# Respondents Brief — Environmental Protection Agency v. New York, 127 S. Ct. 2127 (2007) (No. 06-736) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1799%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2007 ## Text 2 No. 06-736 jn The Supreme Court of the Gnited States + UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Petitioner, Vv. STATE OF NEW YORK. ET AL.. Respondents. . On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit . BRIEF OF VIRGINIA, ALABAMA, ALASKA, ARKANSAS, KANSAS, MISSOURI, NEBRASKA, NORTH DAKOTA, SOUTH DAKOTA, UTAH, AND WYOMING AS RESPONDENTS IN SUPPORT OF THE PETITION o ROBERT FL. MCDONNELL WILLIAM C. MIMS Attorney General of Virginia Chief Deputy Attorney : —_ General WILLIAM FE. THRO ; State Solicitor General RICHARD B. CAMPBELL Counsel of Record Deputy Attorney General STEPHEN R. MCCULLOUGH ROGER L. CHAFFE Deputy State Solicitor CARL JOSEPHSON General Senior Assistant Attorneys General OFFICE OF THE ATTORNEY GFENERAL 900 East Man Sireet Richmond. Virginia 23219 December 18, 2006 (S04) 786-2436 (S04) 786-1991 (facsimile) Counsel for the Commonwealth of Virginia | Additional Counsel Listed On Inside Of Cover | Cem hE LAW BRIER PRINTING C08 sen one NPG eon keer. tre | a TROY KING Attorney General of Alabama KEVIN NEWSOM Solicitor General ROBERT TAMBLING Chief, Environmental Division State House 11 South Union Street Montgomery, Alabama 36130 CRAIG J. TILLERY Acting Attorney General of Alaska STEVEN E. MULDER Chief Assistant Attorney General 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501 DustTIN MCDANIEL Attorney General of Arkansas TERESA MARKS Deputy Attorney General CHARLES MOULTON Senior Assistant Attorney General KENDRA AKIN-JONES Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 PAUL MORRISON Attorney General of Kansas Davin W. Davies, I] 120 S.W. 10th Avenue, 2nd Floor Topeka, Kansas 66612 JEREMIAH W. (JAY) NIXON Attorney General of Missour! JAMES R. LAYTON Missouri State Solicitor JOSEPH P. BINDBEUTEL Chief Counsel, Agriculture and Environment Division TIMOTHY P. DUGGAN Assistant Attorney General 227 W. High Street Post Office Box 899 Jefferson City, Missouri 65102 JON C. BRUNING Attorney General of Nebraska DAVID COOKSON Special Counsel to the Attorney General NATALEE J. HART Assistant Attorney General 2115 State Capitol Post Office Box 98920 Lincoln, Nebraska 68509 WAYNE STENEHJEM Attorney General of North Dakota LYLE WITHAM Assistant Attorney General 600 Kast Boulevard Avenue. Dept. 125 Bismarck, North Dakota HRDOH LAWRENCE EE. LONG Attorney General of South Dakota ROXANNE GIEDD Deputy Attorney General 1302 E. Highway 14, Suite 1 Pierre, South Dakota 57501 MARK L. SHURTLEFF Utah Attorney General Fred G. Nelson Assistant Attorney General 160 East 300 South, 5th Floor Salt Lake City, Utah 84114 PATRICK J. CRANK Attorney General of Wyoming JAY A. JERDE Deputy Attorney General NANCY E. VEHR Senior Assistant Attorney General 123 Capitol Building Cheyenne, Wyoming 82002 QUESTION PRESENTED Whether the court of appeals erred in invalidating an EPA rule on the ground that the phrase “any physical change” in the definition of “modification” in Section 111(a)(4) of the Clean Air Act, 42 U.S.C. § 7411(a)(4), unambiguously requires EPA to adopt the broadest meaning of the phrase? li TABLE OF CONTENTS Page QUESTION PREIGEIN SIED eccicccsssvescseccescsosessccsossesoses i po SOR LaF igs 6) fy... SER UCronemeenerer enema ili eT Rvechiectitneiisnsaninaianstedinipeidadtaanseeebinaiinesink 1 ili TABLE OF AUTHORITIES Page CASES Chevron, USA v. Natural Resources Defense Council, Inc., A lls BET. Ge itech laantsedatnanccdoribcars serocenrgnaionaien 5 Davis v. Michigan Dep't of Treasury, A Sa IE sa bidaidinras viaieinateccacsiseleshannaeecanisens 5 Knudsen v. Liberty Mut. Ins. Co., Ee Fe I ts Fe vasa cesseedisininiirrracecansoccovares 3 Middlesex County Sewage Auth. v. National Sea Clammer’s Ass’n, SP SIN Ba icant vearecnibe a yonaneansintbienadeandebinacanioes 5 New York v. EPA, GES Fe BO CAG, Cit, BD) issn vss ivcevccssecciveseccateinceccavsie 4 Nixon v. Missouri Mun. League, BS GR eee OD sacs vipaniceaishbecddubvucodubetpasebeetsendbacsasetaues 5 Small v. United States, Si Sree Se III vin sacrundvpenssousisbiiiecieisesssdesaupnidenbeeveusnious 5 STATUTES 42 U.S.C. §§ 7401 through 7671q Ce I iis sii. cdsaenincneccenceossersbisutecdvecbaacousnanoukines 2, 3,4 Me Rear © PBI cases saccdivaiivacuicetanicesensssuiuecdeun tanita 2,4 Oe We ls 0 ei vsavenaleaeasxichn nen ecdegucandanessuanarcaubciesptanaatia 2 ee, FA lavikiensvrcsenctacinetedinscaesstibcbeombassiinn 2 Oe SEs We FE BUG puvcivincsbatecceousebassieensbaxerctavuueubeasscee: 2 ee Ss Pe i siasnadidedinsi ceansinsnntesssvinlevéccrsntapaobivn aia 2 iv TABLE OF AUTHORITIES -— Continued CODE OF FEDERAL REGULATIONS es OE estcckirvctaiictecscttvinittundniemminbesinies 2 Be i eccicitcicintainicmsiernsddbiennctinnindelindtiisiaiimebiannadiiis 2,3 RULES UII SCT Is 20 IP steredresicap epetnicterin pgecieagtdciegdciietesehinahaiucenimesiaidmiiin 1 Ss Sais ibe Ip. cod dceassiseuibviennvneneshavipaeiapsibiesnaieneciaaaaiennaniniiaeiiadalea 1 FEDERAL REGISTER Environmental Protection Agency, Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR); Equipment Replacement Provision of the Routine Maintenance Repair and Replacement Exclusion, 68 Fed. Reg. 61248 (Oct. 27, 2003) ..............csssseeercereeeeees 3 OTHER AUTHORITIES Environmental Protection Agency, New Source Review: Report to the President (2002)......... 