Opposition Brief — Nat'l Mining Ass'n v. Envtl. Prot. Agency, 135 S. Ct. 703 (2014) (No. 14-49)
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Nos. 14-46, 14-47 and 14-49
TT TOT Nl________________
In the Supreme Court of the United States
OFFICE OF THE CLERK
i
STATE OF MICHIGAN, ET AL., PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
UTILITY AIR REGULATORY GROUP, PETITIONER
Vv.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
NATIONAL MINING ASSOCIATION, PETITIONER
Vv.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
SAM HIRSCH
AVI GARBOW Acting Assistant Attorney
General Counsel General
WENDY L. BLAKE ERIC G. HOSTETLER
PAUL R. VERSACE Attorney
* z — : Department of Justice
United States Environmental Washington, D.C. 20530-0001
ton Agency SupremeCtBriefs@uadoj.gov
Washington, D.C. 20460 (202) 514-2217
QUESTIONS PRESENTED
1. Whether the Environmental Protection Agency
(EPA) reasonably construed 42 U.S.C. 7412 as direct-
ing it to consider costs when establishing the appro-
priate level of any regulation of hazardous air pollu-
tant emissions from power plants, but not when decid-
ing whether to regulate those plants in the first place.
2. Whether the EPA reasonably concluded that its
decision to list power plants among the source catego-
ries to be regulated under 42 U.S.C. 7412(d) required
it to promulgate emission standards for all listed haz-
ardous air pollutants emitted by such plants.
(I)
os
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Cases:
American Textile Mfrs. Inst., Inc. v. Donovan,
a a cetitininaienieeieeniieiiinniinnin 17
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837
I crcateninstiiteiniitaneniatincinitiniiiainaitiaanmnaititmninannniiinn 2, 14, 15, 17
EPAv. EME Homer City Generation, L.P.,
Gk, Fa eticcceninnennimes 17
EPA v. New Jersey, 555 U.S. 1162 (2009) ..........ccccccscsseceesees 7
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208
TTI niniasecsiiesceitttcnprhrihinetoenrtnepredepiueieamntnibaiaieesinibataneansmnimmmmete 17
General Motors Corp. v. United States,
a I crsccinsctneeeeantretenintestenmnnsiccinnemnenitial 2B
National Lime Ass'n v. EPA, 233 F.3d 625
a: Gea einnesnsncnicicnnnnmninummnnenieaninianeiemaes 9, 15, 30
New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008),
cert. dismissed, 555 U.S. 1162, and cert. denied,
es Se Ie ictrcenrcinenstnncnresiiniimeapeerncmine 7,15
Union Elec. Co. v. EPA, 427 U.S. 246 (1976)..................000. 23
Utility Air Regulatory Grp. v. New Jersey,
Se iecrrannitcersnemninereneninninsmninicnminemeli 7
Whitman v. American Trucking Ass'ns,
Ey ee 14, 17, 22, 23, 24
(IIT)
IV
Statutes, regulations and rule: Page
Clean Air Act Amendments of 1990,
Pub. L. No. 101-649, 104 Stat. 2399... cee ceceeeeeee 2
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Statutes, regulations and rule—Continued: Page
PE CR Ee 23
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gE A ee 22, 23
TB 23
CA 5
PR eS passim
I 5, 22, 23
Mee 5
Co i 22, 23
Exec. Order No. 13,563, 3 C.F.R. 215 (2012) .............cccc0ees 12
oe 4
Been, COR BR. GG ccececennnconecovsnessssnsscsnssensnssrensensssasausnssnsscssssensseseneess 7
Miscellaneous:
1 EPA’s Responses to Public Comments on EPA's
National Emissions Standards for Hazardous Air
Pollutants from Coal- and Oil-Fired Electric Utility
Steam Generating Units (Dec. 2011), http://www.
epa.gov/ttn/atw/utility/mats_rte_chapters
_foreword-1-2-3-4_121611.pdf (last visited Oct. 13,
SS 10, 25
65 Fed. Reg. (Dec. 20, 2000):
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70 Fed. Reg.:
me, BEGG Cia BD, BD cececccccswcevesscensnsssessevensnesesenennemsesensin 7
DP. 28,006 (May 18, 2006) ...............-cecscecsecseeesessseneneneneesenesees 7
VI
Miscellaneous—Continued: Page
76 Fed. Reg. (May 3, 2011):
5 en ee 8
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a 31, 32
77 Fed. Reg. (Feb. 16, 2012)
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Vil
Miscellaneous—Continued:
Page
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Aaa eieoniteiincarsihisiscehiniiiciaileiseneiaeiidenenitcamisaeanameent 11
ESE RSA Scere een 12, 13, 28
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a I cvsescnnsevenscnnvessemsenionsninestnennmiantnsnstsceneinmnnivecsonaasemes 28
i SEP crnceenciienennteenecscomntantenmemanseatiasiiinaiisinaiiacineiaasaticiiamens 12
US. EPA, Regulatory Impact Analysis for the
Final Mercury and Air Toxics Standards,
http:/www.epa.gov/mats/actions. htm]
Re ee Sy WN A nerinernserestncsinntocncnsisinsssnaniatamnaieanissnmsias 12
In the Supreme Court of the Anited States
No. 14-46
STATE OF MICHIGAN, ET AL., PETITIONERS
vz
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 14-47
UTILITY AIR REGULATORY GROUP, PETITIONER
Vv.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 14-49
NATIONAL MINING ASSOCIATION, PETITIONER
Vv.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
(1)
2
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-
98a) is reported at 748 F.3d 1222.’ The final rule prom-
ulgated by the Environmental Protection Agency
(EPA) (excerpted at Pet. App. 196a-1160a) is pub-
lished at 77 Fed. Reg. 9304.
JURISDICTION
The judgment of the court of appeals (Pet. App.
99a-100a) was entered on April 15, 2014. The three
petitions for a writ of certiorari were filed on July 14,
2014. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
This case involves the EPA’s determination that it
was “appropriate and necessary” to regulate power-
plant emissions under 42 U.S.C. 7412(n)(1)(A). The
EPA declined to consider costs when making that
determination, concluding that costs should instead be
considered when setting the appropriate standards for
hazardous air pollutant emissions from such plants
under Section 7412(d). The court of appeals upheld
the EPA’s interpretation of the statute as “clearly
permissible” under Chevron U.S.A. Inc. v. NRDC, 467
U.S. 837 (1984). Pet. App. 25a.
1. a. In the Clean Air Act Amendments of 1990,
Pub. L. No. 101-549, 104 Stat. 2399, Congress estab-
lished a list of more than 180 hazardous air pollutants.
It directed the EPA to review and revise that list
periodically to add other pollutants that present ad-
' Citations to “Pet. App.” are to the appendix to the petition for a
writ of certiorari filed by the National Mining Association (NMA)
in No. 14-49.
3
verse human health or environmental effects. 42
U.S.C. 7412(b).
Congress also directed the EPA to publish and oc-
casionally revise “a list of all categories and subcate-
gories of major sources” of the listed pollutants. 42
U.S.C. 7412(c)(1). A “major source” is any stationary
source or group of stationary sources at a single loca-
tion and under common control that emits or has the
potential to emit 10 tons per year or more of any sin-
gle hazardous air pollutant, or 25 tons per year or
more of any combination of hazardous air pollutants.
