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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2014

## Text

Supreme Court, Us.
FILED

No. 14-46, -47, -49 te

Sn the Supreme Court of the United States

MICHIGAN, ET AL.,

Petitioners,
Vv.

ENVIRONMENTAL PROTECTION AGENCY, Et A.,
Respondents.

UTILITY AIR REGULATORY GROUP,
Petitioner,
Vv.

ENVIRONMENTAL PROTECTION AGENCY, er av,
Respondents.

NATIONAL MINING ASSOCIATION,
Petitioner,
v.

ENVIRONMENTAL PROTECTION AGENCY, Et AL.,
Respondents.

On Petitions for Writs of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION

Martha Coakley

Attorney General of Massachusetts
Melissa Hoffer*
Tracy L. Triplett

Assistant Attorneys General
Environmental Protection Division
One Ashburton Place, 18th Floor
Boston, MA 02108
617-963-2322
melissa. hoffer@state.ma.us

*Counsel of Record
(Additional counsel listed on inside pages)

sacetenememennneed

Becker Gallagher Cincinnati, OH - Washingion, D.C. - 800.990.5001

KAMALA D. HARRIS
Attorney General of
California

455 Golden Gate Ave.
Suite 11000

San Francisco, CA 94102

GEORGE JEPSEN
Attorney General of
Connecticut

55 Elm St.

Hartford, CT 06141

JOSEPH R. BIDEN, III
Attorney General of

Delaware
820 N. French St.

Wilmington, DE 19801

LISA MADIGAN
Attorney General of
Illinois

100 W. Randolph St.
12th Floor

Chicago, IL 60601

THOMAS J. MILLER
Attorney General of
lowa

1305 E. Walnut Street
Des Moines, IA 50319

JANET T. MILLS
Attorney General of
Maine

6 State House Station
Augusta, ME 04333

DOUGLAS F. GANSLER
Attorney General of
Maryland

1800 Washington Blvd.
Baltimore, MD 21230

LORI SWANSON
Attorney General of
Minnesota

(for the Minnesota
Pollution Control Agency)
445 Minnesota St.

Suite 900

St. Paul, MN 55101

JOSEPH A. FOSTER
Attorney General of
New Hampshire

33 Capitol St.
Concord, NH 03301

GARY K. KING
Attorney General of
New Mexico

P.O. Box 1508
Santa Fe, NM 87504

ERIC T. SCHNEIDERMAN
Attorney General of
New York

The Capitol
Albany, NY 12224

ROY COOPER
Attorney General of
North Carolina
P.O. Box 629
Raleigh, NC 27602

ELLEN F. ROSENBLUM
Attorney General of
Oregon ae

1162 Court St. NE
Salem, OR 97301

PETER F. KILMARTIN
Attorney General of
Rhode Island -

150 South Main St.
Providence, RI 02903

WILLIAM H. SORRELL
Attorney General of
Vermont

109 State St.
Montpelier, VT 05609

IRVIN B. NATHAN
Attorney General for the
District of Columbia
441 4th Street, NW
Washington, DC 20001

GEORGE A. NILSON
City Solicitor for the
City of Baltimore

100 Holliday St.
Baltimore, MD 21202

STEPHEN R. PATTON
Corporation Counsel of the
City of Chicago

30 N. LaSalle St.

Suite 800

Chicago, IL 60602

MICHAEL A. SIRAGUSA
County Attorney for the
County of Erie

95 Franklin St.

Room 1634

Buffalo, NY 14202

ZACHARY W. CARTER
Corporation Counsel of the
City of New York

100 Church St.

New York, NY 10007

i

COUNTERSTATEMENT OF
QUESTION PRESENTED

Clean Air Act Section 112(n)(1)(A) directs the
Environmental Protection Agency (EPA) to regulate
hazardous air pollutants from power plants if
“appropriate and necessary” after studying public
health hazards; the required study and other scientific
data confirmed that power plant hazardous air
pollution presents a serious risk to public health, and
Congress omitted any reference to costs in Section
112(n\(1)(A), although Congress expressly told EPA to
consider costs in taking other actions required by
Section 112. The question presented is:

Whether EPA permissibly declined to consider the
costs of regulation when it made its threshold
determination to regulate hazardous air pollutants
from power plants.

il

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION

PRESENTED i
TABLE OF CITED AUTHORITIES iii
INTRODUCTION l
STATEMENT 3

REASONS FOR DENYING THE PETITIONS 11

I.

II.

Il.

The D.C. Circuit’s Ruling That EPA Was Not
Required to Consider Costs in Making
Its Threshold Determination Whether
to Regulate Hazardous Air Pollutants
from Power Plants Under Section 112 of the
Act Is Fully Consistent With this Court’s
Precedent 12

EPA’s Interpretation of Section 112(n)\(1)(A)
Has No Precedential Importance Because the
Provision Applies Only to the Agency’s
Threshold Determination to Regulate Power
Plant Hazardous Air Pollution 19

States’ Experience Shows That, as a
Practical Matter, the MATS Rule Is
Achievable, Cost-Effective Control
Technologies Are Readily Available, and
There Is No Real-World Impediment to

Compliance 21

CONCLUSION 26

ili
TABLE OF CITED AUTHORITIES
CASES
EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584 (2014) 13, 16, 25
Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) 12, 13, 14, 15, 16
New Jersey v. EPA,

517 F.3d 574 (D.C. Cir. 2008) y ee,
North Carolina v. EPA,

531 F.3d 896 (D.C. Cir. 2008) 25
North Carolina v. EPA,

550 F.3d 1176 (D.C. Cir. 2008) 25
Utility Air Regulatory Group v. EPA,

134 S. Ct. 2427 (2014) 15, 16, 17
Whitman v. American Trucking Associations, Inc..,

531 U.S. 457 (2001) 12, 13, 14, 15, 18
FEDERAL STATUTES
33 U.S.C. § 1313(d)(1) 8
42 U.S.C. § 7410(a)2)(D)(i) 13
42 U.S.C. § 7412(b)(1) 3
42 U.S.C. § 7412(c)(1) 3
42 U.S.C. § 7412(c)(9) 7,16
42 U.S.C. § 7412(c\9)BXi) g

42 U.S.C. § 7412(c)(9)(B)(1i) 7

1V

42 U.S.C. § 7412(d)(2)

42 U.S.C. § 7412(d\(3)

42 U.S.C. § 7412(d)(3)(A)-(B)
42 U.S.C. § 7412(n)(1)(A)

42 U.S.C. § 7412(n)(1)(B)

Clean Air Act Amendments of 1970, Pub. L. No. 91-
604, 84 Stat. 1676 (1970)

