pruitt, Attorney General, Of-

fice of the Attorney General for the State of Oklaho-

ma, P. Clayton Eubanks, Assistant Attorney General,

Michael DeWine, Attorney General, Office of the At-

torney General for the State of Ohio, Dale T. Vitale

and Gregg H. Bachmann, Assistant Attorneys Gen-

eral, Robert M. Wolff, Special Counsel, Alan Wilson,

Attorney General, Office of the Attorney General for

the State of South Carolina, James Emory Smith, -Jr.,

Assistant Deputy Attorney General, Mark L.

Shurtleff, Attorney General, Office of the Attorney

General for the State of Utah, Greg Abbott, Attorney

General, Office of the Attorney General for the State

of Texas, Jon Niermann, Chief, Mark Walters and

Mary E. Smith, Assistant Attorneys General, Ken-

neth T. Cuccinelli, IJ, Attorney General, Office of the

Attorney General for the Commonwealth of Virginia,

Patrick Morrisey, Attorney General, Office of the At-

torney General for the State of West Virginia, Silas

B. Taylor, Senior Deputy Attorney General, Jeffrey R.

Holmstead, Sandra Y. Snyder, Gregory A. Phillips,

Attorney General, Office of the Attorney General for

the State of Wyoming, Jay A. Jerde, Deputy Attorney

General, Jack Conway, Attorney General, Office of

the Attorney General for the State of Kentucky, Bart

E. Cassidy, and Katherine L. Vaccaro.

Bill Cobb argued the cause for Industry Petition-

ers’ Specific Issues. With him on the briefs were Mi-

chael Nasi, Leslie Sue Ritts, Jeffrey R. Holmstead,

Sandra Y. Snyder, Paul D. Clement, Nathan A. Sales,

Steven C. Kohl, Eugene E. Smary, Sarah C. Lindsay,

Bart E. Cassidy, Katherine L. Vaccaro, John C.

Hayes, Jr., Dennis Lane, John A. Riley, Christopher

C. Thiele, C. Grady Moore, III, P. Stephen Gidiere,

III, and Thomas Lee Casey, III. |

Sanjay Narayan and Eric Schaeffer argued the

causes for Environmental Petitioners. With them on

the briefs were Whitney Farrell, James S. Pew, Neil

Gormley, Ann Brewster Weeks, and Darin Schroeder.

David Bookbinder argued the cause and filed the

briefs for petitioner Julander Energy Company.

Michael B. Wigmore, Sandra P. Franco, Robin S.

Conrad, Rachel Brand, and Sheldon Gilbert were on

the brief for amicus curiae The Chamber of Com-

merce of the United States of America in support of

Industry Petitioners.

Eric G. Hostetler, Matthew R. Oakes, and Amanda

S. Berman, Attorneys, U.S. Department of Justice,

argued the causes for respondent. With them on the

brief was Wendy L. Blake, Attorney, U.S. Environ-

mental Protection Agency.

Melissa Hoffer, Assistant Attorney General, Office

of the Attorney General for the Commonwealth of

Massachusetts, argued the cause for State and Local

Government Intervenors in support of Respondent.

With her on the brief were Martha Coakley, Attorney

General, Office of the Attorney General for the State

of Massachusetts, Tracy Triplett and Carol A. Jancu,

Assistant Attorneys General, Kamala D. Harris, At-

torney General, Office of the Attorney General for the

State of California, Janill L. Richards, Supervising

Deputy Attorney General, Susan L. Durbin, Deputy

Attorney General, Joseph R. Biden, III, Attorney

General, Office of the Attorney General for the State

of Delaware, Valerie M. Satterfield, Deputy Attorney

General, Thomas L. Miller, Attorney General, Office

of the Attorney General for the State of Iowa, David

R. Sheridan, Assistant Attorney General, George

Jepsen, Attorney General, Office of the Attorney

General for the State of Connecticut, Kimberly P.

Massicotte and Matthew I. Levine, Assistant Attor-

neys General, Lisa Madigan, Attorney General, Of-

fice of the Attorney General for the State of Illinois,

Matthew J. Dunn and Gerald T. Karr, Assistant At-

torneys General, Douglas F. Gansler, Attorney Gen-

eral, Office of the Attorney General for the State of

Maryland, Roberta R. James, Assistant Attorney

General, Michael A. Delaney, Attorney General, Of-

fice of the Attorney General for the State of New

Hampshire, K. Allen Brooks, Senior Assistant Attor-

ney General, Janet T. Mills, Attorney General, Office

of the Attorney General for the State of Maine, Ger-

ald D. Reid, Assistant Attorney General, Lori Swan-

son, Attorney General, Office of the Attorney General

for the State of Minnesota, Max Kieley, Assistant At-

torney General, Eric T. Schneiderman, Attorney

General, Office of the Attorney General for the State

of New York, Michael J. Myers and Kevin P. Do-

novan, Assistant Attorneys General, Ellen F. Rosen-

baum, Attorney General, Office of the Attorney Gen-

eral for the State of Oregon, Paul A. Garrahan, As-

sistant Attorney-in-Charge, Gary K. King, Attorney

General, Office of the Attorney General for the State

of New Mexico, Stephen R. Farris, Assistant Attorney

General, Roy Cooper, Attorney General, Office of the

Attorney General for the State of North Carolina,

James C. Gulick, Senior Deputy Attorney General, /J/.

Allen Jernigan, Marc Bernstein, and Amy L. Bircher,

Special Deputy Attorneys General, William H. Sor-

rell, Attorney General, Office of the Attorney General

for the State of Vermont, Thea J. Schwartz, Assistant

Attorney General, George A. Nilson, William R. Phe-

lan, Jr., Peter F. Kilmartin, Attorney General, Office

of the Attorney General for the State of Rhode Island,

George S. Schultz, Special Assistant Attorney Gen-

eral, Irvin B. Nathan, Attorney General, Office of the

Attorney General for the District of Columbia, Amy

E. McDonnell, Deputy General Counsel, Christopher

King, Benna Ruth Solomon, and Jeremy Toth.

Sean H. Donahue argued the cause for Public

Health, Environmental, and Environmental Justice

Group Respondent Intervenors. With him on the

brief were Pamela A. Campos, Tomas Carbonell, Ann

Brewster Weeks, Darin T. Schroeder, James S. Pew,

Neil E. Gormley, Sanjay Narayan, John D. Walke,

and John Suttles. Vickie L. Patton entered an ap-

pearance.

Brendan K. Collins argued the cause for Industry

Respondent Intervenors. With him on the brief were

Robert B. McKinstry Jr., Lorene L. Boudreau, and

Erik S. Jaffe.

Peter S. Glaser, George Y. Sugiyama, F. William

Brownell, Lauren E. Freeman, Lee B. Zeugin, Eliza-

beth L. Horner, David B. Rivkin Jr., Lee A. Casey,

Mark W. DeLaquil, Andrew M. Grossman, Jeremy C.

Marwell, Eric A. Groton, Jeffrey R. Holmstead, and

Sandra Y. Snyder were on the brief for Industry In-

tervenors in response to Environmental] Petitioners.

Henry V. Nickel entered an appearance.

Peter S. Glaser, George Y. Sugiyama, Hahnah

Williams, F. William Brownell, Lauren E. Freeman,

Lee B. Zeugin, Elizabeth L. Horner, Jeremy C. Mar-

well, Eric A. Groton, Jeffrey R. Holmstead, Sandra Y.

Snyder, Bill Cobb, Michael Nasi, David B. Rivkin Jr.,

Lee A. Casey, Mark W. DeLaquil, and Andrew M.

Grossman were on the brief for Intervenor Respond-

ents in Opposition to Brief of Petitioner Julander En-

ergy Company.

Wendy B. Jacobs, Adam Babich, and Michael A.

Livermore were on the brief for amici curiae Institute

for Policy Integrity, et al. in support of respondent.

Before: GARLAND, Chief Judge, and ROGERS and

KAVANAUGH, Circuit Judges.

PER CURIAM: In 2012, the Environmental Protec-

tion Agency promulgated emission standards for a

number of listed hazardous air pollutants emitted by

coal- and oil-fired electric utility steam generating

units. See National Emission Standards for Hazard-

ous Air Pollutants From Coal- and Oil-Fired Electric

Utility Steam Generating Units and Standards of

Performance for Fossil-Fuel-Fired Electric Utility, In-

dustrial-Commercial- Institutional, and Small Indus-

' Parts I, Il, and IV are written by Judge Rogers. Part

lil is written by Judge Kavanaugh, as are his dissenting

opinion in Part II.B.2 and his concurring opinion in Part

IV.

10a

trial-Commercial-Institutional Steam Generating

Units, Final Rule, 77 Fed. Reg. 9304 (Feb. 16, 2012).

In this complex case, we address the challenges to the

Final Rule by State, Industry, and Labor petitioners,

by Industry petitioners to specific aspects of the Final

Rule, by Environmental petitioners, and by Julander

Energy Company. For the following reasons, we deny

the petitions challenging the Final Rule.

In 1970, Congress enacted § 112 of the Clean Air

Act, Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685

(1970), to reduce hazardous air pollutants (“HAPs’).

See Sierra Club v. EPA, 353 F.3d 976, 979 (D.C. Cir.

2004); H. R. REP. No. 101-490, at 150 (1990). The

statute defined HAPs as “air pollutant{s] . . . whicl. in

the judgment of the Administrator [of the Environ-

mental Protection Agency (“EPA”)] cause, or contrib-

ute to, air pollution which may reasonably be antici-

pated to result in an increase in mortality or an in-

crease in serious irreversible, or incapacitating re-

versible, illness.” § 112(a)(1), 84 Stat. at 1685. In its

original form, § 112 required EPA to publish a list

containing “each hazardous air pollutant for which

{it} intends to establish an emission standard.”

§ 112(b)(1)(A), 84 Stat. at 1685. EPA then was to

promulgate, within 360 days, emission standards

“provid[ing] an ample margin of safety to protect the

public health” for each listed HAP, unless EPA found

that a particular listed substance was in fact not

hazardous. § 112(b)(1)(B), 84 Stat. at 1685. Over the

next eighteen years, EPA listed only eight HAPs, es-

tablished standards for only seven, and as to these

seven addressed only a limited selection of possible

pollution sources. See New Jersey v. EPA, 517 F.3d

lla

574, 578 (D.C. Cir. 2008); S. REP. No. 101-228, at 131

(1989).

To remedy the slow pace of EPA’s regulation of

HAPs, Congress amended the Clean Air Act in 1990,

see Pub. L. No. 101-549, 104 Stat. 2531 (1990)

(“CAA”), by eliminating much of EPA’s discretion in

the process. See New Jersey, 517 F.3d at 578. In the

amended § 112, Congress itself listed 189 HAPs that

were to be regulated, see CAA § 112(b), 42 U.S.C.

§ 7412(b), and directed EPA to publish a list of “cate-

gories and subcategories” of “major sources” and cer-

tain “area sources” that emit these pollutants, CAA

§ 112(c), 42 U.S.C. § 7412(c). Once listed, a source

category may only be delisted (with one exception not

relevant here) if EPA determines that “no source” in

that category emits HAPs in quantities exceeding

specified thresholds. CAA § 112(c)(9)(B), 42 U.S.C.

§ 7412(c)(9)(B). For each listed “category or subcate-

gory of major sources and area sources” of HAPs,

EPA must promulgate emission standards. CAA

§ 112(d)(1), 42 U.S.C. § 7412(d)(1). Section 112(d)

provides, as relevant, that emission standards

shall require the maximum degree of reduction

in emissions of the hazardous air pollutants

subject to this section (including a prohibition

on such emissions, where achievable) that the

Administrator, taking into consideration the

cost of achieving such emission reduction, and

any non-air quality health and environmental

impacts and energy requirements, determines

is achievable[.|

CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2) (emphasis

added). For existing sources, these “maximum

achievable control technology” (““MACT”) standards

12a

may not be less stringent —regardless of cost or other

considerations — “than [] the average emission limi-

tation achieved by the best performing [] sources” in

the relevant category or subcategory. CAA

§ 112(d)(3)(A)4B), 42 U.S.C. § 7412(d)(3)(A)H4B); see

Nat? Lime Ass’n v. EPA, 233 F.3d 625, 629 (D.C. Cir.

2000). EPA refers to minimum-stringency MACT

standards as “floors.” Standards more stringent than

the floors, determined pursuant to § 112(d)(2), are

called “beyond-the-floor” limits.

For electric utility steam generating units

(“EGUs”), however, Congress directed that prior to

any listing EPA conduct a study of “the hazards to

public health reasonably anticipated to occur as a re-

sult of [EGU HAP emissions] after imposition of the

requirements of this Chapter [i.e., Chapter 85 Air

Pollution Prevention and _ Controlj.”. CAA

§ 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A) (emphasis

added). The results of this “Utility Study” were to be

reported to Congress within three yea:s. Jd. Further,

Congress directed that:

The Administrator shall regulate [EGUs] un-

der 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. (emphasis added). Congress also directed EPA to

conduct two other studies on mercury emissions: the

“Mercury Study” on “the rate and mass of such emis-

sions, the health and environmental effects of such

emissions, technologies which are available to control

such emissions, and the costs of such technologies,” to

be reported to Congress in four years, and the Na-

tional Institute of Environmental Health Sciences

l3a

“study to determine the threshold level of mercury

exposure below which adverse human health effects

are not expected to occur,” to be reported to Congress

in three years. See CAA § 112(n)(1)(A}{C), 42 U.S.C.

§ 7412(n)(1)(A)X{C).

In December 2000, on the basis of the Utility

Study and other data subsequently gathered, EPA

issued a notice of regulatory finding “that regulation

of HAP emissions from coaland oil-fired electric utili-

ty steam generating units under section 112 of the

CAA is appropriate and necessary.” Regulatory Find-

ing on the Emissions of Hazardous Air Pollutants

From Electric Utility Steam Generating Units, 65

Fed. Reg. 79,825, 79,826 (Dec. 20, 2000) (“2000 Find-

ing”). EPA found that EGUs “are the largest source of

mercury emissions in the U.S.” and that “[m]ercury is

highly toxic, persistent, and bioaccumulates in food

chains.” 65 Fed. Reg. at 79,827. Specifically,

“[mjercury emitted from [EGUs]...is transported

through the atmosphere and eventually deposits onto

land or water bodies” where it then changes into “a

highly toxic” substance called methylmercury. Jd.

Methylmercury “biomagnifies in the aquatic food

chain,” id., meaning that it becomes concentrated in

the bodies of predatory fish which absorb the

methylmercury their food sources contained. When

humans eat these contaminated fish, they also are

exposed; the methylmercury from the fish is absorbed

into the bloodstream and “distributed to all tissues

including the brain.” Jd. at 79,829. The risks are

greatest for women of childbearing age, EPA ex-

plained, because methylmercury “readily pass-

es...to the fetus and fetal brain,” id., and “the de-

veloping fetus is most sensitive to the effects of

methylmercury,” id. at 79,827. Children born to

l4a

women who were exposed to methylmercury during

pregnancy have exhibited neurological abnormalities

and developmental delays. Jd. at 79,829.

EPA concluded that “the available information in-

dicate[d] that mercury emissions from [EGUs] .. . are

a threat to public health and the environment,” not-

withstanding “uncertainties regarding the extent of

the risks due to electric utility mercury emissions.”

Id. (emphasis added). EPA also identified several

other metal and acid gas emissions from EGUs that

were “of potential concern,” namely arsenic, chromi-

um, nickel, cadmium, dioxins, hydrogen chloride, and

hydrogen fluoride. Jd. EPA therefore determined

that it was “appropriate” to regulate coal- and oil-

fired EGUs under § 112 because of the health and

environmental hazards posed by mercury emissions

from EGUs, and the availability of a number of con-

trol options to effectively reduce such emissions. Id.

at 79,830. EPA further determined that it was “nec-

essary to regulate EGUs under § 112 because im-

plementation of other provisions of the CAA would

“not adequately address” the public health and envi-

ronmental hazards found. Jd. Therefore, EPA added

“coal- and oil-fired electric utility steam generating

units to the list of source categories under section

112(c) of the CAA.” Td.

In 2005, EPA reversed its 2000 Finding and re-

moved coal- and oil-fired EGUs from the list of source

categories under § 112(c). See Revision of December

2000 Regulatory Finding on the Emissions of Haz-

ardous Air Pollutants From Electric Utility Steam

Generating Units and the Removal of Coal- and Oil-

Fired Electric Utility Steam Generating Units From

the Section 112(c) List, 70 Fed. Reg. 15,994, 15,994

15a

(Mar. 29, 2005) (“2005 Delisting Decision”). This

change was based on EPA’s revised interpretation of

§ 112(n)(1)(A) and, to some extent, on a revised as-

sessment of the results of the Utility Study. EPA con-

cluded that it lacked authority under § 112(n)(1)(A)

to regulate on the basis of non-health hazards (e.g.,

environmental harms), and should “focus solely” on

the health effects directly attributable to EGU emis-

sions, rather than on EGUs’ contribution to overall

pollutant levels. Id. at 15,998. Further, EPA decided

it could consider other relevant, “situation-specific

factors, including cost” that may affect whether regu-

lation under § 112 is “appropriate.” Id. at 16,000—01.