42 U.S.C. 7412(a)(1). The statute also requires the
EPA to list any category or subcategory of “area
sources”—defined to include all stationary sources of
hazardous air pollution that are not “major sources”—
that the agency concludes “presents a threat of ad-
verse effects to human health or the environment
* * * warranting regulation under this section.”
42 U.S.C. 7412(a)(2), (c)(1) and (3).
The listing of a source category that includes major
sources triggers a statutory obligation for the EPA to
promulgate emission standards ffor all listed
hazardous air pollutants emitted by sources within
that category. 42 U.S.C. 7412(d)(1). Those standards
must “require the maximum degree of reduction in
emissions of * * * hazardous air pollutants” that the
EPA determines is achievable, taking into account
factors such as cost, energy requirements, and non-
air-quality health and environmental impacts. 42
U.S.C. 7412(d)(1) and (2). In general, for existing
sources, the “maximum degree of reduction in
emissions” must be at least as stringent as the
average emission limitation achieved by the best-
performing 12% of existing sources. 42 U.S.C.
4
7412(d)(3)(A); see 42 U.S.C. 7412(d)(3)(B) (requiring
the EPA to set standards that are at least as stringent
as the average emission limitations of the five best
performers for source categories including fewer than
30 sources). The EPA refers to the minimum
stringency standards as “floor” standards, and to
more stringent standards as “beyond-the-floor”
standards. See 77 Fed. Reg. at 9307. After the
enactment of the Clean Air Act Amendments of 1990,
the EPA promulgated Section 7412 emission
standards for scores of source categories, covering the
full range of industries in the United States. See 40
C.F.R. Pt. 63.
Section 7412 authorizes the EPA to delete particu-
lar source categories from the list, but only in narrow-
ly defined circumstances. Such delisting is permissi-
ble if the agency determines that emissions from no
source in the category (1) are likely to cause a lifetime
risk of cancer greater than one in a million to the
individual in the population who is most exposed to
those emissions, or (2) “exceed a level which is ade-
quate to protect public health with an ample margin of
safety and no adverse environmental effect will result
from emissions from any source.” 42 U.S.C.
7412(c)(9)(B){i) anu (ii). Section 7412 does not author-
ize the EPA to delete sources from the list based on
the agency’s view that the costs associated with regu-
lating hazardous air pollutant emissions from that
source exceed the benefits of doing so or are other-
wise too high.
b. This case involves one source category of air
pollutants—coal- and oil-fired “electric utility steam
generating units,” ie., power plants. See 42 U.S.C.
7412(a)(8). The Clean Air Act Amendments of 1990
5
impose a separate listing requirement that must be
satisfied before such plants may be regulated under
the provisions set forth above. See 42 TI.S.C.
7412(n)(1)(A). Congress required the EPA to per-
form, within three years of the 1990 amendments to
the Clean Air Act, “a study of the hazards to public
health reasonably anticipated to occur as a result of
emissions” of listed hazardous air pollutants from
power plants, “after imposition of the requirements”
of the Clean Air Act. Jbid. Section 7412(n)(1)(A)
further provides that the EPA “shall regulate [power
plants] under [Section 7412] if [it] finds such regula-
tion is appropriate and necessary after considering
the results of the study.” Jbid.*
2. a. In December 2000, after completing the
study of power-plant emissions required by Section
7412(n)(1)(A), the EPA determined that regulation of
coal- and oil-fired power plants under Section 7412
was “appropriate and necessary.” 65 Fed. Reg.
79,823, 79,825 (Dec. 20, 2000). Based on that finding,
the EPA added coal- and oil-fired power plants to the
list of source categories to be regulated under Section
7412. Id. at 79,831.
* Section 7412(n\1) also required two additional studies relating
to power plants: (1) an EPA study of the “health and environmen-
tal effects” of mercury emissions from power plants and other
sources, and of the “technologies which are available to contro!
[mercury] emissions, and the costs of such technologies,” to be
completed within four years, 42 U.S.C. 7412(n\1)(B); and (2) a
National Institute of Environmental Health Sciences study to
determine the threshold leve] of mercury exposure below which
adverse human health effects are not expected to occur, including
for “sensitive populations,” to be completed within three years, 42
U.S.C. 7412(n)(1)(C).
6
As part of its 2000 finding, the EPA determined
that power plants are the largest source of domestic
anthropogenic mercury emissions and that “[mJercury
is highly toxic, persistent, and bioaccumulates in food
chains.” 65 Fed. Reg. at 79,827. The EPA found that
mercury emitted by power plants falls into bodies of
water and then becomes concentrated in the bodies of
predatory fish, which absorb the methylmercury con-
tained by their food sources. When humans eat these
contaminated fish, they too are exposed. /bid. The
methylmercury from the fish poses especially great
risk to children born to women who were exposed to
relatively high levels of methylmercury during preg-
nancy. /bid. The EPA explained that methylmercury
“readily passes * * * to the fetus and fetal brain,”
and that children exposed to methylmercury during
pregnancy have exhibited developmental! neurological
abnormalities and delays. Jd. at 79,829. The agency
further estimated that approximately seven percent of
American women of childbearing age—millions of
women, in other words—were being exposed to
methylmercury in amounts that exceed a health-
protective level. Jbid.
Although the EPA’s 2000 finding focused primarily
on the hazards posed by mercury emissions, the agen-
cy also found that the cancer-related risks posed by
several other metals emitted by power plants present-
ed a potential public health concern, and that acid gas
and dioxin emissions likewise warranted further eval-
uation. 65 Fed. Reg. at 79,827. The EPA also identi-
fied a number of available emission controls that are
effective at reducing power-plant mercury and other
hazardous air pollutant emissions and reducing public
health risks. Jd. at 79,830.
7
b. In 2005, the EPA attempted to reverse the 2000
determination and to remove power plants from the
Section 7412(c) list. 70 Fed. Reg. 15,994 (Mar. 29,
2005) (2005 Delisting Rule). At that time, the EPA
concluded that it was instead appropriate to regulate
power-plant mercury emissions through an alternative
statutory authority, 42 U.S.C. 7411. The EPA prom-
ulgated Section 7411 standards of performance for
mercury emissions in a related rulemaking. 70 Fed.
Reg. 28,606 (May 18, 2005).
Numerous parties petitioned for judicial review of
the 2005 Delisting Rule and the accompanying Section
7411 mercury emission standards. The D.C. Circuit
granted the petitions and vacated both rules. New
Jersey v. EPA, 517 F.3d 574 (2008). The court held
that the 2005 Delisting Rule “violated the [Act’s] plain
text” by failing to comply with the delisting require-
ments set forth in 42 U.S.C. 7412(c)(9). 517 F.3d at
581-583. The government filed, but later moved to
dismiss, a petition for a writ of certiorari seeking
review of the D.C. Circuit’s decision. See EPA v. New
Jersey, 555 U.S. 1162 (2009) (No. 08-512) (petition
filed Oct. 17, 2008; motion to dismiss filed Feb. 6,
2009). This Court dismissed the government’s petition
under Sup. Ct. Rule 46, see ibid., and it denied an
industry group’s petition for a writ of certiorari, Utili-
ty Air Regulatory Grp. v. New Jersey, 555 U.S. 1169
(2009) (No. 08-352).