FEDERAL REGISTER NOTICES

63 Fed.
65 Fed.
68 Fed.
70 Fed.

70 Fed.
70 Fed.

71 Fed.
72 Fed.

73 Fed.
75 Fed.
76 Fed.

76 Fed.
76 Fed.

Reg.
. 79,825 (Dec. 20, 2000)
. 7,928 (Dec. 19, 2003)

. 15,994 (Mar. 29, 2005)
. 25,162 (May 12, 2005)
. 59,402 (Oct. 12, 2005)
. 76,518 (Dec. 20, 2006)
. 74,088 (Dec. 28, 2007)
. 226 (Jan. 2, 2008)

. 15,608 (Mar. 21, 2011)
. 9,450 (Feb. 17, 2011)

_ 24,976 (May 3, 2011)

. 48,208 (Aug. 8, 2011)

57,356 (Oct. 27. 1998)

77 Fed. Reg. 9,304 (Feb. 16, 2012)

4,17

passim

6, 16

3

10

6,9, 10, 22

9, 25

passim

Vv

STATE STATUTES AND REGULATIONS
5 COLO. CODE REGS. § 1001-8:B. VIII

CONN. GEN. STAT. § 22a-199

CONN. GEN. STAT. § 22a-199(b)(1)

DEL. ADMIN. CODE, tit. 7, § 1146-6

DEL. ADMIN. CODE, tit. 7, § 1146-6.2

ILL. ADMIN. CODE tit. 35, § 225.230

ILL. ADMIN. CODE tit. 35, § 225.230(a)
MASS. REGS. CODE tit. 310, § 7.29

MASS. REGS. CODE tit. 310, § 7.29(5a)(3)(f
MD. REGS. CODE tit. 26, § 11.27.03.D

MICH. ADMIN. CODE r. 336.2502a

MICH. ADMIN. CODE r. 336.2503(1)(a)-(b) (2009)

MINN. R. 7011.0561

MONT. ADMIN. R. 17.8.771

N.H. REV. STAT. ANN. § 125-0:11-18

N.J. ADMIN. CODE § 7:27-27.7

N.Y. COMP. CODES R. & REGS. tit. 6, § 246.6
N.Y. COMP. CODES R. & REGS. tit. 6, § 246.6(a)
15A N.C. ADMIN. CODE 2D.2511

OR. ADMIN. R. 340-228-0606

OR. ADMIN. R. 340-228-0606(1)

23
23
24
23
24
23
24
23
24
23
23
23

23, 24

23
23

23, 24

23
24
23
23
24

vi

WIs. ADMIN. CODE NR § 446.13 23
WIs. ADMIN. CODE NR § 446.13(1) 24
OTHER AUTHORITIES

Connecticut Dep’t of Energy & Envtl. Protection,
Comments, Proposed MATS Rule (2011),
available at http://www.regulations.gov 24, 25

EPA, 2011 National Listing of Fish Advisories,
EPA-820-F-13-058 (2013), available at http://wat
er.epa.gov/scitech/swguidance/fishshellfish/fish
advisories/loader.cfm?csModule=security/getfil
e& Pagel D=685927 (last visited Oct. 8, 2014) 7

1 LEGISLATIVE HISTORY OF THE CLEAN AIR ACT
AMENDMENTS OF 1990 (1993) 4,5

Massachusetts Dept of Envtl. Protection,
Comments, Proposed MATS Rule (2011),
available at http://www.regulations.gov 24, 25

Michigan Dep’t of Envtl. Quality, Comments,
Proposed MATS Rule (2011), available at
http://www.regulations.gov 21, 22

Natl Ass’n of Clean Air Agencies, Comments,
Proposed MATS Rule (2011), available at
http://www.regulations.gov 8, 24, 25, 26

New Jersey Dep’t of Envtl. Protection, Comments,
Proposed MATS Rule (2011), available at
http://www.regulations.gov 24, 25

New York State Dep’t of Envti. Conservation,
Comments, Proposed MATS Rule (2011),
available at http://www.regulations.gov 25

Vii

Northeast States for Coordinated Air Use
Management, Comments, Proposed MATS Rule,
avauable at http://(www.regulations.gov 24, 25

Regional Mercury Total Maximum Daily Load, 44
(2007) (Northeast TMDL) available at
http://www.epa.gov/region 1/eco/tmdl/pdfs/ne/N
ortheast-Regional-Mercury-TMDL.pdf (last
visited Oct. 8, 2014) 2,8

S. REP. NO. 101-228 (1989) 3, 4

1

INTRODUCTION

Over two decades ago, Congress amended Section
112 of the Clean Air Act and directed EPA to establish
standards to limit hazardous air pollutants emitted by
fossil-fueled power plants if EPA determined, after
studying the public health hazards of those emissions,
that it was “appropriate and necessary” to do so. In
2000, EPA made that determination based on an
extensive record reflecting over a decade of research,
including peer-reviewed scientific studies and actual
power plant emissions data. EPA reaffirmed that
finding, citing additional evidence, when it
subsequently promulgated the Mercury and Air Toxics
Standards (MATS) Rule in 2012 to protect public
health and the environment.

By 2015, the MATS Rule will reduce power plant
mercury emissions by seventy-five percent, fine
particulate matter emissions (to which other toxic
metals adhere) by nineteen percent, and acid gas
emissions by eighty-eight percent. 77 Fed. Reg. 9,304,
9,424 (Feb. 16, 2012). These nationally-applicable
reductions have been long-awaited by the undersigned
states and local governments to stem the cross-border
movement of toxins that are emitted by power plants in
other states and that harm our residents and natural
resources. For example, more than 10,000 inland
waterbodies and over 46,000 river miles in the
Northeast are impaired for fish consumption primarily
due to atmospheric deposition of mercury, a problem

2

that will not be solved until out-of-state emissions are
controlled.’

None of Petitioners’ claims regarding the MATS
Rule warrants this Court’s review. EPA made the
reasonable decision to base its threshold determination
whether to regulate on the public health and
environmental harms posed by hazardous air pollution
emitted by power. plants and not to focus on costs when
making that threshold determination. The D.C.
Circuit’s decision upholding the MATS Rule was based
on acareful analysis of the relevant text, structure, and
context of Section 112, is consistent with this Court’s
precedent, and involves interpretation of a singular
provision of Section 112 that has no recurring
significance as it will be applied only this one time.