Critically, EPA determined that it must make its

“appropriate and necessary” finding by reference to

health hazards that will remain “after imposition of

the requirements of” the CAA. Id. at 15,998 (empha-

sis added) (quoting CAA § 112(n)(1)(A), 42 U.S.C.

§ 7412(n)(1)(A)). EPA interpreted these other “re-

quirements” to include “not only those requirements

already imposed and in effect, but also those re-

quirements that EPA reasonably anticipates will be

implemented” and which “could either directly or in-

directly result in reductions of utility HAP emis-

sions.” Id. at 15,999. Concluding that regulation un-

der other provisions of the CAA would adequately

address EGU emissions of mercury and other HAPs,

EPA determined that regulation under § 112 was nei-

ther “appropriate” nor “necessary.” Id. at 16,002—08.

In responding to comments, EPA stated that if it

were to regulate EGU emissions, then it would regu-

late only those substances for which it had made a

specific “appropriate and necessary” determination.

States and other groups petitioned for review and

this court vacated the 2005 Listing Decision, New

16a

Jersey, 517 F.3d at 583, holding that EPA’s attempt

to reverse its December 2000 listing decision was un-

lawful because Congress had “unambiguously lim-

ited] EPA’s discretion to remove sources, including

EGUs, from the section 112(c)(1) list once they have

been added to it.”

In 2012, after notice and comment, EPA “con-

firm[ed]” its 2000 Finding that regulation of EGU

emissions under § 112 is “appropriate and necessary.”

Final Rule, 77 Fed. Reg. 9304, 9310-11. In the pro-

posed rule, EPA stated that “the December 2000

Finding was valid at the time it was made based on

the information available to the Agency at that time.”

Proposed Rule, 76 Fed. Reg. 24,976, 24,986, 24,994-—

97 (May 3, 2011) (“NPRM”). Although of the view

that no further evidence was required to affirm the

2000 Finding, EPA had conducted additional quanti-

tative and qualitative analyses “confirm[ing] that it

remains appropriate and necessary today to regulate

EGUs under CAA section 112.” Jd. at 24,986; see id.

at 24,999-25,020. With respect to the term “appro-

priate,” EPA explained that it was “chang[ing] the

position taken in 2005 that the appropriate finding

could not be based on environmental effects alone”;

“revisiting the 2005 interpretation that required the

Agency to consider HAP emissions from EGUs with-

out considering the cumulative impacts of all sources

of HAP emissions”; “revising the 2005 interpretation

that required the Agency to evaluate the hazards to

public health after imposition of the requirements of

the CAA”; and “rejecting the 2005 interpretation that

authorizes the Agency to consider other factors (e.z.,

cost), even if the agency determines that HAP emit-

ted by EGUs pose a hazard to public health (or the

environment).” Jd. at 24,989. With respect to the

17a

term “necessary,” EPA rejected as “unreasonable” its

interpretation in 2005 that regulation under § 112

was “necessary” only if no other provision in the CAA

— whether implemented or only anticipated — could

“directly or indirectly” reduce HAP emissions to ac-

ceptable levels. Id. at 24,992.

EPA explained that it interpreted § 112(n)(1)(A)

to require the Agency to find it appropriate to

regulate EGUs under CAA section 112 if the

Agency determines that the emissions of one or

more HAP emitted from EGUs pose an identi-

fied or potential hazard to public health or the

environment at the time the finding is made. If

the Agency finds that it is appropriate to regu-

late, it must find it necessary to regulate EGUs

under section 112 if the identified or potential

hazards to public health or the environment

will not be adequately addressed by the impo-

sition of the requirements of the CAA. Moreo-

ver, it may be necessary to regulate utilities

under section 112 for a number of other rea-

sons, including, for example, that section 112

standards will assure permanent reductions in

EGU HAP emissions, which cannot be assured

based on other requirements of the CAA.

Id. at 24,987-88. EPA also affirmed that coal- and

oil-fired EGUs were properly listed as a source cate-

gory under § 112(c). See id. at 24,986. EPA adhered

to these interpretations in the Final Rule, 77 Fed.

Reg. at 9311. Accordingly, on February 16, 2012, EPA

promulgated emission standards for a number of

listed HAPs emitted by coal- and oil-fired EGUs. See

id. at 9487-93.

18a

Several petitions for review challenge the Final

Rule. We first address, in Part II, the challenges of

the State, Industry, and Labor petitioners. In Part

III, we address Industry petitioners’ specific issues.

In Part IV.A, we address the challenges by the Envi-

ronmental petitioners, and in Part IV.B, Julander

Energy Company’s standing. In addressing the sub-

stantive challenges to the Final Rule, this court must

determine under the CAA whether the Final Rule

was promulgated in a manner that was arbitrary or

capricious, an abuse of discretion, or otherwise not in

accordance with law. See CAA § 307(d)(9){A), 42

U.S.C. § 7607(d)(9)(A). “The ‘arbitrary and capricious’

standard deems the agency action presumptively val-

id provided the action meets a minimum rationality

standard.” Sierra Club, 353 F.3d at 978~-79 (quoting

Natural Res. Def. Council v. EPA, 194 F.3d 130, 136

(D.C. Cir. 1999)). That is, “[iJf EPA acted within its

delegated statutory authority, considered all of the

relevant factors, and demonstrated a reasonable con-

nection between the facts on the record and its deci-

sion, we will uphold its determination.” Ethyl Corp. v.

EPA, 51 F.3d 1053, 1064 (D.C. Cir. 1995). The court

will show particular deference “where the agency's

decision rests on an evaluation of complex scientific

data within the agency's technical expertise.” Troy

Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997);

see also Marsh v. Or. Natural Res. Council, 490 U.S.

360, 377 (1989).

II.

State, Industry, and Labor petitioners challenge

EPA’s interpretation and application of the “appro-

priate and necessary” requirement in § 112(n)(1)(A).

19a

As a threshold matter, petitioners contend that

the 2000 Finding was unlawful because EPA did not

allow notice and comment on the finding, did not

quantify the relevant mercury emissions and associ-

ated health risks, and did not describe “alternative

contro] strategies” as required under § 112(n)(1)(A).

Because the December 2000 notice was “fundamen-

tally flawed,” they contend it “could have no legal

consequences” and “could not provide the basis for a

§ 112(c) listing decision.” State, Industry & Labor

Pet’rs’ Br. (hereinafter “SIL Br.”) 27—28. Without a

proper listing under § 112(c), they contend, EPA has

no authority to regulate EGUs under § 112(d).

The court need not decide whether EPA’s Decem-

ber 2000 “appropriate and necessary” finding was

procedurally or substantively valid because EPA re-

considered and “confirm[ed]” that determination in

the Final Rule. See NPRM, 76 Fed. Reg. at 24,977;

Final Rule, 77 Fed. Reg. at 9310-11, 9320. For the

reasons we will discuss, we hold that EPA’s finding in

the Final Rule was substantively and procedurally

valid, and consequently any purported defects in the

2000 Finding have been cured, rendering petitioners’

challenge to December 2000 “appropriate and neces-

sary” finding moot. Cf. Fund for Animals, Inc. v. Ho-

gan, 428 F.3d 1059, 1063—64 (D.C. Cir. 2005).

The crux of petitioners’ challenge to the Final

Rule focuses on EPA’s interpretation of the phrase

“appropriate and necessary” in § 112(n)(1){A), 42

U.S.C. § 7412(n)(1)(A). The context of this phrase is

as follows. In a special subsection on EGUs, Congress

20a

first directed: “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 pollutants listed

under subsection (f) after imposition of the require-

ments of this Act.” CAA § 112(n)(1)(A), 42 U.S.C.

§ 7412(n)(1)(A) (emphasis added). Congress then di-

rected: “The Administrator shall regulate electric

utility steam generating units under this section, if

the Administrator finds such regulation is appropri-

ate and necessary after considering the results of the

study required by this subparagraph.” Jd. (emphasis

added). Apart from the instruction to “consider[] the

results of the [Utility Study]” on public health haz-

ards from EGU emissions, the statute offers no ex-

press guidance regarding what factors EPA is re-

quired or permitted to consider in deciding whether

regulation under § 112 is “appropriate and neces-

sary.” Neither does it define the words “appropriate”

or “necessary.” See NPRM, 76 Fed. Reg. at 24,986;

2005 Listing Decision, 70 Fed. Reg. at 15,997. Peti-

tioners object to how EPA chose to fill these gaps.

In matters of statutory interpretation, the court

applies the familiar two part test under Chevron

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

Inc., 467 U.S. 837, 842-43 (1984). First, the court

employs traditional tools of statutory construction to

determine de novo “whether Congress has directly

spoken to the precise question at issue.” Jd. at 842,

843 n.9. If the court “ascertains that Congress had an

intention on the precise question at issue,” id. at 843

n.9, “that is the end of the matter” and the court

“must give effect to the unambiguously expressed in-

tent of Congress,” id. at 842—43. If, however, “the

statute is silent or ambiguous with respect to the

2la

specific issue,” the court will uphold the agency’s in-

terpretation so long as it constitutes “a permissible

construction of the statute.” Jd. at 843. “In such case,

a court may not substitute its own construction of a

statutory provision for a reasonable interpretation

made by the administrator of an agency.” Jd. at 844.

To the extent petitioners’ challenge concerns

EPA’s change in interpretation from that in 2005, our

approach is the same because “[{a]gency inconsistency

is not a basis for declining to analyze the agency’s in-

terpretation under the Chevron framework.” Nati?

Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 981 (2005). That is, “if the agency ade-

quately explains the reasons for a reversal of policy,

change is not invalidating, since the whole point of

Chevron is to leave the discretion provided by the

ambiguities of a statute with the implementing agen-

cy.” Id. (internal quotation marks omitted). And

while “[u]nexplained inconsistency” may be “a reason

for holding an interpretation to be an arbitrary and

capricious change from agency practice,” id., our re-

view of a change in agency policy is no stricter than

our review of an initial agency action, see FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 514-16 (2009). —

Thus, although an agency may not “depart from a

prior policy sub silentio or simply disregard rules that

are still on the books,” the agency “need not demon-

strate to a court’s satisfaction that the reasons for the

new policy are better than the reasons for the old

one.” Jd. at 515. Rather, “it suffices that the new pol-

icy is permissible under the statute, that there are

good reasons for it, and that the agency believes it to

be better.” Id.

22a

1. Reliance on delisting criteria. In the Final

Rule, EPA concluded that it is “appropriate and nec-

essary” to regulate HAP emissions on the basis, inter

alia, that EGU emissions of certain HAPs pose a can-

cer risk higher than the standard set forth in the

§ 112(c)(9) delisting criteria (i.e., greater than one in

a million for the most exposed individual). See Final

Rule, 77 Fed. Reg. at 9311; NPRM, 76 Fed. Reg. at

24,998. Petitioners contend that by so doing EPA

wrongly conflated the delisting criteria with the “ap-

propriate and necessary” determination. “By applying

the delisting provisions of § 112(c)(9) in making the

initial, pre-listing determination whether it is ‘appro-

priate and necessary’ to regulate EGUs, EPA has un-

lawfully imposed requirements on itself the Congress

chose not to impose at the listing stage.” SIL Br. 35.

They maintain that EPA's approach “would treat

EGUs the same as all other major source categories—

as a category that must be listed unless the delisting

criteria are met.” Id.

EPA explained that it was relying upon the delist-

ing criteria to interpret an ambiguous term in

§ 112(n)(1)(A), namely, “hazards to public health,” see

Final Rule, 77 Fed. Reg. at 9333-34; NPRM, 76 Fed.

Reg. at 24,992-93, because the phrase “hazards to

public health” is nowhere defined in the CAA. EPA

looked to the delisting criteria, which specify the risk

thresholds below which a source category need not be

regulated, as evidence of congressional judgment as

to what degree of risk constitutes a health hazard.

See id. EPA explained:

Although Congress provided no definition of

hazard to public health, section 112(c)(9)(B) is

instructi\e. In that section, Congress set forth

23a

a test for removing source categories from the

section 112(c) source category list. That test is

relevant because it reflects Congress’ view as

to the level of health effects associated with

HAP emissions that Congress thought war-

ranted continued regulation under section 112.

NPRM, 76 Fed. Reg. at 24,993 (emphasis added); see

Final Rule, 77 Fed. Reg. at 9333-34. EPA concluded

that it had discretion also to consider various other

factors in evaluating hazards to public health, includ-

ing

the nature and severity of the health effects

associated with exposure to HAP emissions;

the degree of confidence in our knowledge of

those health effects; the size and characteris-

tics of the populations affected by exposures to

HAP emissions; [and] the magnitude and

breadth of the exposures and risks posed by

HAP emissions from a particular source cate-

gory, including how those exposures contribute

to risk in populations with additional expo-

sures to HAP from other sources{[.]

NPRM, 76 Fed. Reg. at 24,992; see Final Rule, 77

Fed. Reg. at 9334.

EPA reasonably relied on the § 112(c)(9) delisting

criteria to inform its interpretation of the undefined

statutory term “hazard to public health.” Congress

did not specify what types or levels of public health

risks should be deemed a “hazard” for purposes of

§ 112(n)(1)(A). By leaving this gap in the statute,

Congress delegated to EPA the authority to give rea-

sonable meaning to the term. Cf. Chevron, 467 U.S.

at 843-44. EPA’s approach does not, as petitioners

24a

contend, “treat EGUs the same as all other major

source categories.” SIL Br. 35. Other major source

categories must be listed unless the delisting criteria

are satisfied; EPA’s approach treats EGUs quite dif-

ferently. For EGUs, EPA reasonably determined that

it may look at a broad range of factors — only one of

which concerned the § 112(c)(9) benchmark levels —

in assessing the health hazards posed by EGU HAPs.

Nowhere does EPA state or imply that the delisting

criteria provide the sole basis for determining wheth-

er it is “appropriate and necessary” to regulate EGUs

under § 112. Because EPA’s approach is based on a

permissible construction of § 112(n)(1)(A), it is enti-

tled to deference and must be upheld.

2. Costs of regulation. Noting that in 2005 EPA

construed § 112(n)(1)(A) to allow consideration of

costs in determining whether regulation of EGU HAP

emissions is “appropriate,” petitioners contend that

EPA’s new interpretation to “preclude consideration

of costs,” SIL Br. 42, “unreasonably constrains the

language of § 112(n)(1)(A),” SIL Br. 39. They point to

the dictionary definition of “appropriate” and to the

differences between regulation of EGUs_ under

§ 112(m)(1)(A) and regulating other sources under

§ 112(c), and to this court’s precedent that “only

where there is ‘clear congressional intent to preclude

consideration of cost’ [do] we find agencies barred

from considering costs.” SIL Br. 40 (quoting Michigan

v. EPA, 213 F.3d 663, 678 (D.C. Cir. 2000), cert. de-

nied, 532 U.S. 904 (2001)). They contend that EPA’s

new interpretation “is also unlawful because it elimi-

nates the discretion that Congress intended EPA to

exercise after completing the Utility Study.” SIL Br.

41. As they see it, if the statutory term “appropriate”

imposes any limit whatsoever, it must at least limit

25a

regulation to “risks [that] are worth the cost of elimi-

nation.” SIL Reply Br. 14 (quoting Michigan v. EPA,

213 F.3d at 667 (addressing the term “significant”)).

In the Final Rule, EPA stated that “it is reasona-

ble to make the listing decision, including the appro-

priate determination, without considering costs.” Fi-

nal Rule, 77 Fed. Reg. at 9327. EPA reasoned that

§ 112(m)(1)(A) would have included an “express statu-

tory requirement that the Agency consider costs in

making the appropriate determination” if Congress

wanted to require EPA to do so. Jd. EPA also noted

that “[t]o the extent [its] interpretation differs from

the one set forth in 2005,” it had “fully explained the

basis for such changes.” Jd. at 9323 (citing NPRM, 76

Fed. Reg. at 24,986—93). (Even in 2005, EPA noted

only that “[nJothing precludes EPA from considering

costs in assessing whether regulation of [EGUs] un-

der section 112 is appropriate in light of all the facts

and circumstances presented.” 2005 Delisting Deci-

sion, 70 Fed. Reg. at 16,001 n.19.) In responding to

comments reacting to its position that “the better

reading of the term ‘appropriate’ is that it does not

allow for the consideration of costs in assessing

whether hazards to public health or the environment

are reasonably anticipated to occur based on EGU

emissions,» NPRM, 76 Fed. Reg. at 24,989, EPA ob-

served that the dictionary definition of “appropriate”

does not require consideration of costs and that com-

menters had failed to identify an express statutory

requirement to that effect. EPA also stated that it

was reasonable to decline to consider costs in the ab-

sence of an express statutory requirement to do so

because Congress, in enacting § 112, was principally

concerned with mitigating hazards to public health

and the environment from HAP emissions. See Final

26a

Rule, 77 Fed. Reg. at 9327. Inasmuch as Congress

had treated the regulation of HAP emissions differ-

ently in the 1990 Amendments because EPA was not

acting quickly enough, EPA concluded it was reason-

able to make a listing decision without considering

costs. See id.