3. As a result of the D.C. Circuit’s ruling in New
Jersey, power plants remained on the Section 7412(c)
* Section 7411 authorizes the EPA to establish “standards of
performance” for sources of air pollution, but that authority does
not extend to hazardous air pollutants that are listed and regulated
under Section 7412. 42 U.S.C. 7411(d\1).
8
list pursuant to the EPA’s 2000 listing decision. The
agency therefore was subject to a nondiscretionary
duty to promulgate Section 7412(d) emission stand-
ards for all hazardous air pollutants emitted by power
plants. See 42 U.S.C. 7412(c)(5) and (e) (requiring the
EPA to promulgate emission standards for hazardous
air pollutants emitted by listed source categories no
later than November 15, 1990, or within two years of
listing, whichever is later).
The EPA subsequently solicited public comments
on a proposed rule implementing that statutory com-
mand. See 76 Fed. Reg. 24,976 (May 3, 2011) (2011
Proposed Rule). As part of the proposed rule, the
EPA clarified its interpretation of Section
7412(n)(1)(A)’s directive to regulate power plants “if
[the EPA] finds such regulation is appropriate and
necessary.” See id. at 24,986-24,993.
The agency began by noting that Section
7412(n)(1)(A) itself “provides no clear standard to
govern EPA’s analysis,” and that the broad phrase
“appropriate and necessary” therefore “convey(s]
considerable discretion to the [EPA] in determining
what is appropriate and necessary in a given context.”
76 Fed. Reg. at 24,987. The agency explained that
regulation of power plants under Section 7412(n)(1)(A)
is “appropriate” if (1) hazardous air pollutant emis-
sions from those plants pose a hazard to either public
health or the environment and (2) controls are availa-
ble to reduce such emissions. /d. at 24,988-24,989.
The EPA also stated that the best interpretation of
the term “appropriate” is that it does “not allow for
the consideration of costs in determining whether
hazards to public health or the environment are rea-
sonably anticipated to occur based on {power plant}
9
emissions.” Id. at 24,989. The EPA further explained
that nothing in Section 7412(n)(1)(A) requires the
agency to consider costs as part of the source-
category listing decision. The EPA also noted that
Congress had not allowed the agency to consider costs
when listing other source categories for regulation or
when evaluating whether any source should be delist-
ed. bid.
The EPA further explained that it may find regula-
tion to be “appropriate” based “on a finding that any
single [hazardous air pollutant] emitted from [power
plants] poses a hazard to public health or the envi-
ronment.” 76 Fed. Reg. at 24,988. It noted that Sec-
tion 7412 does not mandate separate “appropriate and
necessary” findings for each individual pollutant, and
that Section 7412 requires the EPA to promulgate
standards for all hazardous air pollutants emitted by
all of the other listed source categories subject to
regulation. Jd. at 24,989 (citing National Lime Ass'n
v. EPA, 233 F.3d 625, 633 (D.C. Cir. 2000)). The EPA
also explained that regulation of power plants is “nec-
essary” under Section 7412(n)(1)(A) if public health or
environmental hazards posed by power-plant emis-
sions will not be addressed through the implementa-
tion of other Clean Air Act requirements. /d. at
24,990-24,992.
Finally, the EPA reaffirmed its initial December
2000 “appropriate and necessary” finding and listing
decision, and it cited additional new robust technical
analyses concerning the health and environmental
hazards posed by power-plant hazardous air pollutant
emissions. 76 Fed. Reg. at 24,986, 24,993-25,020.
Those new analyses included, inter alia, a national-
scale mercury risk assessment and a set of 16 case
10
studies of inhalation risks agsociated with non-
mercury pollutants. /d. at 25,007-25,012. The EPA
also noted its finding that power plants are responsi-
ble for approximately 50% of anthropogenic domestic
mercury emissions, 82% of hydrogen chloride (an acid
gas) emissions, 62% of hydrogen fluoride (another acid
gas) emissions, 83% of selenium emissions, 62% of
arsenic emissions, and significant quantities of several
other hazardous air pollutant emissions. /d. at 25,002,
25,005-25,006.
4. In February 2012, the EPA issued a final rule
promulgating emission standards for power plants. 77
Fed. Reg. 9304 (Feb. 16, 2012) (2012 Final Rule). The
preamble to the rule addressed comments on the
agency's interpretation of Section 7412(n)(1)(A)’s
“appropriate and necessary” standard. The preamble
explained that costs do “not have to be read into the
definition of ‘appropriate,’” and that “it is reasonable
to assess whether to list [power plants] * * * with-
out considering costs.” Jd. at 9326-9327.‘ EPA also
reaffirmed its initial December 2000 “appropriate and
necessary” finding and listing decision, as well as the
additional analyses of the health and environmental
hazards posed by power-plant hazardous air pollutant
emissions that the agency had discussed in the 2011
Proposed Rule. /d. at 9310-9364.
In promulgating the 2012 Final Rule, the EPA ul-
timately concluded that it was “appropriate” to regu-
* See also 1 EPA’s Responses to Public Comments on EPA’s Na-
tional Emissions Standards for Hazardous Air Pollutants from Coal-
and Oil-Fired Electric Utility Steam Generating Units 29 (Dec.
2011) (EPA Responses to Comments), http://www.epa.gov/ttn/atw/
utility/mats rte chapters foreword-1-2-34 121611.pdf (last visited
Oct. 13, 2014).
11
late coal- and oil-fired power plants under Section
7412 because, inter alia: (1) such plants remain by far
the largest domestic source of mercury as well as of
many other listed hazardous air pollutants; (2) mercu-
ry and other emitted pollutants (including non-
mercury metals and acid gases) pose hazards to public
health ana the environment; and (3) effective controls
remain available to reduce emissions. 77 Fed. Reg. at
9362-9363, 9366 (noting that various findings provided
independent bases for regulation). The agency sepa-
rately reaffirmed that it was “necessary” to regulate
power-plant hazardous air pollutant emissions for
various reasons, including the EPA’s conclusion that
the identified hazards to public health will not be
addressed through the implementation of other Clean
Air Act requirements pertaining to power plants. /d.
at 9363.°
Applying the methodology prescribed by Congress
in Section 7412(d), the EPA then promulgated emis-
sion standards for listed hazardous pollutants emitted
by power plants. 77 Fed. Reg. at 9366-9376. The EPA
explained that those standards can be met with proven
and available technologies. Ibid.; see id. at 9307. The
agency also noted that the standards would dramati-
cally reduce power-plant emissions of mercury and
other hazardous air pollutants and would result in
extraordinary public health benefits. /d. at 9306.