Petitioners wrongly claim that regulation of the
Nation's largest source of toxic air emissions will
provide “virtually no benefit” to public health, Pet. of
the Nat’] Mining Ass’n. (NMA Pet.) at 15, while unduly
burdening the utility industry and _ electricity
consumers, see, e.g., Pet. of the Utility Air Regulatory
Group (UARG Pet.) at 33-34; Pet. of the State of
Michigan, et al., at 11-12 (Michigan Pet.). Not only do
Petitioners grossly understate the benefits identified by
EPA as part of its separate regulatory impact analysis,
they also fail to account for the experience of the states
that have already successfully promulgated mercury
emission standards more stringent than the MATS

' See Regional Mercury Total Maximum Daily Load, at vi, 44
(2007) (Northeast TMDL) available at http//www.epa.gov/region 1

/eco/tmdl/pdfs/ne/Northeast-Regional-Mercury-TMDL.pdf (last
visited Oct. 8, 2014).

3

Rule. Power plants in those states have been able to
comply with such standards—demonstrating that, as a
practical matter, the MATS Rule is achievable using
commercially available, cost-effective control
technologies and without sacrificing electric system
reliability.
The petitions should be denied.
STATEMENT

Since 1970, Congress has sought to reduce
hazardous air pollutant emissions. See Clean Air Act
Amendments of 1970, Pub. L. No. 91-604, 84 Stat.
1676, 1685 (1970). In 1990, in large part due to EPA’s
failure to regulate more than a handful of these toxic
pollutants over nearly two decades, Congress
extensively revised the Clean Air Act’s hazardous air
pollutant provision, Section 112. See S. REP. No. 101-
228, at 128, 131 (1989). Congress identified 189
hazardous air pollutants that EPA must regulate. 42
U.S.C. § 7412(b)(1). Congress then gave EPA one year
to list all categories of sources emitting more than a
specified quantity of those pollutants. Jd. § 7412(c)(1).
Congress required EPA to set emission limits based on
what is commonly referred to as the “maximum
achievable control technology” (MACT) standard, with
minimum or “floor” standards for existing sources
based upon the emission levels achieved by the best-
performing twelve percent of sources in a source
category. Id. § 7412(d)(3A)-(B) (a standard that, by
definition, reflects cost consideratiuns since it is based
on the presumably cost-effective performance of actual!
units). Congress also required EPA to set, where
achievable, a more stringent “beyond-the-floor”

4

standard, after consideration of costs and other factors.
Id. § 7412(d)(2).

At the time of the 1990 amendments, Congress
recognized power plants were a significant source of
hazardous air pollutants, including mercury.’
Congress required EPA to study the public health
hazards “reasonably anticipated to occur” from
hazardous air pollutants emitted by power plants “after
imposition of” the other requirements of the Act, and
mandated EPA to regulate if EPA determined it was
“appropriate and necessary” to do so:

[t]he Administrator shall perform a study of the
hazards to public health reasonably anticipated
to occur as a result of emissions by [power
plants] of pollutants listed under subsection (b)
of this section after imposition of the
requirements of this chapter. The
Administrator shall report the results of this
study to the Congress within 3 years after
November 15, 1990. The Administrator shall
develop and describe in the Administrator’s
report to Congress alternative control strategies
for emissions which may warrant regulation
under this section. The Administrator shall
regulate [power plants] under this section, if the
Administrator finds such regulation is
appropriate and necessary after considering the

? See S. REP. No. 101-228, at 131, 154 (1989); 1 LEGISLATIVE
HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 871-72
(1993) (statement of Sen. Durenberger).

5

results of the study required by this
subparagraph.

42 U.S.C. § 7412(nX1XA).* This provision effectively
provided power plants with “a three-year pass,” while
EPA conducted the study required by Section
112(n)\(1)A) (Utility Study) and evaluated whether it
was “appropriate and necessary” to regulate them
under Section 112. NMA Pet. App. at 25a.

Despite Congress’s intent to address the public
health threat posed by power plant hazardous air
pollution, it was not until 2000, ten years after the
1990 amendments and seven years after Congress’s
deadline for EPA to have finalized the Utility Study,
that EPA made the determination that it was
“appropriate and necessary” to list power plants as a
source category. 65 Fed. Reg. 79,825, 79,831 (Dec. 20,
2000). EPA made this threshold determination based
on the Utility Study, which confirmed the adverse
public health effects associated with power plants’
hazardous air pollution. Jd. at 79,826. Specifically,
EPA cited contamination of U.S. waterbodies and fish
with mercury—a potent neurotoxin, which, when
ingested, can cause serious and long-lasting
neurological problems, especially in children exposed in
utero—as well as the potential carcinogenic effects of
certain non-mercury metals emissions and potential

* This provision addressed questions raised by some members
regarding the effect of the Title [V acid rain program pollution
controls, also added in 1990, on power plant hazardous air
pollutant emissions, see 1 LEGISLATIVE HISTORY OF THE CLEAN AIR
ACT AMENDMENTS OF 1990, supra note 2, at 871-72 (statement of
Sen. Durenberger), a program that had been implemented by the
time EPA issued the 2012 MATS Rule.

6

concerns related to acid gas emissions. Jd. at 79,827,
79,829, 79,830. In addition to the Utility Study, EPA
considered the multi-source mercury study required by
Section 112(n)(1)(B) and two other congressionally-
mandated studies performed by the National Institute
of Environmental Health Sciences and the National
Academy of Sciences showing risks to public health,
including sensitive populations, of consuming mercury-
contaminated fish. See 77 Fed. Reg. at 9,307; 76 Fed.
Reg. 24,976, 24,982 (May 3, 2011); 65 Fed. Reg. at
79,826.

With regard to mercury, EPA found that sixty
percent of all mercury deposited in the U.S. came from
domestic anthropogenic air emissions and that power
plants contributed, at that time, nearly one-third of
those emissions.‘ 65 Fed. Reg. at 79,827. EPA also
noted that large numbers of Americans ate fish
regularly, id. at 79,829, that forty states had imposed
fish consumption advisories based on mercury
contamination, id. at 79,827, and that many women of
childbearing age were already exposed to dangerous
levels of methylmercury, id. at 79,829-30. Specifically,
EPA estimated that seven percent of women of child-
bearing age were exposed to methylmercury at a level
capable of causing adverse effects in a developing fetus
and one percent of those women were exposed to three
to four times that level. Jd. at 79,829-30.

In 2005, however, EPA reversed course. It
purported to remove power plants from the Section 112

* In its 2011 proposal of the MATS Rule, EPA noted that power
plants’ 1999 share had risen to forty-three percent based on
updated emissions data. 76 Fed. Reg. at 25,002, n.57.