On its face, § 112(n)(1)(A) neither requires EPA to

consider costs nor prohibits EPA from doing so. In-

deed, the word “costs” appears nowhere in subpara-

graph A. In the absence of any express statutory in-

struction regarding costs, petitioners rely on the dic-

tionary definition of “appropriate” — meaning “espe-

cially suitable or compatible” or “suitable or proper in

the circumstances” — to argue that EPA was re-

quired “to take into account costs to the nation’s elec-

tricity generators when deciding whether to regulate

EGUs.” SIL Br. 39 (citing MERRIAM-WEBSTER’S

ONLINE DICTIONARY; NEW OXFORD AMERICAN

DICTIONARY (2d ed. 2005)). Yet these definitions,

which do not mention costs, merely underscore that

the term “appropriate” is “open-ended,” “ambiguous,”

and “inherently context-dependent.” Sossamon v.

Texas, 131 S. Ct. 1651, 1659 (2011); cf. Natl Ass’n of

Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C.

Cir. 2007).

Even if the word “appropriate” might require cost

consideration in some contexts, such a reading of

“appropriate” is unwarranted here, where Congress

directed EPA’s attention to the conclusions of the

study regarding public health hazards from EGU

emissions. Throughout § 112, Congress mentioned

costs explicitly where it intended EPA to consider

them. Cf. CAA §112(d)(2), 112(d)(8)(A)(i),

112(f)(1)(B), 112(f)(2)(A), 112(n)(1)(B), 112(s)(2), 42

27a

U.S.C. § 7412(d)(2), 7412(d)(8)(A)(i), 7412(f(1)(B),

7412(f)(2)(A), 7412(n)(1)(B), 7412(s)(2). Indeed, in the

immediately following subparagraph of § 112(n),

Congress expressly required costs to be considered.

CAA § 112(n)(1)(B), 42 U.S.C. § 7412(n)(1)(B). The

contrast with subparagraph A could not be more

stark. “Where Congress includes particular language

in one section of a statute but omits it in another sec-

tion of the same Act, it is generally presumed that

Congress acts intentionally ...in the disparate in-

clusion or exclusion.” Russello v. United States, 464

U.S. 16, 23 (1983) (alterations omitted); cf. Catawba

Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009).

Petitioners offer no compelling reason why Congress,

by using only the broad term “appropriate,” would

have intended the same result — that costs be con-

sidered— in § 112(n)(1)(A). The legislative history the

dissent claims “establishes” the point, Dissent at 13,

consists of a Floor statement by a single Congress-

man that at best is ambiguous.? For these reasons,

we conclude that the statute does not evince unam-

biguous congressional intent on the specific issue of

whether EPA was required to consider costs in mak-

2 See 1 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT

AMENDMENTS OF 1990, at 1416-17 (1993) (statement by

Rep. Oxley) (indicating that the provision authorizing

regulation of EGUs would “avoid[] the imposition of exces-

sive and unnecessary costs” by ensuring that EPA can

regulate “only if the studies described in section 112(n)

clearly establish that emissions .. . from such units cause

a significant risk of serious adverse effects on public

health”).

28a

ing its “appropriate and necessary” determination

under § 112(n)(1)(A).

Turning to EPA’s approach, its position that

“nothing about the definition of [‘appropriate’] com-

pels a consideration of costs,” Final Rule, 77 Fed.

Reg. at 9327, is clearly permissible. In Whitman v.

American Trucking Ass’ns, 531 U.S. 457 (2001), Jus-

tice Scalia, writing for a unanimous Court, noted that

the Supreme Court has “refused to find implicit in

ambiguous sections of the CAA an authorization to

consider costs that has elsewhere, and so often, been

expressly granted.” Id. at 467; see also Natural Res.

Def. Council v. U.S. EPA, 824 F.2d 1146, 1163-65

(D.C. Cir. 1987) (en banc). EPA’s interpretation is

consistent with that instruction. Just as in Whitman,

EPA declines to find in an ambiguous section what in

so many other CAA sections Congress has mentioned

expressly. And even assuming Whitman might be dis-

tinguished on grounds it concerned a different provi-

sion of the CAA, the question remains only whether

EPA’s interpretation is permissible. Petitioners can-

not point to a single case in which this court has re-

quired EPA to consider costs where the CAA does not

expressly so instruct. In Michigan v. EPA, this court

merely held that “the agency was free to consid-

er...costs” under CAA § 110(a)(2)(D), 42 U.S.C.

§ 7410(a)(2)(D), as EPA had urged in that case. 213

F.3d at 679 (emphasis added).

EPA’s interpretation is also consistent with the

purpose of the 1990 Amendments, which were aimed

at remedying “the slow pace of EPA’s regulation of

HAPs” following the initial passage of the CAA. New

Jersey, 517 F.3d at 578. To ensure that HAP emis-

sions would be reduced to at least minimallyaccepta-

29a

ble levels, Congress, among other things, listed 189

HAP substances for regulation and “restrict[ed} the

opportunities for EPA and others to intervene in the

regulation of HAP sources.” Jd. The overall purpose

of the 1990 Amendments was to spur EPA to action.

Although Congress gave EGUs a three-year pass

when it instructed EPA to conduct a further study

before regulating EGUs, see CAA § 112(n)(1)(A), 42

U.S.C. § 7412(n)(1)(A), there is no indication that

Congress did not intend EPA to regulate EGUs if and

when their public health hazards were confirmed by

the study, as they were here.

Petitioners, and our dissenting colleague, suggest

that EPA’s interpretation is unreasonable because

the notion that Congress would have authurized EPA

to regulate without any consideration of regulatory

costs is implausible. But this argument rests on a

false premise. Here, as in Whitman, interpreting one

isolated provision not to require cost consideration

does not indicate that Congress was unconcerned

with costs altogether, because Congress accounted for

costs elsewhere in the statute. Section 112(d)(2) ex-

pressly requires EPA to “tak[e] into consideration the

cost of achieving . . . emission reduction[s}” when set-

ting the level of regulation under §112. CAA

§ 112(d)(2), 42 U.S.C. § 7412(d)(2). It is true that this

cost consideration requirement does not apply with

respect to MACT floors. Yet even for MACT floors,

costs are reflected to some extent because the floors

correspond (by definition) to standards that better-

performing EGUs have already achieved, presumably

in a cost efficient manner. See CAA § 112(d)(3)(A), 42

U.S.C. § 7412(d)(3)(A). Moreover, Industry respond-

ent intervenors point out that petitioners’ proposed

approach would lead to an improbable “all-or-

30a

nothing” scheme in which EPA could “choose not to

regulate EGUs at all under Section 112 based on

cost, even though EPA could not consider cost to jus-

tify a less stringent emission standard than the

MACT floor.” Indus. Resp’t Intvn’rs’ Br. 8.

Contrary to petitioners’ claims, the word “appro-

priate” is not rendered meaningless unless interpret-

ed to include cost consideration. Petitioners contend

that § 112(n)(1)(A) mandates a two-step inquiry: EPA

must “first identify ‘a health hazard’ from HAPs

emitted from EGUs, and then determine whether

regulation of that health hazard is ‘appropriate and

necessary.” SIL Br. 41 (emphasis added). If the ex-

istence of a health hazard automatically means regu-

lation is appropriate, they contend, then EPA has un-

lawfully abdicated the exercise of discretion Congress

delegated to it. This argument, too, is unpersuasive.

First, the rulemaking record reflects that EPA did

not focus exclusively on health hazards in considering

whether regulation would be “appropriate”; EPA also

considered “the availability of controls to address

HAP emissions from EGUs.” NPRM, 76 Fed. Reg. at

24,989; see id. at 24,997; see also Final Rule, 77 Fed.

Reg. at 9311. The factual premise of petitioners’ ar-

gument is therefore incorrect. Second, even if EPA

had focused exclusively on health hazards, the word

“appropriate” would still have meaning in

§ 112(n)(1)(A) because the provision does not assume,

as petitioners seem to suggest, that EPA would in

fact “identify ‘a health hazard” from EGUs. SIL Br.

41. Rather, the statute directs EPA to “perform a

study of the hazards to public health reasonably an-

ticipated to occur” and then to “regulate [EGUs] . . . if

the Administrator finds such regulation is appropri-

ate and necessary after considering the results of the

3la

study.” CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A)

(emphasis added). At the time Congress enacted the

1990 Amendments, it was possible that the Utility

Study would fail to identify significant health haz-

ards from EGU HAP emissions. (Indeed, petitioners

argue that it did fail to do so. See SIL Br. 13, 48-54.)

Therefore, EPA had to “consider[] the results of the

study” in order to determine whether regulation

would be “appropriate” based on its assessment of the

existence and severity of such health hazards. The

term “appropriate” plainly plays a role: it requires

EPA to apply its judgment in evaluating the results

of the study.

Basically, petitioners and our dissenting colleague

seek to impose a requirement that Congress did not.

What they ignore is that Congress sought, as a

threshold matter, to have EPA confirm the nature of

public health hazards from EGU emissions. That is

the clear focus of § 112(n)(1)(A). After that, Congress

left it to the expertise and judgment of EPA whether

or not to regulate. For EPA to focus its “appropriate

and necessary” determination on factors relating to

public health hazards, and not industry's objections

that emission controls are costly, properly puts the

horse before the cart, and not the other way around

as petitioners and our dissenting colleague urge.

Given Congress’s efforts in the 1990 Amendments to

promote regulation of hazardous peliutants, EPA’s

interpretation of § 112(n)(1)(A) appears consistent

with Congress's intent. Recall that only EGUs’ haz-

ardous emissions were relieved of regulation until

completion of a study, and once the study confirmed

the serious public health effects of hazardous pollu-

tants from EGUs, Congress gave no signal that the

matter should end if remediation would be costly.

32a

Our dissenting colleague has written a powerful-

sounding dissent. It sounds powerful, however, only

because it elides the distinction between EPA’s initial

decision regarding whether to list EGUs as sources of

hazardous air pollutants, and its subsequent decision

regarding whether to issue stringent beyond-the-floor

standards for such sources. The dissent refers to both

together as the MACT “program.” Dissent at 3. But

the “program” in fact proceeds in two stages, as the

dissent acknowledges. It is only as to the first, listing

stage that EPA has determined it should not consider

costs. That stage leads only to the setting of the stat-

utory MACT floor which, as the dissent notes, is a

“minimum stringency level.” Jd. The second stage

leads to beyond-the-floor standards, which are more

restrictive. When setting those, EPA does consider

costs.

The dissent contends that “[m]Jeeting that [MACT]

floor will be prohibitively expensive, particularly for

many coal-fired utilities,” forcing them “out of busi-

ness.” Dissent at 10-11. But in the Final Rule EPA

rejected this contention, concluding that “the esti-

mated number of early retirements,” of EGUs “that

may result from this rule is . . . less than 2 percent of

all U.S. coalfired capacity” in 2015. Final Rule, 77

Fed. Reg. at 9416; see also id. at 9408 (rejecting the

claim that the Final Rule “will result in substantial

power plant retirements”). Petitioners have not chal-

lenged that conclusion. Industry respondent interve-

nors further observe that continuing to exempt EGUs

from HAP regulation penalizes those plants that have

made investments in clean air technology, and that

“(t]he Rule merely requires owners of uncontrolled

plants to install and operate control technology al-

ready operating at their competitors’ plants, both lev-

33a

eling the playing field and improving health and the

environment.” Indus. Resp’t Intv’nrs’ Br. 7. The Final

Rule, which, as the dissent notes, EPA has calculated

will cost $9.6 billion a year, includes the cost of both

stages. EPA also has concluded under Executive Or-

der 13563 that the annualized benefits are $37 to $90

billion. See Final Rule, 77 Fed. Reg. at 9306. (The

dissent questions this conclusion, notwithstanding its

promise that agency cost-benefit analyses should be

reviewed deferentially.) That’s “billion with a b,” in

the dissent’s catchy phrase. Dissent at 1. In short,

“the benefits of this rule outweigh its costs by be-

tween 3 to 1 or 9 to 1.” Final Rule, 77 Fed. Reg. at

9306.

As the agency noted, “[u]nder section 112(n)(1)(A),

EPA is evaluating whether to regulate HAP emis-

sions from EGUs at all.” NPRM, 76 Fed. Reg. at

24,989 (emphasis added). And there was nothing un-

reasonable about its conclusion that costs should not

be considered in determining “whether HAP emis-

sions trom EGUs pose a hazard to public health or

the environment.” Jd. at 24,988; see id. at 24,990.

That is especially so when “Congress did not author-

ize the consideration of costs in listing any [other]

source categories for regulation under section

112... [and] did not permit the consideration of costs

in evaluating whether a source category could be del-

isted pursuant to the provisions of section 112(c)(9).”

Id. at 24,989. And while the dissent insists on “the

centrality of cost consideration to proper regulatory

decisionmaking,” Dissent at 6, Whitman makes clear

the Supreme Court believes that Congress does not

necessarily agree. Nor is Whitman the only case in

34a

which courts have found that Congress legislated in a

way the dissent would find irrational.*

Academic generalities, see Dissent at 6-8, do not

demonstrate that EPA could not reasonably proceed

as it did in interpreting congressional intent — espe-

cially not generalities by academics who are criticiz-

ing the Supreme Court for failing to read congres-

sional statutes as they do. The same is true of ut-

3 See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,

511—12 (1981) (holding that OSHA is not required to con-

duct a costbenefit analysis in promulgating a standard

under section 6(b)(5) of the Occupational Safety and

Health Act because “Congress uses specific language when

intending that an agency engage in costbenefit analysis’);

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (“The

plain intent of Congress in enacting [the Endangered Spe-

cies Act] was to halt and reverse the trend towards species

extinction, whatever the cost.”); Union Elec. Co. v. EPA,

427 U.S. 246, 257—58 (1976) (holding that EPA may not

consider claims of economic infeasibility in evaluating a

state requirement that primary ambient air quality

standards be met by a certain deadline); Lead Indus. Ass'n

v. EPA, 647 F.2d 1130, 1150 (D.C. Cir. 1980) (“We are un-

able to discern here any congressional intent to require, or

even permit, [EPA] to consider economic... factors in

promulgating air quality standards [under the CAA].”).

4 See Cass R. Sunstein, Interpreting Statutes in the Reg-

ulatory State, 103 HARV. L. REV. 405, 492—93 (1989) (criti-

cizing American Textile Manufacturers Institute, 452 U.S.

490, for “contributing to the irrationality of the Occupa-

tional Safety and Health Act” by “refusing to read the

statute” as the author would); Cass R. Sunstein, Cost-

Benefit Default Principles, 99 MICH. L. REV. 1651, 1671

(2001) (same); Richard J. Pierce, Jr., The Appropriate Role

35a

terances by single Justices — especially a separate

statement by one Justice concurring in Whitman and

a question by another during oral argument about a

different statutory section. See Dissent at 6-7. Nor do

the different approaches of the Bush and Obama

Administrations on the role of costs in implementing

the CAA do more than demonstrate that administra-

tions may differ and can change positions without le-

gal jeopardy, so long as an adequate explanation is

provided as was done here. See Chevron, 467 U.S. at

865-66. The question before the court is not “Should

EPA have considered costs in making its threshold

determination under § 112(n)(1)(A)?” but rather “Was

EPA required to do so at that point in its regulatory

evaluation” EPA has explained why it concluded

costs were not part of the “appropriate and neces-

sary” determination, and given Congress’s choice to

leave the factors entering into that determination to

EPA, petitioners, and our dissenting colleague, fail to

demonstrate that EPA’s considered judgment about

the factors to be considered was unlawful as an im-

permissible and unreasonable interpretation of

§ 112(n)(1)(A). Congress left to EPA “the accommoda-

tion of manifestly competing interests,” id. at 865,

and EPA did all that Congress required of it. Exactly

how and when EGU emissions are to be regulated is

a different question.

For these reasons, we hold that EPA reasonably

concluded it need not consider .osts in making its

of Costs in Environmental Regulation, 54 ADMIN L. REV.

1237, 1253 (2002) (criticizing the Whitman Court for rely-

ing on an “anti-cost canon”).

36a

“appropriate and necessary” determination under

§ 112(n)(1)(A).

3. Environmental harms. Petitioners also contend

that EPA was constrained to consider only public

health hazards, not environmental or other harms, in

making its “appropriate and necessary” determina-

tion. In their view, § 112(n)(1)(A) unambiguously

forecloses the consideration of non-health effects be-

cause the statute requires EPA to make i‘* “appro-

priate and necessary” determination after consider-

ing the results of the Utility Study, which is focused

exclusively on identifying “hazards to public health”

caused by EGU HAP emissions. See SIL Br. 44. Peti-

tioners insist that in 2005 EPA followed the health-

only approach.

EPA reasoned that “nothing in the statute sug-

gests that the [EPA] should ignore adverse environ-

mental effects in determining whether to regulate

EGUs under section 112.”. NPRM, 76 Fed. Reg. at

24,988; see Final Rule, 77 Fed. Reg. at 9325. To the

contrary, EPA concluded that the purpose of the CAA

and the statute’s express instruction to assess envi-

ronmental! effects in the Mercury Study suggest “it is

reasonable to consider environmental] effects in eval-

uating the hazards posed by HAP emitted from

EGUs.” NPRM, 76 Fed. Reg. at 24,988; see Final

Rule, 77 Fed. Reg. at 9325. EPA explained in re-

sponse to comments that restricting it from consider-

ing environmental harms would “incorrectly con-

flate[]Jthe requirements for the Utility Study with the

requirement to regulate EGUs under CAA section

112 if EPA determines it is appropriate and neces-

sary to do so.” Final Rule, 77 Fed. Reg. at 9325.