In promulgating the 2012 Final Rule, the EPA also
issued a Regulatory Impact Analysis (RIA) estimating
the costs and benefits of the new power-plant emission
* The 2012 Final Rule also denied an administrative petition
requesting that the EPA delist coal-fired power plants under
Section 7412(c)(9). 77 Fed. Reg. at 9364-9366 (concluding that
neither of Section 7412(c\9)(B)’s conditions had been satisfied).
12
standards pursuant to Executive Order No. 13,563,
3 C.F.R. 215 (2012). 77 Fed. Reg. at 9305-9306, 9426-
9432. That analysis projected that the standards, once
fully implemented in 2016, would yield total annual
monetized benefits of between $37 billion and $90
billion (measured in 2007 dollars), as compared to
annual costs of $9.6 billion. Jd. at 9305-9306. Those
quantifiable benefits include the prevention of up to
11,000 premature deaths each year and the prevention
of IQ loss to children whose mothers consume non-
commercial freshwater fish caught by recreational
anglers in modeled watersheds during pregnancy. /d.
at 9306, 9366, 9427-9428, 9445.°
The EPA made clear, however, that the RIA played
no role in its finding that regulating power plants
was “appropriate and necessary” under Section
7412(n)(1)(A). See 77 Fed. Reg. at 9323. It also em-
phasized that many of the direct health and environ-
mental benefits from reducing emissions from hazard-
ous air pollutants cannot be fully quantified. Jd. at
9306, 9323, 9426-9432. For example, the EPA noted
that it could not measure the benefits that would flow
from (1) reducing adverse effects on brain develop-
ment and memory functions (apart from the IQ loss
* The EPA explained that the rule would reduce emissions of
mercury and other listed hazardous air pollutants, and that the
technology necessary to reduce those emissions would also reduce
emissions of particulate matter (specifically PM,,) and sulfur
dioxide (a precursor to PM,,), which are not listed hazardous air
pollutants but are regulated surrogates under the final rule. 77
Fed. Reg. at 9305. The agency further explained that the “great
majority” of the quantifiable benefits are “attributable to co-
benefits from reductions in PM,,-related mortality.” Ibid. The
EPA emphasized, however, that those co-benefits did not form the
basis of its “appropriate and necessary” finding. /d. at 9323.
13
noted above); (2) reducing IQ loss in children whose
mothers consume commercial or saltwater fish during
pregnancy; (3) reducing IQ loss in children exposed to
pollutants after birth; and (4) other health and envi-
ronmental! benefits associated with reductions to the
incidence of cancer and of acidification of water bod-
ies. Ibid; see U.S. EPA, Regulatory Impact Analysis
for the Final Mercury and Air Toxics Standards 4-71,
http://www.epa.gov/mats/actions. htm] (last visited Oct.
9, 2014) (explaining obstacles to quantifying benefits
in greater detail). The EPA ultimately concluded
that, “[uJpon considering these limitations and uncer-
tainties, it remains clear that the benefits of this rule
* * * are substantial and far outweigh the costs.” 77
Fed. Reg. at 9306.
4. Petitioners—including several States and vari-
ous industry groups—filed consolidated petitions for
judicial review of the 2012 Final Rule in the D.C. Cir-
cuit. Other power producers and other States inter-
vened in support of the final rule. As relevant here,
petitioners challenged the EPA’s interpretation and
application of Section 7412(n)(1)(A)’s “appropriate and
necessary” requirement, arguing that it was unrea-
sonable for the agency (1) to decline to consider the
costs of regulation when deciding whether to list pow-
er plants, and (2) to regulate all hazardous air pollu-
tants emitted by power plants without making sepa-
rate and independent “appropriate and necessary”
determinations for each one. Petitioner also chal-
lenged numerous other aspects of the 2012 Final Rule,
including the EPA’s factual findings with respect to
the harmful effects of exposure to mercury and other
pollutants.
14
a. The court of appeals upheld the EPA’s “appro-
priate and necessary” finding and listing of power
plants. Pet. App. 18a-43a. Applying the familiar two-
part test set forth in Chevron, 467 U.S. at 842-843, the
court first concluded that the statute “does not evince
unambiguous congressional intent on the specific issue
of whether EPA was required to consider costs in
making its ‘appropriate and necessary’ determination
under {Section 4212(n)(1)(A)].” Pet. App. 25a. It then
upheld the EPA’s interpretation as “clearly permissi-
ble,” stating that the agency had “reasonably conclud-
ed it need not consider costs in making its ‘appropri-
ate and necessary’ determination under [Section
7412(n)(1)(A)].” Jd. at 25a, 38a. The court of appeals
relied in part on Whitman v. American Trucking
Ass'ns, 531 U.S. 457 (2001), in which this Court high-
lighted its longstanding “refus[al] to find implicit in
ambiguous sections of the [Clean Air Act] an authori-
zation to consider costs that has elsewhere, and so
often, been expressly granted.” /d. at 467; see Pet.
App. 25a-26a; see also id. at 31a n.2 (citing other cases
in which this Court has refused to require agencies to
consider costs when making regulatory decisions).
The court of appeals also noted that Congress (1) has
required regulation of other sources of pollution with-
out consideration of cost; (2) has not permitted the
EPA to consider costs when deciding whether to delist
a source category; and (3) has authorized the EPA to
take account of costs when setting the level of regula-
tion of power-plant emissions. /d. at 27a-29a, 31a; see
also 42 U.S.C. 7412(c) and (d)(2).
The court of appeals unanimously rejected peti-
tioners’ argument that Section 7412(n)(1)(A) requires
the EPA to make a separate “appropriate and neces-
15
sary” determination for each of the nearly 200 listed
hazardous air pollutants. Pet. App. 38a-40a. The
court therefore upheld the agency’s decision to treat
power plants like other listed major pollution sources,
as to which the EPA must promulgate emissions
standards for all pollutants. Jd. at 39a. In doing so,
the court rejected “[t]he notion that EPA must ‘pick
and choose’ among [such pollutants] in order to regu-
late only those substances it deems most harmful.”
Ibid. (citing National Lime Ass’n, 233 F.3d at 633-
634, and New Jersey, 517 F.3d at 582).
The court of appeals unanimously rejected all other
aspects of petitioners’ challenges to the 2012 Final
Rule. Pet. App. 16a-22a, 33a-38a, 40a-54a. Most no-
tably, it concluded that “EPA’s ‘appropriate and nec-
essary determination in 2000, and its reaffirmation of
that determination in 2012, are amply supported by”
EPA’s findings regarding the health effects of mercu-
ry exposure.” Id. at 40a-41la.
b. Judge Kavanaugh concurred in part and dis-
sented in part. Pet. App. 68a-98a. Judge Kavanaugh
joined all aspects of the panel’s per curiam opinion,
except that he agreed with petitioners that the EPA
must consider the costs associated with regulating
power plants in order to determine whether such reg-
ulation is “appropriate” under Section 7412(n)(1)(A).
ARGUMENT
The court of appeals correctly upheld the EPA’s in-
terpretation of Section 7412 and its determination that
regulation of power plants is “appropriate and neces-
sary.” Three sets of petitioners now challenge that
court’s conclusion that the agency’s construction of
the statute was “clearly permissible” under Chevron
16
U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Pet. App.
25a. That challenge lacks merit.