7

list of source categories and, instead, to regulate
existing power plant mercury emissions under Clean
Air Act Section 111(d). 70 Fed. Reg. 15,994, 16,032
(Mar. 29, 2005). Many of the undersigned states and
local governments challenged those actions as unlawful
under the statute and likely to result in significantly
greater emissions of mercury than a rule issued under
Section 112. In 2008, the D.C. Circuit vacated EPA’s
delisting of power plants because EPA had failed to
comply with Section 112(cX9), which specifically
prohibits EPA from removing listed sources unless it
finds that the emissions from no individual source in
the category will “exceed a level which is adequate to
protect public health with an ample margin of safety”
or result in any “adverse environmental effect.” 42
U.S.C. § 7412(c)(9)(BXii); New Jersey v. EPA, 517 F.3d
574, 582-83 (D.C. Cir. 2008). EPA made no such
findings, New Jersey, 517 F.3d at 583, and indeed it
could not have made them, given the significant health
and environmental risks posed by power plant
emissions.

In 2012, EPA reaffirmed its 2000 listing
determination and issued the MATS Rule. See 77 Fed.
Reg. at 9,310-11, 9,366-76. By that time, all fifty states
had established fish consumption advisories related to
mercury contamination and many states had moved
forward to control mercury emissions within their own
borders, including by enacting rigorous mercury
emission limits on power plants. See EPA, 2011
National Listing of Fish Advisories, at 4-6, EPA-820-F-

8

13-058 (2013);° Nat'l Ass’n of Clean Air Agencies,
Cmts., Proposed MATS Rule (2011) (NACAA Cmts.),
Attach. 1.° In addition, to address widespread mercury
surface water contamination, seven northeastern states
began to implement a regional mercury “total
maximum daily load,” pursuant to the Clean Water
Act, 33 U.S.C. § 1313(d)(1) (requiring development of
total maximum daily loads for impaired waters). State
regulations standing alone, however, have proven
ineffective in addressing the cross-berder impacts of
power plant mercury emissions. See Northeast TMDL,
supra note 1, at 44 (concluding that EPA action to
“implement significant reductions from upwind out-of-
region sources, primarily coal-fired power plants”
would be necessary to return fish methylmercury
concentrations to safe levels).

In its 2012 determination, EPA explicitly confirmed
its 2000 finding that regulation of power plants was
“appropriate and necessary” based on the record before
it in 2000, as well as on additional technical analyses.
77 Fed. Reg. at 9,310-11, 9,362-64. In particular, EPA
completed a peer-reviewed national-scale mercury risk
assessment focused on those populations that eat a
large amount of self-caught, freshwater fish. Jd. at
9,311, 9,365-66. That study showed that twenty-nine
percent of the 3,140 modeled watersheds have
populations at risk of exceeding safe mercury levels

* Available at bttp//water.epa.gov/scitech/swguidance/fishshellfish
/fishadvisories/loader.cfm?csModule=security/getfile& PageI D=6
85927 (last visited Oct. 8, 2014).

° Available at http://www.regulations.gov (search for “EPA-HQ-
OAR-2009-0234-17620”).

9

due, in part, to mercury emissions from power plants.
Id. at 9,311, 9,339, 9,362, 9,366. Further, in ten
percent of the watersheds studied, power plant
emissions alone lead to exceedances of safe mercury
levels, a condition EPA found “unacceptable.” Jd. at
9363, 9366. EPA also completed a peer-reviewed
inhalation study that found that emissions of nickel
and chromium from six of sixteen modeled power
plants would pose lifetime cancer risks exceeding the
benchmark level for delisting sources of carcinogenic
hazardous air pollutants under Section 112(c)(9)(B)(i).
Id. at 9,319.

Moreover, EPA found that power plants remained
one of the Nation’s most significant sources of
hazardous air pollutants and the largest single source
of anthropogenic mercury emissions—having increased
their share to fifty percent of total U.S. mercury
emissions in 2005. Id. at 9,310. Indeed, in the absence
of the MATS Rule, EPA projects power plants will emit
nearly six times more mercury than the next largest
source category by 2016, even after application of other
control programs required by the Clean Air Act. 76
Fed. Reg. at 24,976, 25,002, Table 3 (May 3, 2011).’
Power plants’ proportional share of the Nation’s
mercury emissions has grown as other sources have
been required to limit their mercury emissions by
complying with MACT standards set by EPA under

‘In its final rule, EPA revised downward the projected power plant
mercury emissions from 29 tons to 27 tons based on additional
reductions in mercury emissions from the Cross-State Air

Pollution Rule, 76 Fed. Reg. 48,208 (Aug. 8, 2011). 77 Fed. Reg. at
9,338.

10

Section 112.° Power plants are also a significant source
of many other hazardous metals and the Nation’s
largest source of acid gases, which can cause chronic
and acute respiratory damage, especially in children,
and contribute to the acidification of our Nation’s
waterbodies. 77 Fed. Reg. at 9,310, 9,363; 76 Fed. Reg.
at 25,004, 25,005, Table 4, 25,006, Table 5, 25,013,
25,016.

In light of that record, EPA concluded that it was
“appropriate and necessary” to regulate power plants
based on the public health and environmental hazards
posed by their emissions of mercury and other
hazardous air pollutants, and it promulgated MACT
standards for power plant emissions of those
pollutants. See 77 Fed. Reg. at 9,310-11, 9,367-71. In
reaching that conclusion, EPA reasonably found it
would not be appropriate to consider costs at the point
of its threshold determination “whether to regulate
[power plants] under section 112” because, among other
things, “there is nothing in [Section 112(n)(1)(A)] that
compels EPA to consider costs.” 77 Fed. Reg. at 9,327.

Numerous parties, including Petitioners, challenged
EPA’s interpretation and application of the terms
“appropriate” and “necessary” and its decision to

* See id.; 75 Fed. Reg. 15,608 (Mar. 21, 2011) (industrial,
commercial, institutional boilers, and process heaters); 76 Fed.
Reg. 9,450 (Feb. 17, 2011) (gold mine ore processing and
production); 73 Fed. Reg. 226 (Jan. 2, 2008) (iron and steel
foundries); 72 Fed. Reg. 74,088 (Dec. 28, 2007) (electric arc furnace
steelmaking facilities); 71 Fed. Reg. 76,518 (Dec. 20, 2006)
(Portland cement manufacturing industry); 70 Fed. Reg. 59,402
(Oct. 12, 2005) (hazardous waste combustors); 68 Fed. Reg. 7,928
(Dec. 19, 2003) (mercury cel! chlor-alkali plants).