37a

EPA did not err in considering environmental ef-

fects alongside health effects for purposes of the “ap-

propriate and necessary” determination. Although

petitioners’ interpretation of § 112(n)(1)(A) is plausi-

ble, the statute could also be read to treat considera-

tion of the Utility Study as a mere condition prece-

dent to the “appropriate and necessary” determina-

tion. EPA has consistently adopted this latter inter-

pretation, including in 2005. See 2005 Delisting Deci-

sion, 70 Fed. Reg. at 16,002. In the absence of any

limiting text, and considering the context (including

§ 112(n)(1)(B)) and purpose of the CAA, EPA reason-

ably concluded that it could consider environmental]

harms in making its “appropriate and necessary” de-

termination. The court need not decide whether en-

vironmental effects alone would allow EPA to regu-

late EGUs under § 112, because EPA did not base its

determination solely on environmental effects. As we

explain, infra Part I1.B.5, EPA’s decision to list EGUs

can be sustained on the basis of its findings regarding

health hazards posed by EGU HAP emissions.

4. Cumulative impacts of HAP emissions. On the

grounds that § 112(n)(1)(A) directs EPA to study haz-

ards reasonably anticipated to occur “as a result of”

EGU HAP emissions, petitioners contend that EPA

was required to base its “appropriate and necessary”

determination on public health hazards that occur

exclusively due to EGU HAPs. Thus, they contend,

EPA erred in considering EGU HAP emissions that

merely “contribute to” or exacerbate otherwise-

occurring health hazards. Petitioners point out that

EPA’s interpretation conflicts with its approach in

2005, when it read § 112(n)(1)(A) to authorize regula-

tion only upon a showing that EGU emissions alone

would cause harm.

38a

EPA explained that it could reasonably consider

the cumulative impacts of HAP emissions because

focusing on HAP emissions from EGUs alone

when making the appropriate finding ignores

the manner in which public health and the en-

vironment are affected by air pollution. An in-

dividual that suffers adverse health effects as

the result of the combined HAP emissions from

EGUs and other sources is harmed, irrespec-

tive of whether HAP emissions from EGUs

alone would cause the harm.

NPRM, 76 Fed. Reg. at 24,988; see Final Rule, 77

Fed. Reg. at 9325. EPA acknowledged it was depart-

ing from its 2005 approach, see NPRM, 76 Fed. Reg.

at 24,989, but justified the departure on grounds that

the 2005 approach had been “flawed” and “non-

scientific” to the extent that “EPA [had] incorrectly

determined that U.S. EGU emissions of [mercury] did

not constitute a hazard to public health,” id. at

25,019; cf. Final Rule, 77 Fed. Reg. at 9322-23.

EPA’s interpretation in the Final Rule is entitled

to deference. Section 112(n)(1)(A)’s reference to haz-

ards occurring “as a result of EGU HAP emissions

could connote hazards caused solely by EGU emis-

sions, but it could also connote hazards exacerbated

by EGU emissions. EPA’s commonsense approach to

this statutory ambiguity was well within the bounds

of its discretion, and it adequately explained its re-

versal from 2005. Petitioners’ contention that EPA

erred in considering the effects of HAPs emitted by

non-EGU sources is therefore unavailing. In any

event, EPA concluded in the Mercury Study that

“even if there were no other sources of [mercury] ex-

posure, exposures associated with deposition at-

39a

tributable to U.S. EGUs” would place the most sus-

ceptible populations above the methylmercury refer-

ence dose. NPRM, 76 Fed. Reg. at 25,010. Thus, EPA

did find, as petitioners contend it was required to do,

that EGU emissions alone would cause health haz-

ards.

5. Regulation under § 112(d). Petitioners contend

that even if it is “appropriate and necessary” to regu-

late EGU HAP emissions, such regulation should be

effected under § 112(n)(1)(A) to the degree appropri-

ate and necessary — not under § 112(d) through the

imposition of MACT standards. They maintain that

regulation of EGU HAPs that do not pose health haz-

ards, or regulation at a level higher than needed to

eliminate such hazards, is not regulation that is “ap-

propriate and necessary.” Petitioners contend that

§ 112(n)(1)(A)’s instruction to “regulate electric steam

generating units under this section” (emphasis added)

— rather than “under § 112(d)” — evinces congres-

sional intent that EGU HAPs should be regulated dif-

ferently than other sources. SIL Br. 36.

EPA expressly considered and dismissed petition-

ers’ proposed interpretation. EPA concluded that the

phrase “under this section” presumptively refers to

regulation under section 112, not to regulation under

subparagraph 112(n)(1)(A). See Final Rule, 77 Fed.

Reg. at 9330; NPRM, 76 Fed. Reg. at 24,993. Thus,

the plain statutory language suggests “EGUs should

be regulated in the same manner as other categories

for which the statute requires regulation.” Final

Rule, 77 Fed. Reg. at 9330. EPA explained:

CAA section 112 establishes a mechanism to

list and regulate stationary sources of HAP

emissions. Regulation under CAA section 112

40a

generally requires listing under CAA section

112(c)[] [and] regulation under CAA section

112(d)[.}...A determination that EGUs

should be listed once the prerequisite appro-

priate and necessary finding is made is wholly

consistent with the language of section

112(n)(1)(A), and listed sources must be regu-

lated under CAA section 112(d).

Id.; see also id. at 9326.

EPA acted properly in regulating EGUs under

§ 112(d). Section 112(n)({1)(A) directs the Administra-

tor to “regulate electric steam generating units under

this section, if the Administrator finds such regula-

tion iS appropriate and _ . necessary.” CAA

§ 112(m)(1)(A), 42 U.S.C. § 7412(n)(1)(A). EPA rea-

sonably interprets the phrase “under this section” to

refer to the entirety of section 112. See Desert Citi-

zens Against Pollution v. EPA, 66 F.3d 524, 527 (D.C.

Cir. 2012). Under section 112, the statutory frame-

work for regulating HAP sources appears in § 112(c),

which covers listing, and § 112(d), which covers

standard-setting. See CAA § 112(c), 112(d), 42 U.S.C.

§ 7412(c), 7412(d). This court has previously noted

that “where Congress wished to exempt EGUs from

specific requirements of section 112, it said so explic-

itly.” New Jersey, 517 F.3d at 583. EPA reasonably

concluded that the framework set forth in § 112(c)

and § 112(d) — rather than another, hypothetical

framework not elaborated in the statute — provided

the appropriate mechanism for regulating EGUs un-

der § 112 after the “appropriate and necessary” de-

termination was made. Therefore, EPA’s interpreta-

tion is entitled to deference and must be upheld.

4la

6. Regulation of all HAP emissions. In the Final

Rule, EPA claimed authority to promulgate stand-

ards for all listed HAPs emitted by EGUs, not merely

for those HAPs it has expressly determined to cause

health or environmental hazards. See, e.g., 77 Fed.

Reg. at 9325-26. Petitioners challenge this approach,

maintaining that § 112(n)(1)(A) limits regulation to

those individual HAPs that are “appropriate and nec-

essary” to regulate. Petitioners also object that EPA’s

interpretation contradicts its 2005 rulemaking when

it supported a substance-by-substance approach to

regulation.

EPA explained its disagreement with petitioners’

proposed approach. First, EPA reiterated its view

that once an “appropriate and necessary” determina-

tion is properly made, “EGUs should be regulated

under section 112 in the same manner as other cate-

gories for which the statute requires regulation.” Fi-

nal Rule, 77 Fed. Reg. at 9326. EPA then reasoned

that this court’s decision in National Lime, 233 F.3d

at 633, “requires [EPA] to regulate all HAP from ma-

jor sources of HAP emissions once a source category

is added to the list of categories under CAA section

112(c).” Id. (emphasis added). In other words, EPA

concluded that if EGUs are to be regulated in the

same manner as other source categories, then all

HAPs emitted by EGUs should be subject to regula-

tion. See id.

EPA did not err by concluding that it may regu-

late all HAP substances emitted by EGUs. In Na-

tional Lime, 233 F.3d at 633, this court considered

whether § 112(d)(1) permitted EPA “to set emission

levels only for those listed HAPs” that could be con-

trolled with existing technology. Concluding that

42a

EPA had a “clear statutory obligation to set emission

standards for each listed HAP,” the court held that

“the absence of technology-based pollution control de-

vices for HCl, mercury, and total hydrocarbons did

not excuse EPA from setting emission standards for

those pollutants.” Jd. at 634. Although petitioners at-

tempt to distinguish National Lime on grounds that

it concerned “major sources” rather than EGUs, they

have not provided any compelling reason why EGUs

should not be regulated the same way as other

sources once EPA has determined that regulation

under § 112 is “appropriate and necessary.” It also

bears emphasis that the plain text of § 112(n)(1)(A)

directs the Administrator to “regulate electric utility

steam generating units”’—not to regulate their emis-

sions, as petitioners suggest. This source-based ap-

proach to regulating EGU HAPs was affirmed in New

Jersey, 517 F.3d at 582, which held that EGUs could

not be delisted without demonstrating that EGUs, as

a category, satisfied the delisting criteria set forth in

§ 112(c)(9). The notion that EPA must “pick and

choose” among HAPs in order to regulate only those

substances it deems most harmful is at odds with the

court’s precedent.

To the extent EPA’s interpretation differs from its

2005 approach, it adequately explained its decision.

See Final Rule, 77 Fed. Reg. at 9325-26. Although

petitioners suggest otherwise, the 2005 Delisting De-

cision did not address whether EPA could regulate all

listed EGU HAPs following an “appropriate and nec-

essary’ determination. Here, EPA offered a reasoned

explanation for its approach; no more is required.

See Fox Television Stations, 556 U.S. at 515; Nat7

Cable & Telecomms. Ass’n, 545 U.S. at 981.

43a

In view of the above, EPA’s conclusion that it may

regulate all HAP emissions from EGUs must be up-

held.

ITI.

Petitioners assert that even if EPA has correctly

interpreted § 112(n)(1)(A), the emission standards

that EPA promulgated in the Final Rule are flawed

in several respects.

1. Appropriate and necessary determination. Peti-

tioners first contend that the agency’s determination

that it was “appropriate and necessary” to regulate

EGUs is arbitrary and capricious. Consistent with

their position on the proper interpretation of

§ 112(n)(1)(A), petitioners take a HAP-by-HAP ap-

proach to criticizing EPA’s Finding. But, as we ex-

plained above, EPA reasonably interprets the CAA as

allowing it to regulate all EGU HAP emissions pur-

suant to the usual MACT program once it makes the

threshold “appropriate and necessary” determination.

The question then is whether EPA reasonably found

it appropriate and necessary to regulate EGUs based

on all the record evidence before it.

EPA’s “appropriate and necessary” determination

in 2000, and its reaffirmation of that determination

in 2012, are amply supported by EPA's findings re-

garding the health effects of mercury exposure. Mer-

cury exposure has adverse effects on human health,

primarily through consumption of fish in which mer-

cury has bioaccumulated. See Final Rule, 77 Fed.

Reg. at 9310. And EGUs are the largest domestic

source of mercury emissions. /d. Petitioners do not

dispute these basic facts, but instead take issue with

44a

whether EPA has sufficiently quantified the contri-

bution of EGU mercury emissions to overall mercury

exposure. Our case law makes clear, however, that

EPA is not obligated to conclusively resolve every sci-

entific uncertainty before it issues regulation. See

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

102, 121 (D.C Cir. 2012) (“If a statute is precaution-

ary in nature and designed to protect the public

health, and the relevant evidence is difficult to come

by, uncertain, or conflicting because it is on the fron-

tiers of scientific knowledge, EPA need not provide

rigorous step-by-step proof of cause and effect to sup-

port an endangerment finding.”) (internal quotation

marks omitted). Instead, “[w]hen EPA evaluates sci-

entific evidence in its bailiwick, we ask only that it

take the scientific record into account in a rational

manner.” Jd. at 122 (internal quotation marks omit-

ted).

EPA did so here. As explained in the technical

support document (TSD) accompanying the Final

Rule, EPA determined that mercury emissions posed

a significant threat to public health based on an

analysis of women of child-bearing age who consumed

large amounts of freshwater fish. See Mercury TSD;

NPRM, 76 Fed. Reg. at 25,007; Final Rule, 77 Fed.

Reg. at 9311-17. The design of EPA’s TSD was nei-

ther arbitrary nor capricious; the study was reviewed

by EPA’s independent Science Advisory Board, which

stated that it “support[ed] the overall design of and

approach to the risk assessment” and found “that it

should provide an objective, reasonable, and credible

determination of the potential for a public health

hazard from mercury emitted from U.S. EGUs.” SAB

Letter to EPA Administrator Jackson at 2 (Sept. 29,

2011), EPA-SAB-11-017. In addition, EPA revised

45a

the final TSD to address SAB’s remaining concerns

regarding EPA’s data collection practices. See Final

Rule, 77 Fed. Reg. at 9313—16.5

Petitioners’ remaining objections center on the

change in EPA’s position between 2005 and 2012.

Although petitioners are correct that EPA weighed

certain pieces of evidence differently at different

times, the agency reasonably and adequately ex-

plained its basis for changing its position on whether

mercury emissions posed a sufficient risk to consti-

tute a public health hazard. See EPA Br. 40; NPRM,

76 Fed. Reg. at 25,019-20. EPA identified and ana-

lyzed what it viewed as technical flaws in the scien-

tific analysis supporting the 2005 Delisting Decision,

including a failure to evaluate the cumulative health

hazard from EGU emissions when combined with

other sources of mercury, NPRM, 76 Fed. Reg. at

25,019, and health hazards from methylmercury ex-

posure above the reference dose, id. at 25,020. Those

5 For the reasons explained in UARG v. EPA, Nos. 12-

1166, 12-1366, 12-1420, 2014 WL 928230 (D.C. Cir. Mar.

11, 2014), we do not address petitioners’ claims that SAB’s

final report on the Mercury TSD was submitted too late to

allow public comment and that EPA unreasonably refused

SAB’s request to review the final TSD. Petitioners did not

raise those issues in comments, and reconsideration is still

pending before the agency. Even if these arguments had

been properly presented to the agency, petitioners would

have forfeited them by raising them only in a cursory

footnote in their opening brief before this court. See

Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3 (D.C.

Cir. 1999) (en banc) (“We need not consider cursory argu-

ments made only in a footnote”).

46a

explanations are sufficient to meet the agency’s bur-

den. See Fox Television Stations, 556 U.S. at 514-16.

2. Major source classification. Petitioners contend

that in setting emission standards for EGUs, EPA

was required to distinguish between “major sources”

and “area sources.” As relevant here, major sources

are automatically subject to MACT controls, while

area sources may, in EPA’s discretion, be regulated

under alternative standards. See CAA § 112(a)(1),

112(a)(2), 112(d)(5), 42 US.C. § 7412(a)(1),

7412(a)(2), 7412(d)(5). Petitioners assert that EPA’s

failure to segregate the different types of sources fa-

tally compromises the Final Rule because the EGU

emission standards should have been based exclu-

sively on data from major source EGUs. But § 112(d)

does not require EPA to regulate EGUs as “major

sources’ and “area sources’; it merely says that, if

EPA lists major and area sources, it must then regu-

late them according to the separate provisions. See

CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1).

EPA’s decision not to draw such a distinction here

is a reasonable one. As EPA emphasizes, distinguish-

ing between major source and area source EGUs runs

counter to the separate statutory provisions govern-

ing EGUs. While other sources are classified as major

or area sources depending on the quantity of emis-

sions they emit, § 112 specifically defines EGUs in

terms of their electrical output. Compare CAA

§ 112(a)(8), with CAA § 112(a)(1}(2). Consistent with

ordinary rules of statutory construction, EPA reason-

ably relied on the more specific definition in

§ 112(a)(8) rather than the general definitions appli-

cable to all other sources. See RadLAX Gateway Ho-

tel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

47a

2070-72 (2012). Requiring EPA to classify EGUs as

major or area sources would also create redundancy

in the source-category listing criteria. Section

112(c)(3) of the CAA requires EPA to list area sources

for regulation if EPA determines that they “war-

rant[jregulation.” CAA §112(c)(3), 42 U.S.C.

§ 7412(c)(3). That finding is arguably unnecessary as

applied to EGUs_ given the requirement in

§ 112(n)(1)(A) that EPA make a finding that regula.

tion of all EGUs is “appropriate and necessary.”

EPA also did not err in declining to exercise its

discretionary authority to require less stringent

“generally available control technology,” or GACT,

standards, rather than MACT standards. dd.

§ 112(d)(5), 42 U.S.C. § 7412(d)(5). In the Final Rule,

EPA expressly and reasonably determined that set-

ting separate GACT standards for area source EGUs

was unnecessary. See Final Rule, 77 Fed. Reg. at

9404, 9438 (“[S]imilar HAP emissions and control

technologies are found on both major and area

sources” such that “there is no essential difference

between area source and major source EGUs with re-

spect to emissions of HAP.”).