The EPA reasonably construed Section 7412 as di-
recting it to consider compliance costs when establish-
ing the appropriate level of any power-plant regula-
tion, but not when deciding whether to regulate those
plants under Section 7412 at all. The EPA also rea-
sonably determined that, because it is “appropriate
and necessary” to regulate power plants generally, the
agency was required to establish emissions standards
for all listed hazardous air pollutants. Petitioners
cannot show that the decision below misapplies Chev-
ron or conflicts with any decision of this Court or of
any other court of appeals. Further review is not
warranted.
1. The court of appeals correctly applied Chevron
and concluded that the EPA had reasonably declined
to consider costs when deciding whether it was “ap-
propriate and necessary” to regulate power-plant
emissions under Section 7412(n)(1)(A). There is no
merit to petitioners’ argument that the statute unam-
biguously requires the agency to consider costs when
making that determination.
a. The Clean Air Act requires the EPA to study
the health effects of power-plant emissions and to
regulate power plants if it “finds such regulation is
appropriate and necessary after considering the re-
sults of the study.” 42 U.S.C. 7412(n)(1)(A) (emphasis
added). The statute does not define the broad terms
“appropriate” and “necessary,” nor does it otherwise
explicitly address whether costs are a valid considera-
tion for the EPA to take into account when deciding
whether to list power plants for regulation under
Section 7412. This Court has made clear that statuto-
17
ry silence with respect to costs will sometimes—but
not always—prohibit the agency from taking costs
into account when deciding whether or how to make a
regulatory determination.’
In these circumstances, the court of appeals cor-
rectly held, under Chevron Step One, that Section
7412(n)(1)(A) does not unambiguously speak to wheth-
er the EPA must consider costs when deciding wheth-
er to regulate power plants. Pet. App. 25a. The court
therefore correctly concluded that the EPA's inter-
pretation must be upheld, under Chevron Step Two, if
it “is based on a permissible construction of the stat-
ute.” 467 U.S. at 843; see Pet. App. 18a, 25a, 32a-33a.
b. The court of appeals correctly upheld the EPA's
interpretation of Section 7412(n)(1)(A) at Chevron
Step Two. Section 7412 requires the agency to make
two basic determinations when regulating the sources
of hazardous air pollutants. First, the agency must
decide whether any particular source category should
appear on the list of source categories subject to regu-
lation. See 42 U.S.C. 7412(c). Second, the EPA must
promulgate specific emissions standards for any cate-
” See, eg., EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584, 1603, 1606-1607 (2014) (authorizing the EPA to consider
costs when allocating emission contributions among upwind States
under 42 U.S.C. 7410aX2XDXi)); Entergy Corp. v. Riverkeeper.
Inc., 556 U.S. 208, 223 (2009) (“(Slometimes statutory silence,
when viewed in context, is best interpreted as limiting agency
discretion.”); Whitman v. American Trucking Ass’ns, 531 U.S.
457, 467 (2001) (prohibiting the EPA from considering costs when
setting national ambient air quality standards); American Textile
Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 510-512 (1981) (holding
that the Department of Labor was not required to engage in cost-
benefit analysis when setting health and safety standards in ab-
sence of statutory command).
18
gories appearing on that list. See 42 U.S.C. 7412(d).
The EPA reasonably concluded that, with respect to
power plants as with respect to all other sources of
pollution, the costs of regulation are relevant only to
the second determination.
i. Section 7412(c) generally deprives the EPA of
any discretion to consider costs when deciding wheth-
er to include a source category on the list of those
subject to regulation. That provision requires the
agency to list and regulate (1) all “major” sources of
pollution, defined as those sources emitting more than
10 tons of a single hazardous air pollutant (or 25 tons
of any combination of such pollutants) per ‘ear, 42
U.S.C. 7412(a)(1), and (2) any “area” sources of pollu-
tion that the EPA determines are dangerous “to hu-
man health or the environment.” 42 U.S.C. 7412(c)(1),
(2) and (3). Those statutory directives are mandatory
and do not authorize the EPA to consider the compli-
ance costs associated with regulating either type of
source when making the initial listing decision.®
Section 7412(c)(9) authorizes the EPA to delete any
major or area source category from the list in certain
specified circumstances. As with the provisions estab-
lishing the general criteria the EPA must use when
listing such categories, Section 7412(c)(9) does not
authorize the agency to consider costs when making
such deletions. Rather, the EPA is authorized to
* See 42 U.S.C. 7412(c)(1) (declaring that the EPA “shall publish
* * © a list of all categories and subcategories of major
sources); 42 U.S.C. 7412(c)(3) (declaring that the EPA “shall list
* * * each category or subcategory of area sources which [the
EPA] finds presents a threat of adverse effects to human health or
the environment * * * warranting regulation under this sec-
tion”).
19
delete a category from the list in two limited situa-
tions.
First, the EPA may delete a source category if
(1) the “sole reason” for initially including the catego-
ry on the list was its emission of a “unique chemical
substance,” and (2) that substance is subsequently
deleted from the separate list of hazardous air pollu-
tants because the EPA concludes that it will not cause
adverse effects to human “health” or the “environ-
ment{].” 42 U.S.C. 7412(c)(9)(A) (cross-referencing 42
U.S.C. 7412(b)(3)(C) and (D)).
Second, the EPA may delete a source category if
two other conditions are both satisfied. To the extent
that sources within the category emit pollutants that
may Cause cancer in humans, the EPA must determine
that “no source in the category (or group of sources in
the case of area sources) emits such hazardous air
pollutants in quantities which may cause a lifetime
risk of cancer greater than one in a million to the indi-
vidual in the population who is most exposed to emis-
sions of such pollutants.” 42 U.S.C. 7412(c)(9)(B)(i).
In addition, to the extent that sources within the cate-
gory emit pollutants that result in adverse health
effects other than cancer, or in adverse environmental
effects, the EPA must determine that “emissions from
no source in the category or subcategory (or group of
sources in the case of area sources) exceed a level
which is adequate to protect public health with an
ample margin of safety and no adverse environmental
effect will result from [such] emissions.” 42 U.S.C.
7412(c)(9)(B)(ii).
Although Section 7412(c) does not call for the EPA
to consider costs when deciding whether to list or
delist source categories, the statute does require the
20
agency to consider costs when deciding whether to set
the proper level of permissible emissions beyond the
minimum level required by Section 7412(d)(3). Thus,
Section 7412(d)(2) states that the EPA must promul-
gate emission standards that
require the maximum degree of reduction in emis-
sions of the hazardous air pollutants subject to this
section (including a prohibition on such emissions,
where achievable) that the [EPA], taking into con-
sideration the cost of achieving such emission re-
duction, and any non-air quality health and envi-
ronmental impacts and energy requirements, de-
termines is achievable for new or existing sources.
42 U.S.C. 7412(d)(2) (emphasis added).
ii. Congress instructed the EPA to regulate power
plants if the agency concludes that such regulation is
“appropriate and necessary” after considering a study
of the health dangers posed by power-plant emissions
after imposition of the other requirements of the Clean
Air Act Amendments of 1990. 42 U.S.C. 7412(n)(1)(A).