4 BRIEF OF VIRGINIA, ALABAMA, ALASKA, AR- KANSAS, KANSAS, MISSOURI, NEBRASKA, NORTH DAKOTA, SOUTH DAKOTA, UTAH, AND WYOMING AS RESPONDENTS IN SUPPORT OF THE PETITION Virginia, Alabama, Alaska, Arkansas, Kansas, Mis- souri, Nebraska, North Dakota, South Dakota, Utah, and Wyoming (collectively “Intervening States”) were parties in the court of appeals and, thus, technically are Respon- dents in this Court. See Sup. Ct. R. 12.6 (“All parties other than the petitioner are considered respondents. ...”). The Intervening States entered this litigation to support the United States Environmental Protection Agency (“EPA”) and they continue to believe EPA’s position is correct. Therefore, the Intervening States ask this Court to grant the Petition for the reasons stated in EPA’s Petition for Certiorari. See Sup. Ct. R. 12.6 (“a response supporting the petition shall be filed within 20 days after the case is placed on the docket”). In the event this Court grants certiorari, the Interven- ing States will file a Brief on the Merits as Respondents supporting the Petitioner. See Sup. Ct. R. 25.1 (“Any respondent ... who supports the petitioner ... shall meet the petitioner’s . . . time schedule for filing documents.”). + STATEMENT As explained in more detail in the Petition, this matter involves a challenge by New York, California, Connecticut, Delaware, Illinois, Maine, Maryland, Massa- chusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont, Wisconsin, and the 2 District .of Columbia as well as various local governments and private entities (collectively “New York”) to the Envi- ronmental Protection Agency’s regulations for determining when the Clean Air Act’s New Source Review provisions apply. Specifically, New York contends that 40 C.FR. §§ 52.21(b)(2)Gii)(a) and 52.21(cc) which is the Equipment Replacement Provision of the Routine Maintenance, Repair, and Replacement Exclusion (“the Rule”), is invalid. The Clean Air Act, 42 U.S.C. §§ 7401 through 7671q, provides for a pre-construction permitting program re- ferred to as New Source Review. See 42 U.S.C. §§ 7475 and 7503. The New Source Review program applies in areas where air quality does not meet the National Ambient Air Quality Standard promulgated by EPA for a specified air pollutant and in areas that do meet the National Ambient Air Quality Standard or are unclassifiable. Jd. Activities at existing stationary sources for which a “pre-construction” permit may be required are those that constitute a “modification” of the source.’ Routine mainte- nance, repair, and replacement have been excluded from New Source Review requirements since the program’s inception. In the challenged Rule, EPA provided a category * For New Source Review purposes, as provided by 42 U.S.C. § 7479(2\(C) and 42 U.S.C. § 7501(4), the term “modification” is defined as: The term “modification” means any physica] change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pol- lutant not previously emitted. 42 U.S.C. § 7411(a)(4). 3 of equipment replacement activities that are not subject to major New Source Review requirements under the routine maintenance, repair, and replacement exclusion. Envi- ronmental Protection Agency, Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR); Equipment Replacement Provision of the Routine Maintenance Repair and Replacement Exclusion, 68 Fed. Reg. 61248, 61248-49 (Oct. 27, 2003). As provided in the challenged Rule, replacement of broken or deterio- rating equipment at a stationary source is not a modifica- tion of that source if: (1) the replacement equipment is identical or functionally equivalent to the equipment being replaced; (2) the source’s basic design does not change; and (3) it does not cause emissions in excess of any Clean Air Act emission limitation to which the source is subject. Even if the project meets all of these criteria, however, the permitting authority must still review the project as a potential modification if the project is very expensive (i.e., if the cost of the replacement equipment exceeds twenty percent of the cost of a comparable new process unit). 