For these reasons, EPA reasonably declined to in-

terpret § 112 as mandating classification of EGUs as

major sources and area sources.

3. Mercury MACT floor. Petitioners next chal-

lenge EPA’s standards for mercury emissions from

existing coal-fired EGUs. Petitioners maintain that

in calculating the MACT floor for those units, EPA

collected emissions data from only those EGUs that

were best-performing for mercury emissions. Conse-

quently, petitioners insist, the mercury MACT stand-

ard reflects the results achieved by the “best of the

48a

best” EGUs, and not the results of the best 12% of all

EGUs, as required by statute.

Petitioners’ assertions of a biased or irrational da-

ta collection process are not supported by a review of

the record. “EPA typically has wide latitude in de-

termining the extent of data-gathering necessary to

solve a problem.” Sierra Club v. EPA, 167 F.3d 658,

662 (D.C. Cir. 1999). Here, EPA determined that a

three-pronged approach was appropriate for develop-

ing the mercury MACT standard. First, EPA asked

all EGUs for all of their data from 2005-10; it re-

ceived data from 168 units. Information Collection

Request (“ICR”) Supporting Statement Part A at 9;

see generally MACT Floor Analysis Spreadsheets.

Second, EPA requested and received data from 50

randomly selected EGUs. ICR Supporting Statement

Part B at 2, 7-8. Finally, EPA requested and received

data from 170 of the best-performing units for non-

mercury emissions. Jd. EPA initially thought that

third group would also be the bestperforming for

mercury emissions, but it discovered that was not the

case after examining the data. See Responses to

Comments, Dec. 2011, v.1, at 573—76 (“RTC”).

Based on the results of its ICR, covering a total of

388 EGUs, EPA chose “the average emission limita-

tion achieved by the best performing 12 percent” of

all existing sources “for which [it] ha[d] emissions in-

formation,” as authorized by CAA § 112(d)(3)(A). See

NPRM, 76 Fed. Reg. at 25,022—23. Although, as EPA

acknowledges, it would be arbitrary and capricious

for EPA to set a MACT floor based on intentionally

skewed data, the facts indicate that EPA did not do

so here. Nor does the record suggest that EPA’s data

collection efforts resulted in unintentional bias. As

49a

previously noted, EPA collected data from a wide

range of EGUs because the agency concluded that it

could not identify units representing the best-

performing 12 percent of mercury emitters. That con-

clusion is borne out by the data in the record, which

showed that some of the best-performing units for

particulate matter control were among the worst per-

forming units for mercury control. See generally

MACT Floor Analysis Spreadsheets. Similarly, many

of the mercury best performers (32 of the best per-

forming 126 units) were not drawn from the pool of

units that EPA targeted as best performers for par-

ticulate matter. See RTC v. 1 at 575. In short, EPA’s

data-collection process was reasonable, even if it may

not have resulied in a perfect dataset.

4. Acid gas HAP. EPA did not conclusively de-

termine that emissions of acid gases such as hydro-

gen chloride from EGUs pose a health hazard. See

NPRM, 76 Fed. Reg. at 25,016 (“our case studies did

not identify significant chronic non-cancer risks from

acid gas emissions”). Petitioners say that given that

conclusion, EPA should have established a less strin-

gent, healthbased emission standard for acid gases

under § 112(d)(4). That provision states: “With re-

spect to pollutants for which a health threshold has

been established, the Administrator may consider

such threshold level, with an ample margin of safety,

when establishing emission standards under this

subsection.” CAA § 112(d)(4), 42 U.S.C. § 7412(d)(4).

Section 112(d)(4) makes clear, however, that EPA’s

authority to set alternate standards is discretionary.

See id. (“the Administrator may consider such

threshold level”) (emphasis added). Here, EPA con-

cluded that it lacked enough evidence to determine

whether an alternative standard would protect

50a

health “with an ample margin of safety.” See Final

Rule, 77 Fed. Reg. at 9405-06. Petitio ispute

EPA’s weighing of the evidence, but pte offer

no compelling basis for second-guessing E PA's analy-

sis.

Petitioners also suggest that regulation of EGU

acid gas emissions to address ecosystem acidification

conflicts with Congress’s decision in the 1990 CAA

amendments to address such acidification in Title [V

of the CAA. See SIL Reply Br. 5. But petitioners

failed to raise that argument before the agency, and

did not raise it in this court until their reply brief. We

therefore deem the argument forfeited. See Bd. of Re-

gents of Univ. of Washington v. EPA, 86 F.3d 1214,

1221 (D.C. Cir. 1996).

5. UARG delisting petition. The Utility Air Regu-

latory Group (UARG) filed a petition with EPA seek-

ing to remove coal-fired EGUs from the list of sources

regulated under § 112. EPA denied the petition. Pe-

titioners now argue that that denial was arbitrary

and capricious for the same reasons they assert that

the agency’s determination that it is “appropriate and

necessary” to regulate EGUs was incorrect. Assum-

ing, without deciding, that EPA can delist only a sub-

set of the EGU source category, we reject petitioners’

argument on this point. As EPA explained in the Fi-

nal Rule, UARG’s delisting petition did not demon-

strate that EPA could make either of the two predi-

cate findings required for delisting under

§ 112(c)(9)(B): (1) that no source in the category emits

HAP “in quantities which may cause a lifetime risk of

cancer greater than one in one million to the individ-

ual in the population who is most exposed” and (2)

that emissions from no source in the category “exceed

5la

a level which is adequate to protect public health

with an ample margin of safety.” CAA § 112(c)(9)(B),

42 U.S.C. § 7412(c)(9)(B); see also Final Rule, 77 Fed.

Reg. at 9364-65 (discussing technical flaws in

UARG’s risk analysis).

6. Chromium emissions data. Vinally, petitioners

question the validity of EPA’s case study regarding

risks from nonmercury EGU emissions. As relevant

here, that study found that at 6 of 16 tested facilities,

emissions of HAP posed a lifetime cancer risk of more

than one in a million to the most exposed individuals.

See Final Rule, 77 Fed. Reg. at 9319. Petitioners con-

tend that EPA's cancer-risk finding was the product

of contaminated emissions samples, and that EPA

has refused to correct the emissions data it used. In

making this argument, they rely on their own inde-

pendent “subsequent resampling” of the facilities that

EPA examined in conducting its inhalation risk as-

sessment. SIL Br. 52 n.58; UARG, Petition for Recon-

sideration of MATS Rule at 6-7 (Apr. 16, 2012),

EPAHQ- OAR-2009-0234-20179 (J.A. 2493-94).

EPA did not act arbitrarily or capriciously in rely-

ing on the chromium emissions data to which peti-

tioners object. As EPA explained in its responses to

comments, the data came from source representa-

tives themselves. RTC v.1 at 187. EPA reasonably be-

lieved that these representatives — given their “con-

cern[] about data accuracy” — would review “all data

before certifying their accuracy and submitting them

to the EPA.” Jd. EPA did not err in relying on this

certified data. We cannot consider the data from peti-

tioners’ independent resampling, which was conduct-

ed after the Final Rule issued and was not part of the

52a

administrative record. See CAA § 307(d)(7){(A), 42

U.S.C. § 7607(d)(7)(A).

A group of electric utilities and industry groups

have filed a separate petition raising issues specific

to industry. Many of industry petitioners’ arguments

concern circulating fluidized bed EGUs, or CFBs. As

relevant here, CFBs differ from conventional pulver-

ized coal units in that CFBs inject air and additional

materials, such as limestone, into the combustion

zone in order to achieve lower-temperature combus-

tion. At that lower temperature, fuel breaks down to

a lesser degree, thus enabling CFBs to control emis-

sions without using add-on controls.

Industry petitioners argue that these design dif-

ferences required EPA to create a separately regulat-

ed subcategory for CFBs. They emphasize that EPA

recognized the need for a CFB subcategory in a dif-

ferent rulemaking proceeding, the “Boiler MACT”

Rule.

Industry petitioners’ CFB-related arguments are

unavailing. Contrary to industry petitioners’ asser-

tions, nothing in the Clean Air Act “requires” EPA to

create a CFB subcategory. Rather, the statute gives

EPA substantial discretion in determining whether

subcategorization is appropriate. See CAA

§ 112(d)(1), 42 U.S.C. § 7412(d)(1) (EPA “may distin-

guish among classes, types, and sizes of sources”)

(emphasis added); see also Nat? Ass'n of Clean Water

Agencies v. EPA, 734 F.3d 1115, 1159 (D.C. Cir. 2013)

(“EPA’s subcategorization authority under § 112 in-

volves an expert determination, placing a heavy bur-

den on a challenger to overcome deference to EPA’s

53a

articulated rational connection between the facts

found and the choice made.”) (internal quotation

marks omitted). EPA’s decision not to create a CFB

subcategory in the Final Rule is reasonable and well-

supported by the record. Among other things, EPA

noted that CFBs were among the best and worst per-

formers for various pollutants, indicating that CFBs

have emissions profiles similar to other coal-fired

units despite their operational differences. See Final

Rule, 77 Fed. Reg. at 9397.

The record similarly supports EPA’s determina-

tion that the 0.002 Ilb/MMBtu hydrogen chloride limit

for CFBs is achievable. As noted above, some CFB

units were among the top performers for each of the

regulated pollutants, including hydrogen chloride.

See id. The record thus demonstrates that at least

some CFB units are in fact able to achieve the hydro-

gen chloride limit. In any event, the fact that the Fi-

nal Rule may not be cost effective for all CFBs does

not necessarily mean EPA erred in declining to create

a CFB subcategory or in setting emission standards

applicable to those units.

EPA’s decision to subcategorize CFBs in the Boil-

er MACT Rule is not to the contrary. There, EPA

concluded that CFBs presented relevant differences

with respect to carbon monoxide— not mercury, acid

gases, or particulates (the pollutants at issue in this

rulemaking). See National Emission Standards for

Hazardous Air Pollutants for Major Sources: Indus-

trial, Commercial, and Institutional Boilers and Pro-

cess Heaters, 76 Fed. Reg. 15,608, 15,617-18 (Mar.

21, 2011).

Industry petitioners further argue that at a min-

imum, EPA should have set separate acid gas stand-

54a

ards for coal-refuse-fired CFBs. Those units burn

waste coal from other coal-mining operations and use

the resulting ashes in mine reclamation projects. In-

dustry petitioners maintain that these fuel-ash reuse

efforts would be imperiled by the stringency of the

_acid gas standards in the Final Rule.

We conclude that EPA reasonably decided that

separate standards for coal-refuse-fired CFBs were

not warranted. Industry petitioners’ assertion that

the hydrogen chloride standards are unattainable for

coal-refuse-fired CFBs is undermined by the fact that

some of those units were among the best performers

for hydrogen chloride. See RTC v.1 at 587. EPA also

suggested alternative compliance methods that it

says would permit coal-refuse-fired CFBs to continue

participating ih reclamation efforts. See Final Rule,

77 Fed. Reg. at 9412. Regardless, nothing in the

CAA obligates EPA to set standards in a way that

always allows the re-use of fuel ash, even if doing so

might be a more desirable outcome for some EGU op-

erators.

In contrast to its decision on CFBs, EPA did cre-

ate a subcategory for lignite-fired EGUs. (Lignite coal]

is also referred to as “low rank” coal due to its low

heat content.) Industry petitioners argue that the

emission standard for the lignite subcategory is based

on an improperly calculated minimum stringency

level, or MACT floor. Industry petitioners also con-

tend that the emission standard set by EPA is not

achievable. We consider these arguments in turn.

1. MACT floor. Industry petitioners insist that

EPA incorrectly calculated the MACT floor for lignite

55a

units, rendering that standard arbitrary and capri-

cious. They assert that EPA used “cherry picked” da-

ta from the top 6% of units, instead of the top 12% as

required by § 112(d)(3)(A). Finally, industry petition-

ers argue that EPA did not properly account for vari-

ability in lignite coal.

Industry petitioners’ data-bias argument is simi-

lar to the argument made by the State, Industry &

Labor petitioners regarding the mercury MACT floor,

supra Part III.A.3. And, as with that argument, peti-

tioners’ assertions regarding the lignite MACT floor

find no support in the record. EPA has offered a rea-

sonable, non-biased explanation of its data-collection

and analysis process. See MACT Floor Memo at 10;

RTC v.1 at 559-60.

Industry petitioners’ objections regarding the var-

iability of lignite coal likewise fail. EPA accounted for

variability due to differing chemical compositions of

coal by applying its Upper Prediction Limit analysis.

See NPRM, 76 Fed. Reg. at 25,041. Industry peti-

tioners do not challenge that analysis itself. They do

suggest in passing that EPA’s results are flawed, see

Industry Pet’rs’ Br. 10, but offer no explanation as to

why that is so. Such cursory treatment is inadequate

to place their challenge to EPA's variability analysis

before the court, because “it is not enough merely to

mention a possible argument in the most skeletal

way, leaving the court to do counsel’s work, create

the ossature for the argument, and put flesh on its

bones.” Davis v. Pension Benefit Guar. Corp., 734

F.3d 1161, 1166-67 (D.C. Cir. 2013) (internal quota-

tion marks and alterations omitted). While EPA

acknowledged that it could not account for all opera-

tional variability, it concluded that its variability

56a

analysis “is an appropriate method of addressing the

concern that these standards must be met at all

times.” RTC v.1 at 458. EPA’s explanation is suffi-

cient to withstand our “extremely deferential” review

of this kind of technical judgment. New York v. Reilly,

969 F.2d 1147, 1152 (D.C. Cir. 1992).

2. Beyond-the-floor limit. EPA is permitted to set

a more restrictive, “beyond-the-floor” emission stand-

ard if the agency determines that such a standard is

“achievable” considering costs, energy requirements,

and applicable control technologies. CAA § 112(d)(2),

42 U.S.C. § 7412(d)(2). To be “achievable,” a standard

“must be capable of being met under most adverse

conditions which can reasonably be expected to re-

cur.” Nat? Lime Ass’n v. EPA, 627 F.2d 416, 431 n.46

(D.C. Cir. 1980). In this case, industry petitioners ar-

gue that EPA failed to consider the limitations of ap-

plicable control technologies. As a result, petitioners

contend, EPA’s beyond-the-floor standard for lignite-

fired EGUs is not achievable because the standard

mandates unrealistically high levels of mercury re-

duction.

We reject petitioners’ challenge to the beyond-the-

floor standard. EPA concluded during the rulemaking

process that the standard for lignite units is achieva-

ble if sources increase their use of a particular control

technology, activated carbon injection. See Beyond-

the-Floor Memo at 1-4. According to EPA, increased

carbon injection can reduce emissions by up to 90%,

well in excess of the reductions necessary to reach

beyond-the-floor levels. Jd. at 1—2. Ultimately, the

dispute on this issue amounts to a factual disagree-

ment between EPA and petitioners over the effec-

tiveness of activated carbon injection. Because the

57a

record contains no data inconsistent with EPA’s posi-

tion on the efficacy of activated carbon injection, we

defer to the agency’s determination that the beyond-

the-floor emission standard for lignite-fired EGUs is

achievable.

Public utility companies are subject to certain

state-law contracting requirements that may length-

en the process of installing upgraded controls. That

added time, industry petitioners argue, requires EPA

to grant a blanket, one-year extension of the compli-

ance deadline to public power companies. We disa-

gree. Once again, petitioners’ argument amounts to a

claim that a decision the Clean Air Act leaves to

EPA’s discretion should instead be mandatory. See

CAA § 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B) (EPA

“may issue” an extension under certain circumstanc-

es). EPA explained at length why such a blanket ex-

tension was inappropriate. See Final Rule, 77 Fed.

Reg. at 9407, 9409-11. Most importantly, industry

petitioners did not show — and likely could not

show— that an extension is necessary for the instal-

lation of controls at every public power company. On

the contrary, EPA’s data indicated that “most units

will be able to fully comply” within the three-year pe-

riod established by EPA. Final Rule, 77 Fed. Reg. at

9410. EPA’s decision not to issue a blanket extension

therefore was not arbitrary or capricious.®

® To the extent that petitioners object to EPA's alleged

failure to respond to comments on this issue made by pub-

lic power companies on the ground that this failure vio-

lates CAA § 307(d)(6)(B), 42 U.S.C. § 7607(d)(6)(B), we do

58a

IV.

We turn to the challenges by Environmental! peti-

tioners and Julander Energy Company.

Environmental petitioners challenge the provi-

sions of the Final Rule that ailow compliance with

emission standards to be demonstrated through (1)

emissions averaging and (2) options for non-mercury

metal HAP emissions monitoring. Chesapeake Clh-

mate Action Network, Conservation Law Foundation,

Environmental Integrity Project, and Sierra Club ob-

ject to averaging as unlawful; Chesapeake Climate

Action Network and Environmental Integrity Project

object to the monitoring options as failing to provide

reasonable assurance of compliance. They presented

their objections (save one) during the comment period

and EPA has responded to them. Although the chal-

lenges to emissions averaging are also pending before

EPA in a petition for reconsideration, and usually

would be incurably premature, see, e.g., Clifton Power

Corp. v. FERC, 294 F.3d 108, 112 (D.C. Cir. 2002),

the text and legislative history of the Clean Air Act

make clear this usual approach is inapplicable, see

UARG v. EPA, Nos. 12-1166, 12-1366, 12-1420, 2014

WL 928230, at *3 (D.C. Cir. Mar. 11, 2014); CAA

not address that objection because it was first raised in a

pending petition for reconsideration. See UARG, 2014 WL

928230, at *4. We also do not address industry petitioners’

arguments concerning the standards for petroleum-coke-

fired EGUs and liquid oil-fired non-continental EGUs be-

cause those arguments were likewise first raised in a

pending petition for reconsideration.