In light of the broader statutory scheme discussed
above, the EPA interpreted that “appropriate and
necessary” standard not to require any consideration
of costs when making the initial decision whether to
include power plants on the list of source categories
subject to regulation.
The EPA’s decision was reasonable, and the court
of appeals correctly upheld it at Chevron Step Two.
As explained above, Congress made cost irrelevant to
the initial listing decision for other source categories,
and nothing about Section 7412(n)(1)(A) requires a
different result with respect to power plants. Alt-
hough Congress gave the EPA broad discretion to
decide whether regulation of power plants is “appro-
21
priate and necessary,” the agency in making that
determination reasonably looked to the process that
Congress had established for listing other source
categories.
In determining the range of factors bearing on the
initial listing decision, the EPA also reasonably con-
sidered the criteria that Congress had established for
deleting source categories from the list. After all,
those criteria govern the deletion of “any source cate-
gory”—including power plants—from those subject to
regulation. 42 U.S.C. 7412(c)(9)(B) (emphasis added).
The EPA appropriately concluded that Congress
would not have intended it to consider a factor when
initially listing power plants that it could not subse-
quently consider when deciding whether to delist such
plants. Petitioners’ contrary interpretation would
produce a strange and asymmetric scheme, under
which the EPA could consider expected costs at the
outset in deciding whether power plants should be
placed on the list, but could not revisit an initial listing
decision if the costs of regulation turned out to be
higher than anticipated. The EPA reasonably deter-
mined that the same sorts of considerations should
govern both the listing and delisting of power plants
under Section 7412(c)(9) and (n)(1)(A).
To be sure, Congress required the EPA to follow a
separate procedure—unlike the one generally appli-
cable to other hazardous air pollution sources—when
deciding whether to include power plants on the list of
sources subject to regulation. But Congress’s decision
to require the EPA to make the “appropriate and
necessary” determination after considering a study of
the effects of power-plant hazardous air pollutant
emissions on public health does not imply that it also
22
wanted the EPA to consider costs when deciding
whether to regulate such plants. If anything, it sug-
gests the opposite, since the study mandated by Sec-
tion 7412(n)(1)(A)}—unlike the studies required by
other provisions of Section 7412—does not itself re-
quire the EPA to consider the costs of regulation in
any way.”
iii. As the court of appeals correctly explained, this
Court’s analysis in Whitman v. American Trucking
Ass’ns, 531 U.S. 457 (2001), supports the EPA’s deci-
sion not to consider costs in determining whether to
list power plants under Section 7412(n)(1)(A). See
Pet. App. 25a. The Court in Whitman held that the
EPA is prohibited from considering implementation
costs when setting national ambient air quality stand-
ards (NAAQS) under 42 U.S.C. 7409(b). 531 U.S. at
464-471. In reaching that conclusion, the Court noted
that Congress had expressly required or permitted
® See 42 U.S.C. 7412(n)(1)(A) (identifying focus of study as “the
hazards to public health reasonably anticipated to occur as a result
of emissions by [power plants] of pollutants listed under [Section
7412(b)) after imposition of the requirements of this chapter”); see
also 42 U.S.C. 7412(f)(1)(B) (requiring the EPA to report to Con-
gress on “the public health significance of {the risks of pollution
even after implementation of the Clean Air Act Amendments of
1990] and the technologically and commercially available methods
and costs of reducing such risks”) (emphasis added), (n}(1)(B)
(requiring the EPA to conduct a study of mercury emissions from
power plants and other sources and to “consider the rate and mass
of such emissions, technologies which are available to control such
emissions, and the costs of such technologies”) (emphasis added)
and (sX2) (requiring the EPA to report to Congress “information
with respect to compliance with [emissions standards established
under Section 7412} including the costs of compliance experienced
by sources in various categories and subcategories”) (emphasis
added).
23
the agency to consider costs when making various
other decisions relating to its regulation of air quality,
and it highlighted its own prior “refus{al] to find im-
plicit in ambiguous sections of the [Clean Air Act] an
authorization to consider costs that has elsewhere,
and so often, been expressly granted.” Jd. at 467
(citing General Motors Corp. v. United States, 496
U.S. 530, 588 (1990) and Union Elec. Co. v. EPA, 427
U.S. 246, 257 & n.5 (1976)).
Here, as with the NAAQS at issue in Whitman,
Congress directed the EPA to consider regulatory
costs when taking various specified actions under
Section 7412, but it did not mention costs when estab-
lishing the “appropriate and necessary” standard. “
The EPA reasonably concluded that, if Congress had
intended to require the agency to consider costs in
this specific context, it would have enacted an explicit
statutory directive to that effect. See 2011 Proposed
Rule, 76 Fed. Reg. at 24,989.
ec. Petitioners’ primary criticism of the EPA’s deci-
sion not to consider costs under Section 7412(n)(1)(A)
rests on their assertions that (1) the statutory term
“appropriate” is facially broad and does not itself
preclude consideration of costs, and (2) it is generally
reasonable for agencies to consider costs when making
regulatory decisions. See, e.g., 14-46 Pet. 16-18; 14-47
Pet. 23-24; 14-49 Pet. 17-19; see also Pet. App. 73a-77a
© See, e.g., 42 U.S.C. 7412(d2) (setting level of emission stand-
ards generally), (d)(8)(A)(i) (same with respect to coke oven batter-
ies), (f)(1)(B) (report to Congress un need for further legislation on
air pollution), (fX2)(A) (establishing additional emission stand-
ards), (nX1\B) (study of mercury emissions), (sX2) (report to
Congress on compliance with EPA standards under Clean Air
Act).
24
(Kavanaugh, J. dissenting) (making same points). But
even assuming those propositions are correct as a
general matter, Congress may instruct the EPA as to
whether and how to consider costs in any particular
circumstance. See Whitman, 531 U.S. at 466.
Here, Congress (1) prohibited the EPA from con-
sidering costs when deciding whether to list source
categories other than power plants; (2) prohibited the
EPA from delisting any source category— including
power plants—based on its assessment of costs; and
(3) directed EPA to consider costs with respect to
other specified actions under Section 7412. See pp. 17-
23, supra. In this context, the agency reasonably
concluded that Congress did not intend to require
consideration of costs as part of the determination
whether to regulate power plants under Section
7412(n)(1)(A).
It also bears emphasis that, pursuant to Congress’s
express directive, the EPA did consider costs when
setting the actual emission standards for power plants
under 42 U.S.C. 7412(d). Section 7412(d)(2) directs
that such emission standards “require the maximum
degree of reduction in emissions of the hazardous air
pollutants subject to this section * * * that the
[EPA], taking into consideration the cost of achieving
such emission reduction, and any non-air quality
health and environmental impacts and energy require-
ments, determines is achievable.” 42 U.S.C. 7412(d)(2)
(emphasis added). Congress further specified that
“(t]he maximum degree of reduction in emissions that
is deemed achievable * * * shal) not be less strin-
gent” than certain minimum levels of control that have
already been achieved by similar sources in the same
category or subcategory. 42 U.S.C. 7412(d)(3). Those
25
minimum standards themselves indirectly reflect the
costs of regulation, insofar as they turn on the emis-
sion standards that have already been achieved by
comparable sources of pollution, presumably in a cost-
effective manner. See Pet. App. 27a, 30a.
