Opposition Brief — Appalachian Power Co. v. Environmental Protection Agency

CS) oS”

Nos. 00-632 and 00-633

nu The Supreme Court of the Hnited

STATE OF MICHIGAN, efal., NOV 2

ws 2000

Vs.

U.S. ENVIRONMENTAL PROTECTION pean 2 vetal, VERE 44

Respondents. —

STATES OF OHIO AND INDIANA,

Petitioners,

VS.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ef al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF RESPONDENTS COUNCIL OF INDUSTRIAL BOILER

OWNERS, WEST VIRGINIA MANUFACTURERS ASSOCIATION.

MICHIGAN MANUFACTURERS ASSOCIATION AND VIRGINIA

MANUFACTURERS ASSOCIATION IN SUPPORT OF PETITION

William C. Porth Gene E. Godley

Kim Brown Poland (COUNSEL OF RECORD)

Robert E. Lannan, II Scott H. Segal

ROBINSON & MCELWEE, L.L.P. Lisa M. Jaeger

600 United Center BRACEWELL & PATTERSON,

L.LP.

Post Office Box 1791 2000 K Street, N.W., Ste 500

Charleston, WV 25326 Washington, D.C. 20006-1872

(304) 347-8248 (202) 828-5800

Counsel for Respondent Counsel for Respondent

West Virginia Manufacturers Council of Industrial

Association Boiler Owners

Additional Counsel listed on inside cover

Thomas E. Knauer

WILLIAMS, MULLEN,

CLARK & DOBBINS

1021 East Cary Street

P.O. Box 1320

Richmond, VA 23218-1320

(804) 783-6913

Counsel for Respondent

Virginia Manufacturers

Association

Rhonda Lee Ross

WARNER NORCROSS

& JUDD, L.L.P.

2000 Town Center

Suite 2700

Southfield, MI 48075-1318

(248) 784-5088

Counsel for Respondent

Michigan Manufacturers

Association

:

:

)

Nos. 00-632 and 00-633

In The Supreme Court of the United States

STATE OF MICHIGAN, ef ai.,

Petitioners,

vs.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ef al.,

Respondents.

STATES OF OHIO AND INDIANA,

Petitioners,

VS.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ef ai,

Respondents.

BRIEF OF RESPONDENTS COUNCIL OF INDUSTRIAL BOILER

OWNERS, WEST VIRGINIA MANUFACTURERS ASSOCIATION,

MICHIGAN MANUFACTURERS ASSOCIATION AND VIRGINIA

MANUFACTURERS ASSOCIATION IN SUPPORT OF PETITION

DISCLOSURE STATEMENT

Pursuant to United States Supreme Court Rule 29.6,

parties joining this brief have no parent corporations nor are

owned by 10% or more by a publicly held company.

STATEMENT

Respondents Council of Industrial Boiler Owners

(“CIBO”), West Virginia Manufacturers Association

(“WVMA”), Michigan Manufacturers Association (“MMA”),

and Virginia Manufacturers Association (“ VMA”) support the

petition of the States of Michigan, West Virginia, South

2

Carolina, Alabama and the Commonwealth of Virginia (No.

00-662) and the petition of the States of Ohio and Indiana (No.

00-663) for a writ of certiorari to review the ruling of the

United States Court of Appeals for the District of Columbia

Circuit in Michigan v. United States Environmental Protection

Agency, 213 F.3d 663 (D.C. Cir.. 2000). Some of the

Respondents have filed a brief in support of the petition

challenging the same ruling filed by Appalachian Power

Company, ef al. (No. 00-445).

As Respondents pointed out in their brief supporting the

earlier-filed petition, the Environmental Protection Agency

(“EPA”) rule at issue in these cases effectively charges

industrial sources with violations of Section 110 the Clean Air

Act, 42 U.S.C. §7410(a)(2)(D), yet the basis for the violations

is an extra-statutory construct that conflicts with longstanding

precedent. Respondents are concerned that if the ruling in

Michigan v. EPA stands, EPA will be encouraged to ignore,

where expedient, the plain meaning of the Clean Air Act and

impose its own “short-cut” interpretation of the statute.

Likewise, Respondents are concerned that the ruling left

standing will permit EPA to bypass congressional directives

regarding when and how regulatory costs should be considered,

and impose instead the agency’s own judgment. Further,

Respondents agree with State Petitioners that EPA's approach

has deprived states of the prerogative to determine how to

achieve any necessary emissions reductions.

The rule significantly impacts the industrial sector in a

manner that Respondents believe Congress did not intend by

imposing a burden to reduce emissions based on the cost of

controls, rather than the actual emissions contribution of the

source or other sources in a given state to another state.

3

For these reasons and for those expressed in

Respondents’ brief filed in support of Petition No. 00-445,

Respondents urge this Court to grant certiorari in these cases.

Respectfully submitted,

Gene E. Godley

Counsel of Record

Scott H. Segal

Lisa M. Jaeger

BRACEWELL & PATTERSON, L.L.P.

2000 K Street, N.W., Suite 500

Washington, D.C. 20006-1872

(202) 828-5800

Counsel for Respondent

Council of Industrial Boiler Owners

William C. Porth

Kim Brown Poland

Robert E. Lannan, II

ROBINSON & MCELWEE, L.L.P.

600 United Center

Post Office Box 1791

Charleston, WV 25326

(304) 347-8248

Counsel for Respondent

West Virginia Manufacturers Association

4

Rhonda L. Ross

WARNER Norcross & JupD L.L.P.

2000 Town Center, Suite 2700

Southfield, MI 48075-1318

(248) 784-5088

Counsel for Respondent

Michigan Manufacturers Association

Thomas E. Knauer

WILLIAMS, MULLEN, CLARK & DOBBINS

1021 East Cary Street

P.O. Box 1320

Richmond, VA 23218-1320

(804) 783-6913

Counsel for Respondent

Virginia Manufacturers Association

Dated: November 8, 2000