59a

§ 307(b)(1), 42 U.S.C. § 7607(b)(1); S. Rep. No. 101-

228, at 3755 (1989).

1. Averaging. Under the Final Rule, existing con-

tiguous, commonly-controlled EGUs in the same sub-

category can demonstrate compliance by averaging

their emissions as an alternative to meeting certain

requirements on an individual basis. Final Rule, 77

Fed. Reg. at 9384, 9473-76 (codified at 40 C.F.R.

§ 63.10009). Averaging is permissible only between

the same types of pollutants, individual EGUs that

are part of the same affected source, EGUs subject to

the same emission standard, and existing (not new)

EGUs. Id. at 9385. Each facility intending to use

emissions averaging must develop an emissions av-

eraging plan identifying “(1) [aJil units in the averag-

ing group; (2) the control technology installed; (3) the

process parameter that will be monitored; (4) the spe-

cific control technology or pollution prevention meas-

ure to be used; (5) the test plan for the measurement

of the HAP being averaged; and (6) the operating pa-

rameters to be monitored.” Jd. at 9385—86.

Environmental petitioners contend the averaging

alternative is unlawful because it relaxes the strin-

gency of the MACT floor standards. With one excep-

tion, EPA set the MACT floor standards based on a

thirty-boiler operating day averaging period. Jd. at

9385, 9479-80. Allowing multiple EGUs to average

their emissions data effectively extends, petitioners

maintain, the standards’ averaging period to sixty

days (for two units), ninety days (for three units), or

more. In their view, a longer averaging period per-

mits longer and larger pollution spikes because high

measurements can be averaged over more hours of

normal, lower-pollution operations.

60a

Section 112(d)(3), 42 U.S.C. § 7412(d)(3), provides

that emission standards for existing sources “shall

not be less stringent” than “the average emission lim-

itation achieved by the best performing 12 percent” of

such sources. The subsection (d)(2) “beyond-the-floor”

requirement provides that emission standards for

new or existing sources “shal! require the maximum

degree of reduction in emissions of the hazardous air

pollutants subject to this section .. . that the Admin-

istrator...determines is achievable.” CAA

§ 112(d)(2), 42 U.S.C. § 7412(d)(2).

EPA permissibly interpreted § 112(d) to allow

emissions averaging as provided for in the Final

Rule. See Chevron, 467 U.S. at 843. That section nei-

ther expressly allows nor disallows emissions averag-

ing among multiple units. In the Final Rule, EPA

stated:

Averaging across affected units is permitted

only if it can be demonstrated that the total

quantity of any particular HAP that may be

emitted by that portion of a contiguous major

source that is subject to the same standards in

the [Final Rule] will not be greater under the

averaging mechanism than it could be if each

individual affected EGU in the subcategory

complied separately with the applicable stand-

ard. Under this test, the practical outcome of

averaging is equivalent to compliance with the

MACT floor limits by each discrete EGU, and

the statutory requirement that the MACT

standard reflect the maximum achievable

emissions reductions is, therefore, fully effec-

tuated.

6la

77 Fed. Reg. at 9385. Viewing averaging as “an

equivalent, more flexible, and less costly alternative”

to requiring units to demonstrate compliance indi-

vidually, EPA explained that permitting averaging is

part of its “general policy of encouraging the use of

flexible compliance approaches where they can be

properly monitored and enforced.” Id.

Environmental petitioners concede the averaging

alternative will not result in an increase in a source’s

total emissions beyond the level permitted under the

applicable standard, see Envtl. Pet's’ Br. 18, and

while theoretically averaging could allow an individ-

ual unit’s emissions to exceed the standard, under

the Final Rule that exceedance must be offset by oth-

er, better-performing units to demonstrate compli-

ance. They have not challenged EPA’s interpretation

of the ambiguous term “source,” which EPA defined

as referring to “the collection of coal- or oil-fired

EGUs... within a single contiguous area and under

common control,” Final Rule, 77 Fed. Reg. at 9366,

rather than a single EGU. Because § 112(d)(3), 42

U.S.C. § 7412(d)(3), requires EPA to prescribe emis-

sions limitations fo. “sources,” not units, EPA could

permissibly establish a standard that allows averag-

ing within a single source. Cf. Chevron, 467 U.S. at

866. Although this may allow individual] units to ex-

ceed the emissions limitation, the statute does not

require EPA to regulate emissions on a unit level.

As EPA has observed, Environmental petitioners’

main objection appears to be that the Final Rule does

not include a “discount factor” whereby emission

rates are reduced for sources using an averaging al-

ternative. Petitioners point, for example, to the dis-

count factor included in the Hazardous Organic

62a

NESHAP rule, Envtl. Pet’rs’ Br. 9-10, in which EPA

determined that “to carry out the mandate of section

112(d)(2), some portion of these cost savings {from

averaging] should be shared with the environment by

requiring sources using averaging to achieve more

emission reductions than they would otherwise.”’

To the extent petitioners’ objection is that EPA

failed to explain why it did not include a discount fac-

tor, EPA, in fact, offered a reasonable and adequate

explanation. In the Final Rule, EPA explained that

“Igliven the homogeneity of fuels within the rules

subcategories, along with other emissions averaging

criteria, the Agency believes use of a discount factor

to be unwarranted for this rule.” Final Rule, 77 Fed.

Reg. at 9386. Further, in responding to comments,

EPA explained that unlike the Hazardous Organic

rule, “which covers a broad number of unit types,

products, and processes,” EGUs subject to the Final

Rule “differ generally only in the fuel used to produce

electricity,” a difference, EPA concluded, “accounted

for... by prohibiting units from differing subcatego-

ries — which are fuel based — from participating in

emissions averaging.” RTC v.2 at 361-62. EPA noted

as well its agreement that “other safety factors in the

rule obviate the need for a discount factor,” id. at 363,

including the requirement averaging start within

three years of promulgation of the Final Rule.

’ National Emission Standards for Hazardous Air Pollu-

tants for Source Categories; Organic Hazardous Air Pollu-

tants from the Synthetic Organic Chemical Manufacturing

Industry and Other Processes Subject to the Negotiated

Regulation for Equipment Leaks, 59 Fed. Reg. 19,402,

19,430 (Apr. 22, 1994).

63a

The suggestion by Environmental petitioners that

EPA improperly relied on its Upper Prediction Limit

(“UPL”) analysis to mitigate the effect of averaging

on the stringency of emission standards fares no bet-

ter. The UPL analysis in the MACT floor calculation

is designed to “assess variability of the best perform-

ers.” NPRM, 76 Fed. Reg. at 25,041. To the extent pe-

titioners point to EPA’s statement in responding to

comments, they ignore its context. EPA stated that it

“disagrees with the suggestion that another variabil-

ity component need be considered for those EGU

owners or operators who choose to engage in emis-

sions averaging; the current UPL analyses was [sic]

developed to take factors such as those mentioned by

the commenter into account.” RTC v.2 at 363. Accord-

ing to Environmental petitioners, “the UPL analyses

contain nothing that would eliminate (or even miti-

gate) the Averaging Alternative’s additional relaxa-

tion of the standards,” and it was therefore inappro-

priate for EPA to rely on this analysis in support of

the Final Rule’s emissions averaging provisions. En-

vtl. Pet’rs’ Br. 20. But there is nothing to indicate this

is what EPA did. In its statement, EPA was respond-

ing to industry comments arguing that because EPA

had accounted for individual-unit variability in the

UPL analysis in setting MACT floors, it was inappro-

priate to allow a multi-unit facility to further reduce

variability by averaging, without applying a discount

factor. It is far too great a stretch to read EPA’s re-

sponse as an admission that EPA relied on its UPL

analysis to support emissions averaging.

2. Monitoring. The Final Rule provides three al-

ternatives to continuous emissions monitoring to

demonstrate compliance with the non-mercury metal

HAP standards. They are: (1) use of a continuous

64a

parametric monitoring system (“CPMS’”), (2) quarter-

ly performance testing, and (3) performance testing

once every three years for qualifying low emitting

EGUs. See Final Rule, 77 Fed. Reg. at 9466 (codified

at 40 C.F.R. § 63.10000(c)(1)({iii-iv)). Environmental

petitioners first challenged CPMS in a pending peti-

tion for reconsideration, and therefore that challenge

is not properly before the court for decision now. See

UARG, 2014 WL 928230, at *4, *5 n.4.

Any EGU may demonstrate compliance with the

nonmercury metal standards through quarterly per-

formance tests. Final Rule, 77 Fed. Reg. at 9372,

9384, 9466. If a unit’s emission results for all re-

quired tests are less than 50 percent of the applicable

emission limit for a three-year period, the EGU may

qualify as a low emitting EGU for non-mercury metal

HAPs and is then required to conduct performance

testing only once every three years, so long as it

maintains compliance. Jd. at 9371, 9466, 9471.

Environmental petitioners maintain that stack

testing conducted quarterly or once every three years

cannot provide reasonable assurance of compliance

with a standard set as a thirty-day emissions rate,

given EPA’s determination that stack test results are

highly variable, and that EPA has failed to explain

how compliance options involving long intervals be-

tween performance tests and lacking any control of

operating conditions between tests can provide suffi-

ciently timely or reliable information to assure com-

plhance. EPA has provided a reasonable explanation

for its determination that each of these monitoring

options complies with the statutory requirements of

CAA §§ 114 and 504.

65a

Section 504(b), 42 U.S.C. § 7661c(b), provides that

“continuous emissions monitoring need not be re-

quired if alternative methods are available that pro-

vide sufficiently reliable and timely information for

determining compliance.” Although § 114(a)(3), 42

U.S.C. § 7414(a)(3), “require[s] enhanced monitoring”

for major stationary sources, there is “no presump-

tion in favor of any particular type of monitoring.”

Sierra Club, 353 F.3d at 991. EPA has “broad discre-

tion in selecting a monitoring regime that ensures

compliance,” and as long as it “reasonably articu-

late[s] the basis for its decision,” id., the court will

“defer to the informed discretion of the Agency,” rec-

ognizing that “analysis of this issue requires a high

level of expertise,” id. (quoting Nat7 Lime, 233 F.3d

at 635).

EPA explained that, in its judgment, “[t]he quar-

terly stack testing period, coupled with underlying

monitoring of control devices or the additional moni-

toring for liquid oil-fired units, is expected to be fre-

quent enough to ensure that a unit’s emissions con-

trol devices and processes continue to operate in the

same manner as during the previous stack test.” RTC

v.2 at 93. “If there are significant changes to the op-

eration of the unit or the fuel, then a retest is re-

quired to reconfirm that the source remains in com-

pliance under the new operating circumstances.” Id.

EPA acknowledged, with .espect to the low emitting

EGU option, that the available data “shows an EGU’s

potential variability,” but reasoned that “well-

operated EGUs — such as those qualifying for [low

emitting EGU] status — are expected to have much

less variable emissions” and that “the requirement to

revert to the original monitoring frequency should

subsequent emissions testing show the EGUs no

66a

longer meet [low emitting EGU] status will keep

source owners or operators interested in maintaining

[that] status.” Jd. at 244. EPA has provided a reason-

able explanation for its determinations that these

two monitoring options provide sufficient assurance

of compliance with the applicable emission stand-

ards.

Julander Energy Company, an oil and natural gas

development, exploration, and production company,

challenges EPA’s decision not to adopt stricter emis-

sion standards by requiring “fuel switching” by EGUs

from coal to natural gas. It contends that EPA unlaw-

fully relied on a non-statutory factor (prohibition of

construction of new coal-fired EGUs), failed to con-

sider a required statutory factor (§ 112’s requirement

that EPA consider collateral benefits of control op-

tions), and reached arbitrary and capricious conclu-

sions about natural gas supply and infrastructure

and costs.

As a threshold matter, the court must address Ju-

lander’s standing. Industry intervenor-respondents

contend Julander lacks standing under Article III of

the Constitution. In fact, Julander’s “injury in fact,”

causation, and redressability under Article III, see

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992), are self-evident, see Sierra Club v. EPA, 292

F.3d 895, 899—900 (D.C. Cir. 2002), insofar as the Fi-

nal Rule does not require EGUs to switch to natural

gas, to the detriment of Julander’s stated interests,

and on remand EPA could require fuel switching.

EPA, however, contends Julander lacks “prudential

standing” because its interests do not come within

the zone-of-interests test articulated in Association of

67a

Data Processing Service Organizations, Inc. v. Camp,

397 U.S. 150 (1970). The Supreme Court recently

clarified that “prudential standing is a misnomer’ as

applied to the zone-of-interests analysis,” Lexmark

Int7T, Inc. v. Static Control Components, Inc., No. 12-

873, 2014 WL 1168967, at *6 (U.S. Mar. 25, 2014)

(quoting Ass’n of Battery Recyclers, Inc. v. EPA, 716

F.3d 667, 675-76 (D.C. Cir. 2013) (Silberman, J., con-

curring)). The question remains whether Julander’s

interest is “arguably within the zone of interests to be

protected or regulated by the statute.” Match-E-Be-

Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n

of Data Processing, 397 U.S. at 153).

Although the zone-of-interests test “is not meant

to be especially demanding,” Clarke v. Secs. Indus.

Ass'n, 479 U.S. 388, 399 (1987), we conclude that Ju-

lander falls outside the zone of interests protected by

§ 112 of the CAA. Notwithstanding our concurring

colleague’s suggestion, this conclusion is not the re-

sult of a “coin flip” to decide which of our precedents

to follow. Concurring Op. at 17, 29. The Supreme

Court has instructed that “the breadth of the zone of

interests varies according to the provisions of law at

issue.” Lexmark, 2014 WL 1168967, at *8 (citation

omitted). Accordingly, this court must be guided by

those of our precedents that have interpreted § 112,

and not those applying other statutory provisions, in-

cluding the APA. Those cases hold in the context of

challenges to emission standards that competitors of

regulated parties fall outside the zone of interests

protected by § 112.

In Association of Battery Recyclers, 716 F.3d at

674, the court held that a corporation could not chal-

68a

lenge EPA’s failure to impose more stringent emis-

sion standards on its competitors because that inter-

est fell outside the zone of interests protected by

§ 112. In Cement Kiln Recycling Coalition v. EPA,

255 F.3d 855, 871 (D.C. Cir. 2001), the court similarly

held that the purely commercial interests of manu-

facturers of pollution control equipment seeking more

rigorous regulation of their competitors under § 112

were not within the zone of interests that Congress

intended to be relied upon to challenge EPA’s claimed

disregard of the CAA. This was so even though their

pecuniary interests in increasing demand for their

products were aligned with the goals of the CAA. The

court explained that Congress’s evident purpose in

enacting the CAA was not to compel those sources

with less-than-best pollution contro] to invest in up-

graded equipment, but only to meet the standards, as

distinct from adopting the methods of emission con-

trol, of the best performing sources. Jd. This court has

not read the Supreme Court’s decision in Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians, 132

S. Ct. 2199, to change the zone-of-interests standard,

and the court is bound to follow its own precedent.

See Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179

(D.C. Cir. 2012); id. at 180 (Tatel, J., concurring).

Julander disputes that it is seeking a competitive

advantage by increasing the regulatory burden on its

competitors, pointing out that as an oil and natural

gas development company it is not a direct competi-

tor of the regulated coal- and oil-fired EGUs. It main-

tains that it is properly characterized as a vendor to,

and not a competitor of, the regulated entities. None-

theless, the reasoning of our binding precedent en-

compasses Julander’s situation. As the court ob-

served in Hazardous Waste Treatment Council v.

69a

EPA, 861 F.2d 277, 282 (D.C. Cir. 1988), where the

Treatment Council, much like Julander, claimed its

interests, although pecuniary, were “in sync” with

those sought to be served by the Resource Conserva-

tion and Recovery Act, the Supreme Court’s standard

in Clarke “leaves the status of this sort of incidental

benefit somewhat unclear.” In “find[ing] operational

meaning for a test that demands less than a showing

of congressional intent to benefit but more than a

‘marginal[Jrela[tionship]’ to the statutory purposes,”

id. at 283 (quoting Clarke, 479 U.S. at 399), this court

acknowledged that even absent an apparent congres-

sional intent to benefit there may still be “some indi-

cator that the plaintiff is a peculiarly suitable chal-

lenger of administrative neglect [to] support[] an in-

ference that Congress would have intended eligibil-

ity,” id. But the court rejected the notion that the pe-

titioner’s “in sync” interests were more than “mar-

ginally related” to Congress’s environmental purpos-

es. Id,

Whenever Congress pursues some goal, it is

inevitable that firms capable of advancing that

goal may benefit. If Congress authorized bank

regulators to mandate physical security

measures for banks, for example, a shoal of se-

curity services firms might enjoy a profit po-

tential — detective and guard agencies, manu-

facturers of safes, detection devices and smal]

arms, experts on entrance control, etc. But in

the absence of either some explicit evidence of

an intent to benefit such firms, or some reason

to believe that such firms would be unusually

suitable champions of Congress’s ultimate

goals, no one would suppose them to have

standing to attack regulatory laxity. And of

70a

course a rule that gave any such plaintiff

standing merely because it happened to be dis-

advantaged by a particular agency decision

would destroy the requirement of prudential

standing; any party with constitutional stand-

ing could sue.