Thus, far from requiring the EPA to ignore costs
entirely when regulating power plants, Congress
instead channeled cost considerations into the second
stage of the process, at which the agency determines
the extent of such regulation. See 42 U.S.C.
7412(d)(2). EPA’s interpretation of Section 7412 to
treat costs as a relevant factor only at this latter stage
was both appropriate and consistent with petitioners’
observation that Congress is typically sensitive to
costs when imposing new regulations."
d. The state petitioners also argue that the EPA’s
interpretation of Section 7412(n)(1)(A)’s term “appro-
priate,” under which sources within a particular cate-
gory may be regulated whenever the agency identifies
a threat to public health or the environment, fails to
give that term any independent meaning. 14-46 Pet.
13-15. Petitioners observe that the agency is required
to make its “appropriate and necessary” determina-
tion after considering the results of a required study
of the hazards to public health posed by power-plant
pollution. Jd. at 14. Petitioners assert that this se-
‘! Petitioners in No. 14-49 argue that the Section 7412(n)(1)(A)
study requires the EPA to consider costs insofar as the statute
directs the agency to address “alternative control strategies for
emissions which may warrant regulation.” 14-49 Pet. 19. That is
not correct. Section 7412(n)(1A) does not require the study to
consider the costs of alternative control strategies, but merely to
describe available and effective control technologies. See 1 EPA
Responses to Comments 40.
26
quencing requires the EPA to “exercise its judgment
and consider various factors, including costs,” above
and beyond the health hazards identified by the study.
Ihid.
That argument fails for at least two independent
reasons. First, as the court of appeals explained, the
EPA “did not focus exclusively on health hazards in
considering whether regulation would be ‘appropri-
ate,’” but also considered “‘the availability of controls
to address [hazardous air pollutant] emissions from
[power plants].’” Pet. App. 28a (quoting 2011 Pro-
posed Rule, 76 Fed. Reg. at 24,989, and citing 2012
Final Rule, 77 Fed. Reg. at 9311). Petitioners are
therefore incorrect in asserting that the agency found
regulation of power-plant emissions to be “appropri-
ate” based solely on the study of health hazards re-
quired by Section 7412(n)(1)(A).
Second, as the court of appeals also recognized, the
EPA’s interpretation of the statute still required the
agency “to apply its judgment in evaluating the re-
sults of the [Section 7412(n)(1)(A)] study.” Pet. App.
28a. At the time Congress required that study, it was
unclear whether the EPA would ultimately conclude
that power-plant emissions can reasonably be antici-
pated to cause hazards to public health. Indeed, peti-
tioners themselves disputed below that any such haz-
ards exist. See id. at 40a-42a, 48a. The EPA there-
fore correctly interpreted Section 7412(n)(1)(A) to
require it to evaluate the study’s particular findings
and then determine whether regulation was appropri-
ate.”
‘2 The state petitioners are also incorrect in implying (14-46 Pet.
15) that the EPA failed to evaluate the “severity” of health effects
as part of its hazard analysis. In fact, the EPA did consider the
27
e. Petitioners rely heavily on the regulatory impact
analysis prepared by EPA. They assert that the
agency itself believes that the costs associated with
regulation of power-plant emissions “outweigh bene-
fits by almost two thousand to one.” 14-49 Pet. i; see
id. at 2 (asserting that “EPA projected that these
regulations will inflict $9.6 billion in costs on the
American people annually, but will create only $4-6
million in annual benefit in reduced [hazardous air
pollutant] emissions”); 14-46 Pet. 12 (making same
assertion); 14-47 Pet. 3 (same).
Petitioners’ statements reflect a serious misunder-
standing of the EPA’s cost-benefit analysis. As the
EPA explained in promulgating the 2012 Final Rule,
the agency actually concluded that the rule will yield
overall annual monetized benefits of between $37
billion and $90 billion (measured in 2007 dollars),
while generating annual costs of $9.6 billion. 77 Fed.
Reg. at 9305-9306. That analysis includes the EPA’s
estimate of the co-benefits associated with reducing
emissions of particulate matter and sulfur dioxide,
along with a partial estimate of the direct benefits
associated with reducing emissions of hazardous air
pollutants listed under Section 7412(b). /bid.
The EPA has also stated that it is impossible to
quantify the full benefits directly associated with the
rule’s reduction of Section 7412(b) pollutants. See
severity of health effects. See, e.g., 2011 Proposed Rule, 76 Fed.
Reg. at 24,992 (considering “the nature and severity of the health
effects associated with exposure,” the agency’s “degree of confi-
dence in [its] knowledge of these health effects,” and “the magni-
tude and breadth of the exposures and risks posed by [hazardous
air pollutant] emissions”); see also Pet. App. 40a-42a (rejecting
petitioners’ challenge to the EPA’s application of those factors).
28
2012 Final Rule, 77 Fed. Reg. at 9306, 9323, 9426-
9432. Although the EPA estimated that the rule
would yield $4 million to $6 million in such benefits as
a result of certain specific reductions in IQ loss, the
agency explained that “these calculated benefits [from
reductions in IQ loss] are a small subset of the bene-
fits of reducing [mercury] emissions” under the 2012
Final Rule. Jd. at 9428 (emphasis added). The EPA
also stated that, despite the “limitations and uncer-
tainties” associated with the calculations, “it remains
clear that the benefits of this rule * * * are sub-
stantial and far outweigh the costs.” Id. at 9306 (em-
phasis added). Petitioners’ arguments conflate the
EPA’s estimate of one small component of the direct
benefits associated with the rule with the agency’s
assessment of the rule’s (much larger) total benefits.
When properly understood, the EPA’s cost-benefit
analysis directly undermines petitioners’ case for
further review. Although the EPA did not rely on
that analysis when it made the finding that petitioners
challenge, the analysis reflects the agency’s consid-
ered judgment that the overall benefits of subjecting
power plants to regulation under Section 7412 far
outweigh the overall costs—to the tune of many tens
of billions of dollars. Thus, even if the EPA were
required to consider costs in making its “appropriate
and necessary” determination, as petitioners argue,
there is no reason to expect that it would reach a dif-
ferent conclusion and decline to regulate power plants.
In these circumstances—where even a decision favor-
able to petitioners is unlikely to make any practical
difference—this Court’s intervention is especially
unwarranted.
29
2. Petitioners also criticize the EPA’s decision to
regulate power-plant acid gas emissions (such as hy-
drogen chloride and hydrogen fluoride). 14-49 Pet.
22-28; see also 14-47 Pet. 19, 24-27. They argue that
(1) the EPA erred in concluding that, once it decided
to regulate power-plant emissions under Section
7412(n)(1)(A), it was required to regulate all hazard-
ous air pollutants; and (2) the EPA lacked sufficient
evidence to conclude that such emissions pose any
threat to public health or the environment. 14-49 Pet.
22-28 (advancing both arguments); see also 14-47 Pet.