40 C.F.R. § 52.21(cc). In the court below, the Intervening States argued that the Rule serves two important purposes. First, the Rule provides a much-needed clarification of the meaning of the terms “modification” and “physical change” in the Equip- ment Replacement Provision of the Routine Maintenance, Repair, and Replacement Exclusion in the New Source Review Program. The bright-line threshold established by the Rule will give States and regulated entities the regula- tory certainty needed to make rational choices about environmental and energy impacts. See Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805, 806 (7" Cir. 2005) (“[T]he first virtue of any jurisdictional rule is clarity and ease of 4 implementation.”). Second, the Rule removes any incentive for the owners and operators of generating facilities to delay the routine replacement of equipment. Although making such replacements improves the reliability, effi- ciency, and safety of generating facilities, owners and operators frequently delay such replacement because they fear that the New Source Review requirements will apply. See Environmental Protection Agency, New Source Review: Report to the President 30-31 (2002). The Rule ensures that replacement decisions are based on reliability, effi- ciency, and safety considerations. Ultimately, the District of Columbia Circuit found that the Rule was invalid, finding it “contrary to the plain language of” the definition of “modification” in the Clean Air Act. The court of appeals emphasized that the statu- tory definition of modification uses the term “any physical change,” 42 U.S.C. § 7411(a)(4) (emphasis added). “[W)hen Congress places the word ‘any’ before a phrase with several common meanings, the statutory phrase encom- passes each of those meanings. ...” New York v. EPA, 443 F.3d 880, 888 (D.C. Cir. 2006). Thus, “[allthough the phrase ‘physical change’ is susceptible to multiple mean- ings, the word ‘any’ makes clear that activities within each of common meanings of the phrase are subject to [New Source Review] when the activity results in emission increase.” Jd. at 890. Moreover, the District of Columbia Circuit found that the EPA interpretation was contrary to history and the structure of the Act. Jd. Subsequently, the court of appeals denied rehearing en banc. + 5 REASONS FOR GRANTING THE WRIT Certiorari should be granted for two reasons. First, the legal effect of the lower court’s ruling is far reaching. The court of appeals effectively held that when Congress uses the word “any” in a statute to modify an ambiguous term, an agency’s discretion to construe statutory terms is eliminated. The agency must adopt the broadest possible interpretation of a phrase that is otherwise ambiguous. Such a result contradicts the principle that a statutory term must be construed in context, rather than isolation. See Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989). Indeed, this Court repeatedly has recognized that, in some contexts, the word “any” can have something less than the broadest possible meaning. See Small v. United States, 544 U.S. 385, 388 (2005); Nixon v. Missouri Mun. League, 541 U.S. 125, 132 (2004); Middlesex County Sewage Auth. v. National Sea Clammer’s Ass’n, 453 U.S. 1, 15 (1981). Thus, it is possible that “any physical modifica- tion” means something less than all conceivable physical modifications. Moreover, by requiring the broadest possi- ble construction whenever the term “any” is used with an admittedly ambiguous term, the lower court contradicted the principles of Chevron, USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Second, the practical effect of the District of Columbia Circuit ruling is to invalidate a significant EPA regulatory initiative that was quite important to utilities with coal burning power plants and to States that have such plants and/or produce significant amounts of coal. Prior to the EPA’s attempt to promulgate the Rule, application of the routine maintenance exclusion depended upon a multi- factor case-by-case determination that was uncertain and inconsistent. The new Rule was an attempt to establish a bright-line standard that would result in certainty and consistency. + CONCLUSION For the reasons stated above and in the Petition itself, the Petition for Certiorari should be GRANTED. Respectfully submitted, ROBERT F. MCDONNELL WILLIAM C. MIMS Attorney General of Chief Deputy Attorney Virginia General WILLIAM E. THRO RICHARD B. CAMPBELL State Solicitor General Deputy Attorney General Counsel of Record Rocrr L. CHAPFE STEPHEN R. MCCULLOUGH CARL JOSEPHSON Deputy State Solicitor Senior Assistant Attorneys General General OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, Virginia 23219 (804) 786-2436 (804) 786-1991 (facsimile) December 18, 2006 Counsel for the Commonwealth of Virginia [Additional Counsel Listed On Inside Of Cover] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1799%3A7. Public record. Not legal advice.