11

regulate power plants using MACT standards. On
April 15, 2014, in a per curiam opinion, the D.C.
Circuit upheld the MATS Rule, dismissed one petition,
and denied all of the remaining petitions. Judge
Kavanaugh dissented, in part, opining that EPA should
have considered costs when deciding whether to
regulate power plants under Section 112.

REASONS FOR DENYING THE PETITIONS

The D.C. Circuit correctly afforded Chevron
deference to EPA’s reasonable interpretation that it
was not required to consider costs for purposes of its
threshold determination whether to regulate power
plant hazardous air pollution under Section
112(n)(1A). That decision is fully consistent with this
Court’s precedent. The plain language of Section
112(n)(1A), statutory context, and legislative history
demonstrate that Congress intended EPA to regulate
hazardous air pollutants emitted by power plants
under Section 112 if EPA found it was “appropriate and
necessary” to do so based on the Utility Study and
taking into account the effect of other Clean Air Act
provisions on controlling that pollution. The D.C.
Circuit correctly found that Congress included no
requirement to consider costs in Section 112(n)(1)(A)
and that EPA’s decision not to consider costs in
determining whether to regulate power plants under
Section 112 was a permissible one.

Further, Section 112(n)(1)(A) concerns a one-time
determination by EPA whether to regulate hazardous
air pollution from power plants. The “appropriate and
necessary” standard provided by Congress to guide
EPA’s determination applies to no other EPA
determinations under the Clean Air Act, and the

12

decision below is therefore one of limited applicability.
That decision neither precludes EPA from nor requires
EPA to consider costs in any other Clean Air Act
rulemaking, but rather properly resolves the question
whether costs must be considered in this particular
rulemaking on the basis of the unique statutory
language in Section 112(n)(1)(A) and the relevant
statutory history and context.

Finally, no practical concerns warrant this Court’s
review. Several states have implemented mercury
control standards more rigorous than those set forth in
the MATS Rule, demonstrating that the Rule’s
emissions reduction requirements are achievable, cost-
effective control technologies are available, and
compliance with such standards causes no adverse
effects on electric system reliability.

I. The D.C. Circuit’s Ruling That EPA Was
Not Required to Consider Costs in Making
Its Threshold Determination Whether to
Regulate Hazardous Air Pollutants from
Power Plants Under Section 112 of the Act
Is Fully Consistent With this Court’s
Precedent.

The D.C. Circuit’s ruling that EPA permissibly
chose not to consider costs for purposes of its threshold
determination whether to regulate hazardous air
pollutants emitted by power plants falls squarely
within this Court’s precedent. See, e.g., Whitman v.
American Trucking Associations, Inc., 531 U.S. 457,
467-71 (2001) (affirming EPA decision not to consider
costs when setting National Ambient Air Quality
Standards (NAAQS) where statute did not expressly
require costs to be considered); Entergy Corp. v.

13

Riverkeeper, Inc., 556 U.S. 208, 217-18 (2009) (EPA’s
interpretation that the Clean Water Act’s “best
technology available” standard permits consideration
of a technology’s costs “governs if it is a reasonable
interpretation of the statute—not necessarily the only
possible interpretation, nor even the interpretation
deemed most reasonable by the courts”) (emphasis in
original); EPA v. EME Homer City Generation, L.P.,
134 S. Ct. 1584, 1603, 1610 (2014) (affording Chevron
deference to EPA’s “reasonable interpretation of
ambiguous statutory language,” and upholding EPA’s
determination to take the cost of pollution reduction
into account for purposes of allocating among upwind
states obligations to reduce pollution under the Clean
Air Act’s Good Neighbor Provision, 42 U.S.C.
§ 7410(a)(2)(D)(i)).

Here, applying Chevron, the only question is
whether EPA’s interpretation of Section 112(n)(1)(A) as
not requiring it to consider costs is reasonable, and the
D.C. Circuit correctly held that it is. The D.C. Circuit’s
decision does not preclude EPA from considering costs
in any other Clean Air Act rulemaking; rather, by
closely analyzing the statutory text and the context in
which the 1990 amendments were enacted, it rightly
follows Whitman, see Entergy Corp., 556 U.S. at 223
(noting that in Whitman, taken in context, statutory
silence was best interpreted as limiting agency
discretion), Entergy Corp., see id. at 222 (taken in
context, statutory silence “meant to convey nothing
more than a refusal to tie the agency’s hands as to
whether cost-benefit analysis should be used, and if so
to what degree”), and EME Homer City, 134 S. Ct.
1584, 1607 (2014) (“Jacking a dispositive statutory
instruction to guide it, EPA’s decision, we conclude, is

14

a ‘reasonable’ way of filling the ‘gap left open by
Congress.”). The decision creates no new bright line or
any rule regarding when costs may be considered by
EPA for purposes of Clean Air Act rulemaking, and it
cannot, since such questions turn on interpretations of
specific statutory language, and where appropriate,
legislative history and other record facts that shine
light on congressional intent and the reasonableness of
the agency interpretation. See Entergy Corp., 556 U.S.
at 222 (“under Chevron, that an agency is not required
to [consider costs] does not mean that an agency is not
permitted to do so.”) (emphasis in original).

In Whitman, this Court denied a similar attempt to
overturn EPA’s decision not to consider the costs of
implementation when setting NAAQS for the
protection of public health and welfare under Section
109 of the Clean Air Act. 531 U.S. at 464-471. In
rejecting the industry respondents’ interpretation of
the provision as allowing for consideration of costs,
Justice Scalia noted numerous provisions where, in
contrast to Section 109, Congress expressly authorized
cost consideration, stating “[w]e have therefore refused
to find implicit in ambiguous sections of the [Clean Air
Act] an authorization to consider costs that has
elsewhere, and so often, been expressly granted.” /d. at
467. Because respondents failed to show a clear
“textual commitment of authority to the EPA to
consider costs in setting NAAQS under § 109(b)(1),” id.
at 468, “[t]he text of § 109(b), interpreted in its
statutory and historical context and with appreciation
for its importance to the [Clean Air Act] as a whole,
unambiguously bar[red] cost considerations from the
NAAQS-setting process.” Jd. at 471.

15

Although, as the D.C. Circuit noted, the language of
Section 109 differs from the language of Section 112 at
issue here, Whitman teaches that the interpretation of
“appropriate and necessary” is context-dependent.
Looking to the surrounding words, the language of the
entire provision, and the “statutory and historical
context,” EPA’s decision not to consider costs for
purposes of its “appropriate and necessary”
determination was reasonable. /d. at 471; see also
Entergy Corp., 556 U.S. at 217-22; 223.