19, 24-27 (advancing first argument). The court of
appeals correctly (and unanimously) rejected both of
those contentions. Pet. App. 38a-44a.
a. After the EPA initially determined that power
plants must be listed as a source category pursuant to
Section 7412(c), the agency reasonably interpreted
Section 7412(n)(1)(A) to require the promulgation of
emission standards for all listed hazardous air pollu-
tants, including acid gases, that power plants emit.
See 77 Fed. Reg. at 9326; Pet. App. 38a-40a. As the
court of appeals recognized, Section 7412(n)(1)(A)
governs only the EPA’s initial determination whether
to list power plants as a source category to be regu-
lated. Pet. App. 39a. Once listed, however, such facil-
ities are properly treated like other listed source
categories and therefore are subject to all of the re-
quirements of Section 7412. Jbid. Petitioners do not
challenge the court of appeals’ unanimous conclusion
that “EPA’s ‘appropriate and necessary’ determina-
tion in 2000, and its reaffirmation of that determina-
tion in 2012, are amply supported by EPA’s findings
regarding the health effects of mercury exposure.”
Id. at 40a-41a.
30
Petitioners in No. 14-49 argue (Pet. 27) that
“regulation under Section 7412(n)(1)(A) is pollutant-
specific.” They suggest (ibid.) that the EPA was
obligated to make dozens of separate “appropriate and
necessary” findings corresponding to each of the
listed hazardous air pollutants that power plants emit.
The statutory text does not support that proposition.
Section 7412(n)(1)(A) directs the EPA to “regulate
electric utility steam generating units [ze., the
statutorily-defined source category of power plants]
under this section, if [the agency] finds such
regulation is appropriate and necessary.” 42 U.S.C.
7412(n)(1)(A). Under the plain terms of the statute,
the required determination concerns whether regula-
tion of a particular source category “is appropriate
and necessary,” not whether regulation of particular
types of emissions satisfies that standard. See Pet.
App. 39a.
It is also significant that, if the EPA finds regula-
tion of power plants to be “appropriate and neces-
sary,” Section 7412(n)(1)(A) directs the agency to
regulate power plants “under this section”—.e., un-
der Section 7412. Section 7412(d) sets forth the pro-
cedures for setting emission standards under Section
7412. It unambiguously requires the EPA to promul-
gate such standards for each listed hazardous pollu-
tant emitted by sources within any listed category
that includes major sources. See generally National
Lime Ass’n v. EPA, 233 F.3d 625, 633-634 (D.C. Cir.
2000). Once the EPA decided to list power plants as a
source category of hazardous air pollutants under
Section 7412(c), Section 7412(d) required the agency
to regulate power-plant emissions of all such pollu-
31
tants, including acid gases. See generally 77 Fed.
Reg. at 9330.
b. Even if a pollutant-by-pollutant approach were
required as petitioners assert, the EPA’s decision to
regulate acid gas emissions was justified by its find-
ings concerning their harmful environmental effects.
See 76 Fed. Reg. at 25,013, 25,016. Petitioners in No.
14-49 challenge (Pet. 22-25) the agency’s factual find-
ings concerning the dangers of acid gas emissions.
That challenge, however, is outside the scope of its
question presented in their petition, which asks only
whether the EPA may decline to consider costs when
making the Section 7412(n)(1)(A) “appropriate and
necessary” determination. See 14-49 Pet. i.
In any event, the EPA’s findings concerning the
adverse environmental impacts of acid gas emissions
are amply supported by the record. See 76 Fed. Reg.
at 25,018, 25,016. Published scientific research
demonstrates that power-plant acid gas emissions can
exacerbate acidification effects already being experi-
enced in sensitive ecosystems. /d. at 25,013 & n.127.
In issuing the 2011 Proposed Rule, the EPA noted
that it “remains concerned about the potential for acid
gas emissions to add to already high atmospheric
levels of other chronic respiratory toxicants and to
environmental loading and degradation due to acidifi-
cation.” Jd. at 25,016. The agency concluded that it
was “appropriate” to regulate acid gases because they
“are known to contribute to chronic non-cancer toxici-
ty and environmental degradation.” Jbid. As the
court of appeals correctly explained, the EPA had no
obligation to quantify the precise contribution of
power-plant acid gas emissions to ecosystem acidifica-
tion before finding an environmental hazard. See Pet.
32
App. 4la (holding that the “EPA is not obligated to
conclusively resolve every scientific uncertainty be-
fore it issues regulation”).
Petitioners in No. 14-49 disagree (Pet. 23-25) with
the EPA’s assessment of the harms posed by acid
gases, and they assert that the agency should have
seperately analyzed the role of power-plant emissions
of acid gases in causing those effects. But there is no
reason for this Court to second-guess the EPA’s ex-
pert judgment on this narrow, factbound issue. The
EPA’s discussion of acid gases pointedly noted, more-
over, that power plants “emit over half of the nation-
wide emissions of HC] and HF,” which are two of the
most significant acid gases. 76 Fed. Reg. at 25 016.
The EPA therefore had good reason to believe that
reducing such power-plant emissions would mitigate
the harms caused by acid gases generally.”
3. As explained above, the court of appeals correct-
ly upheld the EPA’s interpretation of Section 7412, as
'* Petitioners in No. 14-47 also suggest (Pet. 24-25) that EPA
should not have regulated acid gas emissions under Section 7412
because any environmental harms posed by such gases are ade-
quately addressed by Title IV of the Clean Air Act Amendments of
1990, 104 Stat. 2584, which directly regulates certain pollutants
responsible for acid rain. The court of appeals correctly concluded
that petitioners had forfeited that argument by failing to raise it
before the EPA or in their opening brief in that court. Pet. App.
47a. In any event, petitioners ignore the facts that (1) neither
hydrogen chloride nor hydrogen fluoride is regulated under the
Title IV trading program; (2) many sensitive ecosystems across
the country are still experiencing harmful acidification notwith-
standing Title IV, see 2011 Proposed Rule, 76 Fed. Reg. at 25,016;
and (3) power plants are still responsible for the vast majority of
anthropogenic hydrogen chloride and hydrogen fluoride emissions
in the United States, even after implementation of the Title IV acid
rain program, id. at 25,005.
33
well as the agency’s conclusion that it is “appropriate
and necessary” to regulate power plants. The court
based its ruling on a straightforward, routine, and
case-specific application of Chevron principles. The
court’s decision upholding the EPA’s interpretation of
Section 7412(n)(1)(A) is both correct and unlikely to
have broader legal implications.
Petitioners offer no plausible basis for concluding
that the practical impact of the regulation, standing
alone, is so extreme as to provide a sufficient justifica-
tion for this Court’s review. Nor do they contend that
the court of appeals’ decision misapplied established
administrative law principles or will affect the out-
come of any future case. Further review is not war-
ranted.
CONCLUSION
The petitions for writs of certiorari should be de-
nied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Avi GARBOW Solicitor General
General Counsel SaM HIRSCH
WENDY L. BLAKE Acting Assistant Attorney
PAUL R. VERSACE General
Attorneys ERIC G. HOSTETLER
United States Environmental Attorney
Protection Agency
OCTOBER 2014
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.