Opposition Brief — Utility Air Regulatory Group v. New Jersey (No. 08-352)

———Spreme Court, U.S.

FILED

|

1 (» (2) JAN 2 @ 2009 |

OFFICE OF T:1E CLERK

Nos. 08-352 & 08-512

Jn the Supreme Court of the Gnited States

UTILITY AIR REGULATORY GROUP, Petitioner,

Vv.

STATE OF NEW JERSEY, ET AL., Respondents.

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

Vv.

STATE OF NEW JERSEY, ET AL., Respondents.

On Petition for Writs of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ANNE MILGRAM

Attorney General

State of New Jersey

ANN B. WEEKS KEVIN P. AUERBACHER*

Clean Air Task Force JUNG W. KIM

Counsel for Environmental Deputy Attorneys General

and Public Health Groups 25 Market Street, PO Box 093

Trenton, NJ 08625-0093

RIYAZ A. KANJI (609) 292-6945

Katzen & Katzen, PLLC Counsel for the State of

Counsel for National Congress New Jersey

of American Indians and

Treaty Tribes

*Counsel of Record

{additional counsel listed on signature page]

QUESTION PRESENTED

Whether EPA may delete a category of sources of

hazardous air pollutants from the list established

under 42 U.S.C. 7412(c) without making the

determinations specified in 42 U.S.C. 7412(c)(9) for

deleting a category.

(1)

CORPORATE DISCLOSURE STATEMENT

The Adirondack Mountain Club is a

membership supported, nonprofit organization

devoted to the protection and wise recreational use of

New York State’s forest preserve lands in the

Adirondacks and _ Catskills. The Adirondack

Mountain Club has no parent corporation, and no

publicly held company owns 10 percent or more of

the Adirondack Mountain Club.

American Nurses Association is the only full-

service professional organization representing the

nation's 2.7 million registered nurses. American

Nurses Association has no parent corporation, and

no publicly held company owns 10 percent or more of

the American Nurses Association.

The American Public Health Association is a

nonprofit membership organization existing for the

purpose of influencing policy and setting priorities in

public health. American Public Health Association

has no parent corporation, and no publicly held

company owns 10 percent or more of the American

Public Health Association.

The American Academy of Pediatrics is a not-

for-profit corporation with 60,000 members dedicated

to the health, safety, and well-being of infants,

children, adolescents, and young adults. The

American Academy of Pediatrics has no parent

corporation, and no publicly held company owns 10

percent or more of the American Academy of

Pediatrics.

The Chesapeake Bay Foundation is a

nonprofit corporation with 146,000 members,

dedicated solely to restoring and protecting the

(ID

Chesapeake Bay and its tributary rivers. The

Chesapeake Bay Foundation has _ no parent

corporation, and no publicly held company owns 10

percent or more of the Chesapeake Bay Foundation.

Conservation Law Foundation is a nonprofit

organization that works to solve environmental

problems that threaten New England. Conservation

Law Foundation has no parent corporation, and no

publicly held company owns 10 percent or more of

Conservation Law Foundation.

Environmental Defense is a_ nonprofit

membership corporation of 400,000 members

dedicated to protecting the environmental rights of

all people. Environmental Defense has no parent

corporation, and no publicly held company owns 10

percent or more of Environmental Defense.

National Congress of American Indians is the

oldest and largest national organization addressing

American Indian interests, representing more than

250 Indian tribes and Alaskan Native villages.

National Congress of American Indians has no

parent corporation, and no publicly held company

owns 10 percent or more of National Congress of

American Indians.

National Wildlife Federation, a _ nonprofit

organization with approximately four million

members, is America's conservation organization

protecting wildlife for our children's future. National

Wildlife Federation has no parent corporation, and

no publicly held company owns 10 percent or more of

National Wildlife Federation.

Natural Resources Council of Maine is a

nonprofit membership organization dedicated to

(IIT)

preserving the quality of the air, water, forest and

other natural resources of the state of Maine, for the

benefit of its people and its environment. Natural

Resources Council of Maine has no _ parent

corporation, and no publicly held company owns 10

percent or more of Natural Resources Council of

Maine.

Natural Resources Defense Council is a

nonprofit representing its 1.2 million members in

efforts to restore integrity to air, land and water,

defend endangered natural places, establish

sustainability and good stewardship of the earth, and

protect the long-term welfare of present and future

generations by protecting nature. Natural Resources

Defense Council has no parent corporation, and no

publicly held company owns 10 percent or more of

Natural Resources Defense Council.

The Ohio Environmental Council is a

nonprofit corporation that works on behalf of its

members to inform, unite, and empower Ohio

citizens to protect the environment and conserve

natural resources. The Ohio Environmental Council

has no parent corporation, and no publicly held

company owns 10 percent or more of The Ohio

Environmental Council.

Physicians for Social Responsibility is a

nonprofit corporation that represents 24,000 medical

and public health professionals committed to, among

other things, the achievement of a_ sustainable

environment by addressing issues such as the

proliferation of toxins and pollution. Physicians for

Social Responsibility has no parent corporation, and

no publicly held company owns 10 percent or more of

Physicians for Social Responsibility.

(IV)

Sierra Club is a nonprofit corporation with

750,000 members committed to the protection of the

wild places of the earth, the promotion of responsible

uses of the earth’s resources, and the protection and

restoration of the quality of the natural and human

environment. Sierra Club has no parent corporation,

and no publicly held company owns 10 percent or

more of Sierra Club.