First, the plain language of Section 112(n)(1)A),
which nowhere mentions costs, leaves no doubt that
Congress intended EPA’s consideration of “hazards to
public health” in the Utility Study to be the touchstone
informing its decision whether it was “appropriate and
necessary” to regulate power plant hazardous air
pollutant emissions. Congress was aware of the public
health impacts of these highly toxic emissions and
granted broad authority to EPA in the 1990
Amendments to undertake whatever action was
“appropriate and necessary,” based on the results of the
Utility Study, to control those emissions to the extent
they would not be controlled under other Clean Air Act
provisions, regardless of cost.? As the D.C. Circuit

® Petitioners’ attempt to invoke this Court's recent decision in
Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2446 (2014)
for the proposition that EPA does not have the “power to revise
clear statutory terms,” UARG Pet. at 27, misses the mark. There,
EPA sought to change the statutory thresholds for triggering
permitting requirements under the Act’s Prevention of Significant
Deterioration and Title V programs to address the substantial
practical implementation problems that would have made it nearly
impossible to apply the statute’s relatively low tonnage thresholds
to greenhouses gases. Utility Air Regulatory Grp., 134 S. Ct. at

16

observed, Section 112(c)(9), governing delisting of
hazardous air pollutant source categories, provides
further support for EPA’s interpretation. See 42 U.S.C.
§ 7412(c)(9); NMA Pet. App. at 3la. The plain
language of that provision requiring EPA to consider
public health and environmental effects—not
costs—when making a delisting determination, id.,
further evidences Congress’s intent that costs should
not be a focus of EPA’s decision whether to list or delist
source categories.

Second, reading Section 112 as a whole, it is clear
that “Congress mentioned costs explicitly where it
intended EPA to consider them,” including in
subparagraph 112(n)(1B), which immediately follows
Section 112(n)(1)(A). See NMA Pet. App. at 24a (citing
provisions of Section 112 where costs are mentioned
expressly). Further, in contrast to Petitioners’ reading,
EPA’s decisions to consider costs in deciding the extent
of required pollution reductions from upwind states
under the Clean Air Act, as in EME Homer City, or of
setting national performance standards for cooling
water intake structures at power plants under the
Clean Water Act, as in Entergy Corp., are materially
different than EPA’s decision at issue here—whether to
regulate hazardous air pollutants from power plants at
all. Given that Congress did not require EPA to
consider costs in making the threshold determination

2437-38, 2442-44. Unlike the statutory provision at issue in Utility
Air Regulatory Group, Section 112(n\ 1A) was specifically crafted
by Congress to address hazardous air pollution from power plants
and EPA’s interpretation not to read a cost requirement into its
decision whether to regulate does nothing to change any aspect of
the express statutory language of Section 112.

17

whether to regulate power plant hazardous air
pollution under Section 112(n)(1)(A), exercising its
discretion to consider costs in determining the extent
of regulation, but not in determining whether to
regulate, is a reasonable choice for EPA to make, and
consistent with the overall statutory framework of
Section 112. See supra at pp. 3-4; 42 U.S.C.
§ 7412(d)\(2) (requiring EPA to consider costs for
purposes of beyond-the-floor standard setting for
hazardous air pollutant control).

Third, Section 112(n)(1)(A) addresses hazardous air
pollution. As the D.C. Circuit noted, EPA’s
interpretation of “appropriate and necessary” is
reasonable in light of the purpose of the 1990
Amendments, “which were aimed at remedying ‘the
slow pace of EPA’s regulation of {hazardous air
pollutants] following the initial passage of the [Clean
Air Act].” NMA Pet. App. at 26a (citing New Jersey,
517 F.3d at 578). The statutory and historical context
confirm the reasonableness of EPA’s interpretation of
Section 112(n\1)(A)—focusing on public health
impacts, not costs, at the threshold point of
determining whether to regulate—and the absence of
any conflict with this Court’s precedent.

Nevertheless, citing Utility Air Regulatory Group v.
EPA, 1348S. Ct. 2427, 2444 (2014), Petitioners urge this
Court to adopt a new exception to Chevron that affords
less deference to agencies in cases involving “critical
impacts on American industry,” UARG Pet. at 33, 35,
and substantial regulatory costs, see NMA Pet. at 15-
16, 22 (questioning EPA’s exercise of discretion in
connection with adoption of “massively costly
regulations for virtually no return”). Petitioner UARG

18

asks this Court to inject a judge-made cost-benefit
analysis requirement into agency rulemaking wherever
Congress has not expressly precluded cost
considerations, see UARG Pet. at 30—a result that
would subvert Congressional intent and raise
significant separation of powers concerns. Such a new
standard of review for agency rulemaking would
significantly diminish agency discretion; in instances
where Congress has not clearly precluded cost
considerations, agency rulemaking to implement a
regulatory statute that does not make cost
consideration a central factor would be deemed
unreasonable per se. See id. Setting aside Petitioners’
inaccurate characterization of EPA’s regulatory
impacts analysis of the costs and benefits of the MATS
Rule, neither this Court’s precedent, nor that of any
court of appeals, recognizes any less deferential
standard of review for agency action that involves
costly regulation.

Finally, Petitioners’ argument that Congress could
not have intended for EPA to regulate power plants
under Section 112 without giving any consideration to
costs rests on a “false premise,” as the D.C. Circuit
found. NMA Pet. App. at 27a. Petitioners’
characterization of the decision below as “authorizing
the Agency to ignore the costs of its regulations,” NMA
Pet. at 6, is simply inaccurate. Noting that Congress
expressly required EPA to take costs into account for
beyond-the-floor standards, the D.C. Circuit held that
“fhjere, 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.” NMA Pet. App. at 27a. The

19

D.C. Circuit correctly observed, as well, that, as a
practical matter, “even for MACT floors, costs are
reflected to some extent because floors correspond (by
definition) to standards that better-performing [power
plants] have already achieved, presumably in a cost
efficient manner.” Jd. (emphasis in original).

Petitioners’ proper recourse lies with Congress, not
this Court. EPA permissibly concluded that, in
determining whether regulation is “appropriate and
necessary,” it should focus its attention on factors
relating to public health hazards, and not industry’s
objections that emissions controls are costly, properly
putting “the horse before the cart, and not the other
way around.” 7d. at 29a.

Il. EPA’s Interpretation of Section 112(m)(1)(A)
Has No Precedential Importance Because
the Provision Applies Only to the Agency’s
Threshold Determination to Regulate
Power Plant Hazardous Air Pollution.