Id. (emphasis added). In Cement Kiln, 255 F.3d at

871, the court embraced this analysis as no less ap-

plicable to the CAA. The court has further observed

that “judicial intervention may defeat statutory goals

if it proceeds at the behest of interests that coincide

only accidentally with those goals,” Hazardous Waste,

861 F.2d at 283, and that “open-ended emissions

standards” are particularly susceptible to such “ma-

nipulation,” Honeywell Intl Inc. v. EPA, 374 F.3d

1363, 1371 (D.C. Cir. 2004).

Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir.

2002), is of no aid to Julander. In that case, the court

held that a manufacturer of fuel additives seeking

information (through an open process for testing

emissions control systems) in order to comply with its

own regulatory obligations fell within the zone of in-

terests protected or regulated by the CAA. See id. at

1148. Ethyl had an interest that “appear[ed] congru-

ent with those of the [CAA], i.e., the development of

products that will reduce harmful air pollutants,” id.,

without the potential for distortion of the regulatory

process of concern to the court in Hazardous Waste,

861 F.2d at 285, and Cement Kiln, 255 F.3d at 871.

Unlike petitioners seeking to increase the regulatory

burden on others in order to advance their own com-

mercial interests, Ethyl sought access to information

to “improve its products with an eye to conformity to

emissions needs” and to “secur[e] EPA approval for

7la

its own fuel additive products under the [Clean Air]

Act.” Ethyl Corp., 306 F.3d at 1147-48. The court

emphasized “the interdependence between motor ve-

hicle certification under the Act (the process at stake

here) and fuel regulations (under which Ethyl is a di-

rect regulatee).” Jd. at 1148. Julander, in contrast,

seeks stricter regulation of coal- and oil-fired EGUs,

not information that would enable it to comply with

its own regulatory obligations.

Julander’s suggestion that its interests are

properly characterized as those of a vendor, not a

competitor, is unavailing. It cannot rely on its exist-

ing relationship with natural] gas-fired EGUs because

they are not subject to the Final Rule, 77 Fed. Reg. at

9309. And claiming that it has standing as a poten-

tial vendor to coal- and oil-fired EGUs, in the event

they were forced to switch to natural gas, is at odds

with the reasoning underlying the vendor-vendee line

of cases. A vendor has standing “to assert the interest

of [regulated] vendees.” Natl Cottonseed Products

Ass'n v. Brock, 825 F.2d 482, 490 (D.C. Cir. 1987) (cit-

ing FAIC Secs., Inc. v. United States, 768 F.2d 352,

360-61 (D U. Cir. 1985)). Julander is not standing in

for the interests of its potential vendees, which, in

fact, here challenge Julander’s petition. Consequent-

ly, the interests of Julander and the regulated indus-

try petitioners are not “two sides of the same coin.”

FAIC Secs., 768 F.2d at 359.

Julander had the opportunity to submit its views

on fuel switching to EPA during the rulemaking pro-

ceedings. And it did. See Julander Comments Aug. 4,

2011. It could also have sought permission to appear

as amicus in this court, which it did not. Absent any

reason to conclude that it is an “unusually suitable

72a

champion|]” of Congress’ goals in the CAA, we hold,

consistent with this court’s precedent, that Julander’s

interest in increasing the regulatory burden on oth-

ers falls outside the zone of interests protected by the

CAA and therefore Julander may not proceed as a pe-

titioner in this court.

73a

KAVANAUGH, Circuit Judge, concurring in part

and dissenting in part: Suppose you were the EPA

Administrator. You have to decide whether to go

forward with a proposed air quality regulation. Your

only statutory direction is to decide whether it is “ap-

propriate” to go forward with the regulation. Be‘ore

making that decision, what information would you

want to know? You would certainly want to under-

stand the benefits from the regulations. And you

would surely ask how much the regulations would

cost. You would no doubt take both of those consider-

ations — benefits and costs — into account in making

your decision. That’s just common sense and sound

government practice.

So it comes as a surprise in this case that EPA ex-

cluded any consideration of costs when deciding

whether it is “appropriate” — the key statutory term —

to impose significant new air quality regulations on

the Nation’s electric utilities. In my view, it is unrea-

sonable for EPA to exclude consideration of costs in

determining whether it is “appropriate” to impose

significant new regulations on electric utilities. To be

sure, EPA could conclude that the benefits outweigh

the costs. But the problem here is that EPA did not

even consider the costs. And the costs are huge, about

$9.6 billion a year — that’s billion with a b — by EPA’s

own calculation.

In Part I of this opinion, I explain my respectful

disagreement with the majority opinion’s decision to

uphold EPA’s exclusion of cost from its decisionmak-

ing under this statutory provision.

In Part II of this opinion, I write to address this

Court’s case law applying the “zone of interests” test

under the Administrative Procedure Act. I accept the

74a

majority opinion’s conclusion that petitioner Julander

Energy Corporation — a natural gas company chal-

lenging EPA’s allegedly unlawful under-regulation of

Julander’s competitor coal and oil companies — does

not fall within the “zone of interests” of the Clean Air

Act, at least as the zone of interests test has been ap-

plied by some decisions of this Court. But those deci-

sions are inconsistent with other decisions of this

Court and, more importantly, are incompatible with a

40-year string of Supreme Court decisions applying

the “zone of interests” test. Put simply, our case law

applying the zone of interests test is in a state of dis-

order and needs to be cleaned up in the near future.

These consolidated cases concern EPA’s Final

Rule, “National Emission Standards for Hazardous

Air Pollutants From Coal- and Oil-Fired Electric Util-

ity Steam Generating Units,” 77 Fed. Reg. 9304 (Feb.

16, 2012). The Rule implements provisions of the

Clean Air Act, 42 U.S.C. § 7401 et seq., regarding

emissions of hazardous air pollutants.

As the majority opinion recounts, the Clean Air

Act originally provided EPA substantial discretion to

identify and regulate pollution from sources emitting

hazardous air pollutants. That approach proved to be

time-consuming and largely unworkable, so in 1990

Congress amended the Act to cabin much of EPA’s

discretion. The 1990 amendments required EPA to

identify stationary sources of 189 enumerated haz-

ardous air pollutants and to adopt standards for lim-

iting emissions of those pollutants from those

75a

sources. See 42 U.S.C. § 7412.' Those technology-

based standards are commonly referred to as the

“maximum achievable control technology,” or MACT,

standards.

EPA uses a two-step process for setting MACT

standards. It begins by setting a minimum stringency

level, or “floor,” based on the performance of the best-

performing units in a particular source category. See

id. § 7412(d)(3). At that first step, EPA may not con-

sider costs. Once the agency sets the statutory floor,

it then determines, considering cost and the other

factors listed in Section 112(d)(2), whether an even

more restrictive standard is “achievable.” /d.

§ 7412(d)(2). EPA refers to these stricter require-

ments as “beyond-the-floor” standards.

The two-step process outlined in Section 112(d) —

what I will call the MACT program — applies auto-

matically to most sources of hazardous air pollutants.

But for one category of sources — electric utilities —

Congress devised an alternative system as set forth

1 Six other common pollutants emitted by stationary

sources are regulated under a different section of the

Clean Air Act. The National Ambient Air Quality Stand-

ards, or NAAQS, prescribe the maximum permissible lev-

els of those six pollutants in the ambient air. See 42

U.S.C. § 7409{a)-(b). Under thet NAAQS program, EPA

must choose levels for emissions of those pollutants which,

“allowing an adequate margin of safety, are requisite to

protect the public health.” Id. § 7409(b)(1).

76a

in Section 112(n)(1)(A) of the Act.2 That alternative

system erects two threshold hurdles before EPA may

regulate electric utilities under the MACT program.

First, Congress required EPA to “perform a study of

the hazards to public health reasonably anticipated

to occur as a result of emissions by” electric utilities

and report the results of the study to Congress within

three years of the enactment of the amendments. Jd.

§ 7412(n)(1)(A). Second, Congress provided that after

the study was completed, EPA could regulate electric

utilities under the MACT program only “if the Ad-

ministrator finds such regulation is appropriate and

necessary after considering the results of the study.”

Id. (emphasis added).*

? The electric utilities included in this alternative sys-

tem are coal- and oil-fired electric utility steam generating

units.

3 In full, the relevant section of the statute reads: “The

Administrator shall perform a study of the hazards to

public health reasonably anticipated to occur as a result of

emissions by electric utility steam generating units of pol-

lutants listed under subsection (b) of this section after im-

position of the requirements of this chapter. The Adminis-

trator shall report the results of this study to the Congress

within 3 years after November 15, 1990. The Administra-

tor shall develop and describe in the Administrator’s re-

port to Congress alternative contro] strategies for emis-

sions which may warrant regulation under this section.

The Administrator shall regulate 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 required by this sub-

paragraph.” 42 U.S.C. § 7412(n)(1)(A).

77a

The meaning of Section 112(n)(1)(A) — particularly

the term “appropriate” — is a critical question in this

litigation. Industry petitioners and EPA dispute

whether EPA, when determining whether regulation

of electric utilities under the MACT program is “ap-

propriate,” must consider the cost to industry and the

public from regulating electric utilities under that

program.‘

EPA thinks not. EPA acknowledges that, in the

past, it has interpreted and applied the word “appro-

priate” in this statute to provide for the consideration

of costs. See 70 Fed. Reg. 15,994, 16,001 & n.19 (Mar.

29, 2005). But the agency has changed its interpreta-

tion. EPA’s position now is that EPA may reasonably

exclude consideration of costs in determining wheth-

er it is “appropriate” to regulate electric utilities un-

der the MACT program. The majority opinion up-

holds EPA’s interpretation.

I respectfully disagree with the majority opinion.

It is certainly true, as the majority opinion states,

that the word “appropriate” is ambiguous in isolation,

and that an agency’s reasonable interpretation of an

ambiguous statutory term is permissible. See Chev-

ron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). But

the agency’s answer must be “a permissible construc-

* The other key statutory term in Section 112(n)(1)(A) —

“necessary” — is not in dispute. EPA states that regulation

of electric utilities is necessary “if the identified or poten-

tial hazards to public health or the environment will not

be adequately addressed by the imposition of the require-

ments of’ the Clean Air Act. 76 Fed. Reg. 24,976, 24,987

(May 3, 2011).

78a

tion of the statute” — or put another way, the agency's

interpretation of the ambiguity must be reasonable.

Id. at 843. Moreover, under the APA, an agency

must consider the relevant factors when exercising

its discretion under the governing statute. See Motor

Vehicle Manufacturers Association of the United

States, Inc. v. State Farni Mutual Automobile Insur-

ance Co., 463 U.S. 29, 42-43 (1983).

In this case, whether one calls it an impermissible

interpretation of the term “appropriate” at Chevron

step one, or an unreasonable interpretation or appli-

cation of the term “appropriate” at Chevron step two,

or an unreasonable exercise of agency discretion un-

der State Farm, the key point is the same: It is en-

tirely unreasonable for EPA to exclude consideration

of costs in determining whether it is “appropriate” to

regulate electric utilities under the MACT program.

To begin with, consideration of cost is commonly

understood to be a central component of ordinary

regulatory analysis, particularly in the context of

health, safety, and environmental regulation. And

Congress legislated against the backdrop of that

common understanding when it enacted this statute

in 1990. Put simply, as a matter of common sense,

common parlance, and common practice, determining

whether it is “appropriate” to regulate requires con-

sideration of costs.

Drawing on his extensive administrative law and

regulatory experience, not to mention his experience

as a jurist, Justice Breyer has perhaps best explained

the centrality of cost consideration to proper regula-

tory decisionmaking. In order “better to achieve regu-

latory goals — for example, to allocate resources so

that they save more lives or produce a cleaner envi-

79a

ronment — regulators must often take account of all of

a proposed regulation’s adverse effects.” Whitman v.

American Trucking Associations, 531 U.S. 457, 490

(2001) (Breyer, J., concurring). That is so because

“every real choice requires a decisionmaker to weigh

advantages against disadvantages, and _ disad-

vantages can be seen in terms of (often quantifiable)

costs.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S.

208, 232 (2009) (opinion of Breyer, J.). Cost is a par-

ticularly salient consideration for administrative

agencies today, “in an age of limited resources avail-

able to deal with grave environmental problems,

where too much wasteful expenditure devoted to one

problem may well mean considerably fewer resources

available to deal effectively with other (perhaps more

serious) problems.” Jd. at 233. An “absolute prohibi-

tion” on considering costs “would bring about irra-

tional results. .. . [I]t would make no sense to require

plants to spend billions to save one more fish or

plankton. That is so even if the industry might some-

how afford those billions.” Jd. at 232-33 (internal ci-

tation and quotation marks omitted).

In addition to Justice Breyer, many other leading

jurists and scholars on administrative law have like-

wise recognized that cost generally has to be a rele-

vant factor in the overall regulatory mix. Consider

the following:

e Justice Kagan: “[W]hat does it take in a statute

to make us say, look, Congress has demanded

that the regulation here occur without any at-

tention to costs? In other words, essentially,

Congress has demanded that the regulation has

occurred in a fundamentally silly way.” Tran-

script of Oral Argument at 13, EPA v. EME

80a

Homer City Generation, L.P., No. 12-1182 (U.S.

Dec. 10, 2013).5

e Professor Sunstein: “Without some sense of both

costs and benefits — both nonmonetized and

monetized —regulators will be making a stab in

the dark.” Cass R. Sunstein, Cost-Benefit Anal-

ysis and the Environment, ETHICS 351, 354

(2005).

e Professor Sunstein: “A rational system of regu-

lation looks not at the magnitude of the risk

alone, but assesses the risk in comparison to the

costs.” Cass R. Sunstein, Jnterpreting Statutes

in the Regulatory State, 103 HARV. L. REV. 405,

493 (1989).

e Professor Sunstein: “[A]ny reasonable judgment

will ordinarily be based on some kind of weigh-

ing of costs and benefits, not on an inquiry into

benefits alone. .. . If the costs would be high and

the benefits low, on what rationale

should ...the EPA refuse even to consider the

former? There appears to be no good answer. If

there is not, the agency’s interpretations should

be declared unreasonable.” Cass R. Sunstein,

5 To be clear, I do not read the statutory text at issue in

the EME Homer case as encompassing costs, at least not

in the way EPA argued there. But regardless of how that

particular case turns out, the background principle suc-

cinctly articulated by Justice Kagan at oral argument re-

flects the commonsense and well-settled understanding

that cost is an essential factor in determining whether it

is “appropriate” to regulate.

8la

Cost-Benefit Default Principles, 99 MICH. L.

REV. 1651, 1694 (2001).

e Professors Revesz and Livermore: “For certain

kinds of governmental programs, the use of cost-

benefit analysis is a requirement of basic ra-

tionality.” RICHARD L. REVESZ & MICHAEL A.

LIVERMORE, RETAKING RATIONALITY 12 (2008).

e Professor Pierce: “All individuals and institu-

tions naturally and instinctively consider costs

in making any important decision. ... [I]t is of-

ten impossible for a regulatory agency to make a

rational decision without considering costs in

some way.” Richard J. Pierce, Jr.. The Appro-

priate Role of Costs in Environmental Regula-

tion, 54 ADMIN. L. REV. 1237, 1247 (2002).

Every presidential administration for more than

three decades has likewise made analysis of costs an

integral part of the internal Executive Branch regu-

latory process. See generally Helen G. Boutrous,

Regulatory Review in the Obama Administration:

Cost-Benefit Analysis for Everyone, 62 ADMIN. L. REV.

243, 246-48 (2010). Most recently, in 2011, President

Obama issued Executive Order 13,563, which follows

an earlier Order issued by President Clinton and fol-

lowed by President George W. Bush. The Order di-

rects each agency “to use the best available tech-

niques to quantify anticipated present and future

benefits and costs as accurately as possible.” 76 Fed.

Reg. 3821, 3821 (Jan. 21, 2011). Under President

Obama’s Executive Order, agencies may proceed with

proposed regulations only if the benefits justify the

costs. Id.

82a

To be clear, Congress may itself weigh the costs of

a particular kind of regulation, or otherwise take

costs out of the equation, when assigning authority to

executive and independent agencies to regulate a

particular industry or in a particular area. See

Whitman v. American Trucking Associations, 531

U.S. 457 (2001) (statutory provision does not include

consideration of costs). And even when an agency has

to take costs into account, it of course may conclude

that the benefits of a proposed regulation outweigh

the costs. Moreover, different agency heads, and dif-

ferent Presidents, may assess and weigh certain ben-

efits and costs differently depending on their over-

arching philosophies.

But when considering just as a general matter

whether it is “appropriate” to regulate, it is well-

accepted that consideration of costs is a central and

well-established part of the regulatory decisionmak-

ing process.