This case does not have the “enormous precedential!
importance for administrative law” alleged by
Petitioner NMA, NMA Pet. at 6, for the simple reason
that the statutory language in question applies only to
EPA’s threshold decision to regulate power plant
hazardous air pollution, and to no other decision. The
“appropriate and necessary” standard is unique to
Section 112’s treatment of power plants, and does not
apply to EPA’s regulation of other sources of hazardous
air pollutants under Section 112, or any other type of
air pollutant emitted by power plants or any other
source.

20

As Petitioners recognize, Section 112(n)(1)A) was
included in the 1990 Clean Air Act amendments
specifically and exclusively to address power plant
hazardous air pollutant emissions. See Michigan Pet.
at 3 (“Congress has chosen to treat certain sources of
hazardous air pollutants differently than others.”); id.
at 4 (“Congress has chosen to treat [power plants] very
differently from other major sources.”); UARG Pet. at
8 (“Congress in 42 U.S.C. § 7412(n)(1)(A) required that
EPA treat [power plants] differently from every other
source category regulated under § 7412”); NMA Pet. at
7 (“Congress treated electric generators differently
from other source categories of [hazardous air
pollutant] emissions”).

Petitioners’ own repeated assertion that Section
112(n)(1)A) treated power plants “very differently”
belies their argument that the decision below will open
the floodgates to unbridled “executive branch
lawmaking.” UARG Pet. at 26. Far from constituting
a sea change in administrative law, because of the
highly specific nature of the legislation, and the
particular facts and long history surrounding Clean Air
Act regulation of power plant pollution, the decision
below is one of limited applicability. This is a
straightforward administrative law case involving the
interpretation of a single provision of the Clean Air
Act—Section 112(n\ 1)(A) that will apply once, to one
class of pollutants—hazardous air pollutants—and one
source category—power plants. The D.C. Circuit
properly applied this Court’s Chevron analysis to
support its holding that EPA’s interpretation of that
unique provision—as not requiring EPA to consider
costs for purposes of its “appropriate and necessary”

21

determination—constituted a reasonable exercise of its
agency discretion.

Ill. States’ Experience Shows That, as a
Practical Matter, the MATS Rule Is
Achievable, Cost-Effective Contro)
Technologies Are Readily Available, and
There Is No Real-World Impediment to
Compliance.

Petitioners’ contention that the MATS Rule will
impose unreasonable burdens on industry or electricity
consumers, see, e.g., Michigan Pet. at 11-12, 18; UARG
Pet. at 33-34, is contradicted by states’ experience to
date. Power plants in several states already comply
with standards that are equally stringent as or even
more stringent than the MATS Rule, using long-
established technologies, and they have done so
without sacrificing electric system reliability. Indeed,
it is the actual performance of power plants employing
economically viable controls—such as those located in
states with already established hazardous air pollutant
standards—that EPA relied on in setting the MACT
floor standard in the MATS Rule, as required by
Section 112(d)(3).

Commenting in 2011 on EPA’s proposed standards,
Petitioner Michigan’s Department of Environmental
Quality (DEQ) represented that, with respect to
Michigan’s coal-fired units, “[wlith the right
combination of emission controls, the proposed mercury
emission limit is achievable by existing Michigan
units.” Michigan DEQ, Comments, Proposed MATS
Rule (2011) (Michigan Cmts.), at 2, available at
http://www.regulations.gov (search for “EPA-HQ-OAR-

22

2009-0234-18426”).*°*' Michigan DEQ cited a number
of available pollution control technologies, including
fabric filter baghouses and wet and/or dry scrubber
systems, then being installed on Michigan power
plants, which “can be used to meet the proposed
mercury emission limit.” Id.

Michigan did not raise any concerns with respect to
either the cost of mercury control technology for
existing power plants or impacts on electric system
reliability in connection with compliance with the 2011
proposed rule (Proposed Rule). Indeed, as Michigan
DEQ noted, the Michigan Public Service Commission,
along with “a stakeholder workgroup consisting of
industry, environmental groups, and government
agencies” participated in the “inteiise rulemaking
process” that led to the development of Michigan’s own
standard, which, at that time, required as one of three
compliance options a “minimum of 90% reduction from
baseline input mercury levels or an output-based
mercury emission standard of 0.008 [lb/GW-hr]” for

'° Notably, EPA’s 2011 proposed standards were more stringent
than the limits adopted by EPA in the Final Rule. Compare 76
Fed. Reg. at 25,027, Table 10 (proposing in 2011, 0.008 lb per
gigawatt-hour (lb/GW-hr) or 1.0 lb per trillion British thermal
units (Ib/TBtu)), with 77 Fed. Reg. at 9,367, Table 3 (adopting in
2012, 0.013 Ib/GWh or 1.2 Ib/TBtu).

" In fact, in its comments, Michigan voiced concern that the then-
proposed EPA mercury emission limit of 0.040 lb/GWh for a
subcategory of coal-fired power plants designed to burn low rank
virgin coal was not stringent enough given, among other things,
the serious public health concerns associated with mercury
emissions and the ready availability of control technology.
Michigan Cmts., supra, at 2.

23

existing coal-fired power plants. Jd. at 2-3 (internal
citations omitted); see also MICH. ADMIN. CODE r.
336.2503(1)(a)-(b) (2009).

At least fourteen other states across the Nation
have enacted controls on power plant mercury
emissions, most of which are currently in effect.’
Nearly every state that has set a rate-based standard
has imposed one more stringent than the MATS Rule,
and several state standards are twice as stringent as
the MATS Rule mercury standard of 1.2 lb/TBtu or

’% In 2013, Michigan amended its regulations, which required
mercury controls by 2015, to exempt power plants subject to the
MATS Rule, and provided that the regulation as a whole will be
automatically repealed once there is “a final judgment or order
from which no further appeal or review is taken or available in
White Stallion v[.] EPA, No. 12-1100 (D.C. Circuit) upholding the
provisions of the [MATS Rule] relative to emissions of mercury.”
MICH. ADMIN. CODE r. 336.2502a.

'§ See 5 COLO. CODE REGS. § 1001-8:B. VIII (compliance with first
phase required by Jan. 1. 2012); CONN. GEN. STAT. § 22a-199
(compliance required by Jul. 1, 2008); DEL. ADMIN. CODE, tit. 7,
§ 1146-6 (compliance with first phase required by Jan. 1, 2009);
ILL. ADMIN. CODE tit. 35, § 225.230 (compliance required by Jul. 1,
2009); Mb. REGS. CODE tit. 26, § 11.27.03.D (compliance with first
phase required by Jan. 1, 2010); MASS. REGS. CODE tit. 310, § 7.29
(compliance with first phase required by Jan. 1, 2008); MINN. R.
7011.0561 (compliance with first phase required by Jan. 1, 2018);
MONT. ADMIN. R. 17.8.771 (compliance required by Jan. 1, 2010);
N.H. REV. STAT. ANN. § 125-O:11-18 (compliance required by Jul.
1, 2013); N.J. ADMIN. CODE § 7:27-27.7 (compliance required by
Dec. 15, 2007); N.Y. Comp. CODES R. & REGS. tit. 6, § 246.6
(compliance with first phase required by Jan. 1, 2010); 1I5A N.C.
ADMIN. CODE 2D.2511 (compliance required by Dec. 31, 2017); Or.
ADMIN. R. 340-228-0606 (compliance required by Jul. 1, 2012); Wis.
ADMIN. CODE NR § 446.13 (compliance required by Apr. 16, 2016).

24

0.013 lb/GWh, see 77 Fed. Reg. at 9,367, Table 3."
Compliance with Connecticut, Massachusetts, and New
Jersey's standards was required three to four years
prior to EPA’s 2011 proposal of the MATS Rule. By
that time, the affected power plants within those states
had timely and consistently met the mercury limits
with control technologies widely used throughout the
industry, and with no adverse effects on electric system
reliability.”

Similarly, the experience of the states in
implementing reductions in sulfur dioxide and nitrogen
oxides required by EPA’s 2005 Clean Air Interstate

'* See CONN. GEN. STAT. § 22a-199(b\X 1) (0.6 lb/TBtu); DEL. ADMIN.
CODE, tit. 7, § 1146-6.2 (0.6 lb/TBtu); ILL. ADMIN. CODE tit. 35,
§ 225.230(a) (0.008 lb/GW-hr); MASS. REGS. CODE tit. 310,
§ 7.2%5)ak3Kf) (0.0025 lb/GW-hr); MINN. R. 7011.0561 (0.8
lb/TBtu); N.J. ADMIN. CODE § 7:27-27.7(a) (3.00 mg/MWh
(equivalent to 0.66 lb/TBtu)); N.Y. Comp. CODES R. & REGS. tit. 6,
§ 246.6(a) (0.6 Ib/TBtu); OR. ADMIN. R. 340-228-0606(1) (0.6
lb/TBtu); Wis. ADMIN. CODE NR § 446.13(1) (0.008 Ib/GW-hr).

‘© See Connecticut Dep't of Energy & Envtl. Protection, Comments,
Proposed MATS Rule (2011), Technical Cmts. (Connecticut Cmts.),
at 1-2, available at http://www.regulations.gov (search for “EPA-
HQ-OAR-2009-0234-16513"); Massachusetts Dep’t of Envtl.
Protection, Comments, Proposed MATS Rule (2011)
(Massachusetts Cmts.), at 7. available at
http://www.regulations. gov (search for “EPA-HQ-OAR-2009-0234-
18039"); New Jersey Dep't of Envtl. Protection, Comments,
Proposed MATS Rule (2011) (New Jersey Cmts.), at 1, 5, available
at http://www.regulations.gov (search for “EPA-HQ-OAR-2009-
0234-18444”); NACAA Cmts., supra note 6, at 7; Northeast States
for Coordinated Air Use Management, Comments, Proposed MATS
Rule (2011) (NESCAUM Cmts.), at 5-8, available at
http//www.regulations. gov (search for “EPA-HQ-OAR-2009-0234-
17843”).

25

Rule’® and 1998 NOx SIP Call, 63 Fed. Reg. 57,356
(Oct. 27. 1998), demonstrates that the MATS Rule can
timely be implemented without disrupting electric
system reliability. NACAA Cmts., supra note 6, at 7.
Compliance with those separate rules has involved
installation of control technologies similar to those that
will be used to meet the mercury and acid gas limits
required under the MATS Rule. Z/d.

For these reasons, severa! states—like
Michigan—reported in their comments on the Proposed
Rule that the coal-fired power plants within their
borders would be able to meet the proposed mercury
standard with technologies already in place.’’ Further,
the National Association of Clean Air Agencies
(NACAA), and several individual states, urged EPA to
go further, advocating for a lower mercury limit in
their comments on the Proposed Rule.” NACAA

The Clean Air Interstate Rule, 70 Fed. Reg. 25,162 (May 12,
2005), was initially vacated by North Carolina v. EPA, 531 F.3d
896, 921 (D.C. Cir. 2008), but left in place on rehearing, North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), and
subsequently replaced by the Cross-State Air Pollution Rule, 76
Fed. Reg. 48,208 (Aug. 8, 2011), upheld by this Court in EPA uv.
EME Homer City, 134 S. Ct. 1584 (2014). Both rules require
reductions in sulfur dioxide and nitrogen oxides emissions.

’ Connecticut Cmts., supra note 15, at 1-2; Massachusetts Cmts.,
supra note 15, at 7; New Jersey Cmts., supra note 15, at 1;
NESCAUM Cmts., supra note 15, at 8.

'® Massachusetts Cmts., supra note 15, at 2, 7; NACAA Cmts.,
supra note 6, at 9; New Jersey Cmts., supra note 15, at 5; New
York State Dep’t of Envtl. Conservation, Comments, Proposed
MATS Rule (2011), Cvr., at 2, available at http:/Awww.regulations.
gov (search for “EPA-HQ-OAR-2009-0234- 17796”).

26

similarly pressed for consideration of higher sulfur
dioxide removal efficiencies in determining the MACT
standard for acid gases. NACAA Cmts., supra note 6,
at 9.

Petitioners’ exaggerated claims of widespread
adverse effects on industry and consumers are
contradicted by the actual experience of several states
that have already imposed standards at least as strict
as the MATS Rule. Given the record of successful
implementation of state standards more rigorous than
the MATS Rule, as well as state implementation of
other EPA rules requiring technological controls
similar to those required by the Rule, no practical
considerations warrant this Court’s review.

CONCLUSION

The petitions for writs of certiorari should be

denied.
Respectfully submi‘ted,

MARTHA COAKLEY
Attorney General of Massachusetts
MELISSA HOFFER

Counsel of Record
TRACY L. TRIPLETT
Assistant Attorneys General
Environmental Protection Division
One Ashburton Place, 18” Floor
Boston, MA 02108
617-963-2322
melissa. hoffer@state.ma.us

Counsel for Respondent States and
Local Governments

Dated: October 15, 2014

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0332%3A07. Public record. Not legal advice.