But EPA did not consider costs here. And EPA’s

failure to do so is no trivial matter. The estimated

cost of compliance with EPA’s Final Rule is approxi-

mately $9.6 billion per year, by EPA’s own calcula-

tion. 77 Fed. Reg. at 9306, Table 2. To put it in per-

spective, that amount would pay the annual health

insurance premiums of about two million Americans.

It would pay the annual salaries of about 200,000

members of the U.S. Military. It would cover the an-

nual budget of the entire National Park Service three

times over. Put simply, the Rule is “among the most

expensive rules that EPA has ever promulgated.”

JAMES E. MCCARTHY, CONGRESSIONAL RESEARCH

SERVICE, R42144, EPA’s UTmLITy MACT: WILL THE

LIGHTS GO OUT? 1 (2012).

83a

EPA calculated the $9.6 billion cost figure as part

of its Regulatory Impact Analysis accompanying the

Rule. That Regulatory Impact Analysis was required

by President Obama’s Executive Order. Yet EPA’s

official position in this Court is that the costs identi-

fied in the Regulatory Impact Analysis should have

“no bearing on” the determination of whether regula-

tion is appropriate. EPA Br. 55.

On the other side of the ledger, the benefits of this

Rule are disputed: Industry petitioners focus on the

reduction in hazardous air pollutant emissions at-

tributable to the regulations, which amount to only

$4 to $6 million dollars each year. See 77 Fed. Reg.

at 9428; State, Industry & Labor Br. 21. If those fig-

ures are right, the Rule costs nearly $1,500 for every

$1 of health and environmental benefit produced.

For its part, EPA says it would estimate the benefits

at $37 to $90 billion dollars based on what it says are

the indirect benefits of reducing PMa25, a type of fine

particulate matter that is not itself regulated as a

hazardous air pollutant. See 77 Fed. Reg. at 9428.

To be sure, as I have said, EPA may be able to

conclude that the benefits outweigh the costs in de-

termining whether it is “appropriate” to regulate

electric utilities under the MACT program. But to re-

iterate, that’s not what EPA has done in this Rule.

Rather, according to EPA, it is irrelevant how large

the costs are or whether the benefits outweigh the costs

in determining whether it is “appropriate” to regulate

electric utilities under the MACT program.

In response to petitioners’ claim that the legal is-

sue here has huge real-world consequences, the ma-

jority opinion suggests that it may not matter all that

much that EPA refused to consider costs in deciding

84a

whether it is “appropriate” to regulate electric utili-

ties under the MACT program, because EPA does ac-

count for costs in the second step of the MACT pro-

gram, when EPA sets “beyond-the-floor” standards.

Maj. Op. at 24. I respectfully find that to be a re

herring. After all, once EPA determines that it is ap-

propriate to regulate electric utilities under the

MACT program, costs are not relevant at the first,

“setting the floor” stage of the MACT program. And

meeting that floor will be prohibitively expensive,

particularly for many coal-fired electric utilities, re-

gardless of whether EPA decides to go further and set

a “beyond-the-floor” standard. So in the real world in

which electric utilities operate, the financial burden

of complying with that first “setting the floor” step of

the MACT program —where costs are not considered —

will likely knock a bunch of coal-fired electric utilities

out of business and require enormous expenditures

by other coal and oil-fired electric utilities. Telling

someone that costs will be considered in a regulatory

step that occurs after they have already had to pay an

exorbitant amount and may already have been put

out of business is not especially reassuring. The ma-

jority opinion’s attempt to downplay the effects of its

decision thus rings a bit hollow.

In downplaying the issue here, the majority opin-

ion also says that the result of this case is that elec-

tric utilities will just be treated like other sources. In

saying that, the majority opinion, in my respectful

view, does not sufficiently account for the fact that

treating electric utilities differently from standard

sources was the intent of Section 112(n)(1)(A), as re-

vealed by the statutory text. If Congress had intend-

ed EPA to consider the costs of regulating electric

utilities only when deciding whether to adopt beyond-

85a

the-floor standards, and not as a threshold decision

in deciding whether to regulate electric utilities un-

der the MACT program to begin with, it would have

done one of two things: It would have either automat-

ically regulated electric utilities under the MACT

program, as it did with other sources, or provided

that regulation under the MACT program would be

automatic if the three-year study found that these

sources indeed emitted hazardous air pollutants.

That Congress declined to choose either of those op-

tions, and instead directed EPA to regulate electric

utilities under the MACT program only if “appropri-

ate,” reinforces the conclusion that Congress intend-

ed EPA to consider costs in deciding whether to regu-

late electric utilities at the threshold, and not simply

at the second beyond-the-floor stage of the MACT

program.

Not only does EPA’s approach depart from the

clear statutory scheme, standard agency deci-

sionmaking, and the common understanding of the

term “appropriate” in this regulatory context, it also

effectively negates the congressional compromise that

was ultimately embodied in the statutory text of the

1990 Act. Under the initial Senate proposal, electric

utilities would been have listed as sources under Sec-

tion 112(c) and therefore automatically regulated un-

der Section 112(d), the MACT program. See 3 A

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT

AMENDMENTS OF 1990, at 4119, 4418-28 (1993). But

the House subsequently modified the Senate bill to

make regulation of electric utilities under the MACT

program dependent on the results of a study and the

Administrator’s subsequent determination that regu-

lation was “appropriate” and necessary. See 2 id. at

2148-49. In the words of the House bill’s legislative

86a

sponsor, Congressman Oxley, the goal of the counter-

proposal was to provide “protection of the public

health while avoiding the imposition of excessive and

unnecessary costs on residential, industrial, and

commercial consumers of electricity.” See 1 id. at 1417

(emphasis added). The House’s proposal ultimately

prevailed with the Conference Committee “because

of... the extremely high costs that electric utilities

will face under other provisions of the new Clean Air

Act amendments.” Id. at 1416. That Conference

Committee view — that EPA should avoid imposing

unwarranted financial burdens when deciding to

regulate electric utilities — is encapsulated in the tex-

tual directive that EPA regulate electric utilities un-

der the MACT program only if “appropriate.”

The majority opinion here says that the term “ap-

propriate” is ambiguous. But the Supreme Court of-

ten looks to legislative history to help inform inter-

pretation of otherwise ambiguous statutes, including

in Chevron cases. See Chevron 467 U.S. at 843 n.9.

And here, the legislative history should resolve any

lingering ambiguity on the key point of what “appro-

priate” encompasses. It establishes that Congress in

1990 chose to impose these threshold requirements

on EPA specifically because it wanted EPA to consid-

er costs before regulating electric utilities under the

MACT program. EPA’s interpretation of Section

112(n)(1)(A) in this case upsets Congress’s careful

balance and stacks the deck in favor of regulation of

electric utilities under the MACT program. In effect,

EPA’s reading of the statute replaces its authority to

regulate electric utilities if “appropriate” with a

command to regulate electric utilities under the

MACT program regardless of costs. That is not what

87a

Congress intended or permitted and thus is beyond

EPA’s authority. See Chevron, 467 U.S. at 843 n.9.

In upholding EPA’s cost-blind approach, the ma-

jority opinion points to other statutory provisions

that expressly reference cost and invokes the familiar

interpretive canon that “[w]here Congress includes

particular language in one section of a statute but

omits it in another section of the same Act, it is gen-

erally presumed that Congress acts intentionally and

purpusely in the disparate inclusion or exclusion.”

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

majority opinion assigns particular weight to the Su-

preme Court’s decision in Whitman v. American

Trucking Associations, 531 U.S. 457 (2001), which

referenced that canon when construing a different

section of the Clean Air Act. See Whitman, 531 U.S.

at 467 (“We have therefore refused to find implicit in

ambiguous sections of the CAA an authorization to

consider costs that has elsewhere, and so often, been

expressly granted.”). As in Whitman, according to the

majority opinion, Congress’s decision not to explicitly

mention cost in Section 112(n)(1)(A), despite doing so

in other parts of the Act, creates a negative implica-

tion that costs are an unnecessary consideration.

But I respectfully believe the majority opinion is

misreading — or at least over-reading — Whitman.

Whitman was a textualist decision written for a

unanimous Court by Justice Scalia. It stands for the

basic proposition that consideration of costs cannot be

jammed into a statutory factor that, by its terms,

otherwise would not encompass “costs,” particularly

when other provisions of the Act expressly reference

costs. See Entergy, 556 U.S. at 223 (Whitman “stands

for the rather unremarkable proposition that some-

88a

times statutory silence, when viewed in context, is

best interpreted as limiting agency discretion.”).

In Whitman itself, the statutory factor was a pro-

vision of the Clean Air Act, Section 109(b)(1), that.di-

rected EPA to set ambient air quality standards at

levels “requisite to protect the public health” with “an

adequate margin of safety.” 42 U.S.C. § 7409(b)(1).

The dispute concerned whether those “modest words”

granted EPA “the power to determine whether im-

plementation costs should moderate national air

quality standards.” 531 U.S. at 468. Concluding that

EPA had not been granted such power, the Court

speaking through Justice Scalia observed that cost “is

both so indirectly related to public health and so full

of potential for canceling the conclusions drawn from

direct health effects that it would surely have been

expressly mentioned in §§ 108 and 109 had Congress

meant it to be considered.” Id. at 469.

The statutory provision at issue in Whitman dif-

fers significantly from the statute at issue here. The

statutory provision in Whitman tied regulation solely

to “public health,” which is typically a critical factor

on the other side of the balance from costs, not a fac-

tor that includes costs. Here, by contrast, the key

statutory term is “appropriate” — the classic broad

and all-encompassing term that naturally and tradi-

tionally includes consideration of all the relevant fac-

tors, health and safety benefits on the one hand and

costs on the other. To unblinkingly rely on Whitman

here is to overlook the distinct language of the rele-

vant statutes. Cf. Michigan v. EPA, 213 F.3d 663,

677-79 (D.C. Cir. 2000) (the term “significant” “does

not in itself convey a thought that significance should

89a

be measured in only one dimension,” and in “some

contexts, ‘significant’ begs a consideration of costs”).

To sum up: All significant regulations involve

tradeoffs, and I am very mindful that Congress has

assigned EPA, not the courts, to make many discre-

tionary calls to protect both our country’s environ-

ment and its productive capacity. In this case, if EPA

had decided, in an exercise of its judgment, that it

was “appropriate” to regulate electric utilities under

the MACT program because the benefits outweigh

the costs, that decision would be reviewed under a

deferential arbitrary and capricious standard of re-

view. See American Radio Relay League, Inc. v. FCC,

524 F.3d 227, 247-48 (D.C. Cir. 2008) (separate opin-

ion of Kavanaugh, J.). But before we assess the mer-

its of any cost-benefit balancing, this statutory

scheme requires that we first ensure that EPA has

actually considered the costs. See State Farm, 463

U.S. at 42-43. In my view, whether we cal] it a Chev-

ron problem or a State Farm problem, it is unreason-

able for EPA to exclude consideration of costs when

deciding whether it is “appropriate” to regulate elec-

tric utilities under the MACT program. I respectfully

dissent from the majority opinion’s contrary conclu-

sion.®

6 On the Chevron point, I add one further comment.

When the Government wins a Chevron case, it may pre-

vail at Chevron step one (because the agency’s interpreta-

tion of the statute is mandated by the statutory language)

or at Chevron step two (because the agency’s interpreta-

tion of an ambiguous statute is at least reasonable). In

those cases, the step one or step two label may have prac-

tical significance, as it may determine whether the agency

90a

This case implicates another important adminis-

trative law issue, the “zone of interests” test under

the Administrative Procedure Act.’ The Court holds

that petitioner Julander Energy Company falls out-

side the “zone of interests” the Clean Air Act is de-

signed to protect and thus cannot challenge the Final

Rule. The Court reasons that the concerns raised by

Julander, a natural gas production company, are

merely to seek more stringent regulation of its coal

and oil company competitors. See Maj. Op. at 57-58.

could try to adopt a contrary interpretation in the future.

On the other hand, when the agency loses a Chevron case

because the agency has adopted an interpretation outside

the permissible bounds of the statute, even after reading

relevant ambiguities in the agency’s favor, there is not

much if any practical difference for purposes of future

agency action whether we label our decision as Chevron

step one or Chevron step two. See generally City of Arling-

ton v. FCC, 133 S. Ct. 1863, 1868, 1874 (2013). So it is

here, in my view.

7 This Court has traditionally referred to the zone of in-

terests test as a component of “prudential standing.” As

the Supreme Court has recently explained, however, the

test does not belong under the “prudential” rubric.

Lexmark International, Inc. v. Static Control Components,

Inc., No. 12-873 (U.S. Mar. 25, 2014). Instead, whether a

plaintiff comes with the “zone of interests” is a statutory

question “that requires us to determine, using traditional

tools of statutory interpretation, whether a legislatively

conferred cause of action encompasses a particular plain-

tiffs claim.” Jd., slip op. at 8.

Sla

I reluctantly join that portion of the Court’s opin-

ion because it is consistent with ~>me of this Court’s

previous decisions applying the zone of interests test.

I hasten to add that the decisions on which the Court

today relies are inconsistent with other of this

Court’s precedents. Given that our case law makes

this issue a de facto coin flip, I cannot fault an opin-

ion that lands on heads rather than tails.

I am concerned, however, about the erratic incon-

sistency in our case law. I am even more concerned

that our cases holding that competitors are outside

the zone of interests —including today’s decision — are

inconsistent with the governing Supreme Court prec-

edents. I write separately to explain my concerns.

The Supreme Court first announced the APA

“zone of interests” test in Association of Data Pro-

cessing Service Organizations, Inc. v. Camp, 397 U.S.

150 (1970) (Data Processing). In that case, vendors of

data processing services challenged the Comptroller

of the Currency’s decision to allow competitor nation-

al banks to sell the same services. The data pro-

cessing vendors alleged that the agency decision vio-

lated a provision of the National Bank Act. The dis-

trict court dismissed the case for lack of standing,

and the court of appeals affirmed the dismissal. The

Supreme Court reversed. For purposes of Article III

standing, the Court first said that there was “no

doubt” that the petitioners had alleged a sufficient

“injury in fact.” Jd. at 152. In reaching that conclu-

sion, the Court rejected the then-prevailing require-

ment that plaintiffs show that a defendant’s actions

invaded a “legal interest” belonging to the plaintiff.

Id. at 153. The Court instead adopted the now-

familiar “injury in fact” test.

92a

For purposes of the APA, the Court added that the

separate question of being able to sue under the APA

“concerns, apart from the ‘case’ or ‘controversy’ test,

the question whether the interest sought to be pro-

tected by the complainant is arguably within the zone

of interests to be protected or regulated by the stat-

ute or constitutional guarantee in question.” Jd. And

the Court said that the “zone of interests” require-

ment was satisfied by the plaintiffs in Data Pro-

cessing, who were competitors of the national banks.

The Court noted with approval the “trend .. . toward

enlargement of the class of people who may protest

administrative action.” Jd. at 154. In keeping with

that trend, the Court refused to take an overly re-

strictive view of “the generous review provisions” of

the APA, which the Court noted should be construed

“not grudgingly but as serving a broadly remedial

purpose.” Jd. at 156.8

The Supreme Court reaffirmed its broad under-

standing of the zone of interests test in Arnold Tours,

Inc. v. Camp, 400 U.S. 45 (1970) and Investment

Company Institute v. Camp, 401 U.S. 617 (1971). The

plaintiffs in both cases were competitors of national

banks. Both cases concerned decisions by the Comp-

8 Although Data Processing referenced the Administra-

tive Procedure Act, the opinion did not explicitly tie the

zone of interests test to the text of the APA. The Court

subsequently clarified that the zone of interests test is a

“gloss” on Section 702 of the APA, which grants the right

to judicial review of an agency action to any person “ad-

versely affected or aggrieved” by that action. See Clarke v.

Securities Industry Association, 479 U.S. 388, 395, 400

n.16 (1987).

93a

troller of the Currency to authorize national banks to

offer new services to customers: travel services in Ar-

nold Tours and investment services in Investment

Company Institute. And in both cases, the Court held

that plaintiffs who would have to compete with the

banks under the new regulations satisfied the zone of

interests test and could challenge the Comptroller's

decision. See Arnold Tours, 400 U.S. at 46; Invest-

ment Company Institute, 401 U.S. at 620-21.

Notably, Justice Harlan dissented in Jnvestment

Company Institute because there was no evidence of

“any congressional concern for the interests of peti-

tioners and others like them in freedom from compe-

tition.” Investment Company Institute, 401 U.S. at

640 (Harlan, J., dissenting). But that fact, the Court

held, was not fatal to the plaintiffs’ case; it was

enough to satisfy the zone of interests test that Con-

gress, for its own reasons, “did legislate against the

competition that the petitioners challenge.” Jd. at 621

(majority opinion).

Thus, at the time of its inception, the zone of in-

terests test was understood to be part of a broader

trend toward expanding the class of persons able to

bring suits under the APA challenging agency ac-

tions. See Copper & Brass Fabricators Council, Inc. v.

Department of the Treasury, 679 F.2d 951, 953 n.2

(D.C. Cir. 1982) (R.B. Ginsburg, J., concurring) (i

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