United States Public Interest Research Group

is a nonprofit corporation dedicated to representing

its members’ interests in delivering persistent,

result-oriented, public-interest activism that protects

our environment, encourages a fair, sustainable

economy, and _ fosters responsive, democratic

government. United States Public Interest Research

Group has no parent corporation, and no publicly

held company owns 10 percent or more of United

States Public Interest Research Group.

Waterkeeper Alliance is a nonprofit

corporation that is the international center of a

network of nonprofit organizations working to

protect their communities, ecosystems, and water

quality and promote watershed protection and

advocate for their members. Waterkeeper Alliance

has no parent corporation, and no publicly held

company owns 10 percent or more of Waterkeeper

Alliance.

(V)

TABLE OF CONTENTS

Page

| IL OARS MERE ARR AST SETA OT ELIA A SOS TIES 1

Reasons Why the Petitions Should be Denied......... 15

A. This Case Presents No Issue of Legal or

Extraordinary Significance Warranting This

I te NE ooo pcuisnaevsuncvceues satecvacsacsevevatvens 15

B. This Court Should Not Grant Review Due To

The Legal Uncertainty Of EPA’s Rules

Underlying Its Delisting Decision.................. 25

RN areca catalogs sicuiacianvtesdiensaevenivousaaluneeviedeiiets 28

TABLE OF AUTHORITIES

Cases:

Bowen v. Georgetown Univ. Hosp.,

I asad awsearesin' sil snsiwanobues 18

Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667 (1986) ...........0....00000.. 20

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

OE Re Fee 0 OD vn kccchvtee ci ccocenvensscexiceccsconvs i, 15

Friends of the Earth v. EPA, 446 F.3d 140

ES ee ois a ncvestasevovyasawendacadneieesenns 21

Nat? Lime Assn v. EPA, 233 F.3d 625

Ne a csc uncesugepsinesivenaseesuaveaes 2. i3

Nat? Mining Ass'n v. EPA, 59 F.3d 1351

a. i vauewavacbunbucevbsnssuwinesselies 2

New York v. EPA, 443 F.3d 880

a a a sc vea ce devabdavacniues 21

NLRB v. United Food & Commercial Workers

Union Local 28, 484 U.S. 112 (1987) .....0000.20... 20

(VI)

VII

Table of Cases—Continued

North Carolina v. EPA, 531 F.3d 896

ee ete, i cdaccdcuicedcdensucaks iaissnenesencs 11, 26

North Carolina v. EPA, No. 05-1244,

2008 U.S. App. LEXIS 26084 (D.C. Cir.

NN As SIE: ict ascivida tehacucnncadesacevaiuarveiiokeknecasuts 11

S. Coast Air Quality Mgmt. Dist. v. EPA,

ree es. ¢ Sih eee et) ee 21

Sierra Club v. EPA, 536 F.3d 673

I a a eee aiuaas 21

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

OI ois cncnaosjncenascecs ehavedssecduetenvdiaass 14,17, 24

Statutes:

Oe a I ness ni oncotcsncek cae esascevebpsukecwineanneais 11

a Fe eh caxcasicusnunesncessainioteioecooneel ye |

re ios cass daivincs-nnsnsuincdascarececeneaceeens 3

Be Fe FR ivsiese svc vccsnccsnrssntadeceavenseesetes oc. at

OE, Fo ovincisesncencicsycovyesicstescv ecto eden 3

a vince ssicbnssnndnckncenestarcedssscsvseenten 3

ee es. Fe I we ovsiisinn cis snndvesncasnincxdedaccoociee’ 3,4

[ Gk Lame: |). | | eer fr

BF a i WN siesnivoes onc eicikiegseamncdaearcsennsieus 27

eae Bees o> ne 1, 3, 5, 16

> el 5 ey bt | ne er nee i. io

Be EF Ta. FER oon ones cen seescccodinsdavennsencsntetes dD

BF UG. Fa ova ccsnviccevesenesccecversnceesesses 6

42 U.S.C. 7412(d)(1) one Ss cake welds 3, 4, 13, 20

BE. FO vekas beakckdcdinicesnsacvaderetaueee ay

eR ee |: ee nee eee 3, 4,5

Be FE isis ek acon cence 4

Vill

Table of Statutes—Continued

Page

43 UDA... TOI ii iticcemecictnanene 3,4

42 UBC... FOP disci 3, 5, 20

4S VATE, FETED a vscncccrcceiditeedeeneeneee 4

43 UBS.. PELs 5

AD BBC... FR RID os esccccaccvcssesscensensscereestectianens 5

42 UBC. TH TQI AD ovens eciccencsvaccsccaces 3, 6, 23, 28

42 UG... TERE iikiccciineeiceneee 4

42 U.S.A. TRIB Asics teenie 4

Pub. L. No. 91-604, 84 Stat. 1676 (1970) ............. 2

Federal Register:

GO Fed. Hew. $5,904 (1996).........ccccciseteseasorsencontevers 6

GS Fed, Bom. 10,378 (1G) as cescccccsvnséssessvsosnevasssees 6

63 Fed. Reg. 17,406 (1998).........ceccccccessesesseseeeeeeeeee 7

65 Ped. Haw. 10, TOG Cr. oes ciceccsscccsccdcicesesessecnle 7

GS Fed. Hee. 16 Be Cae hav cvessccscivevevssaseunuscoveepepets 7

65 Fed. Reg. 79,825 (2000).............c<csevsessesceess passim

67 Fed. Reg. 6,521 (2002)................. 7, 9; 15, 16, 22

69 Fed. Reg. 4,652 (2004)................sssccosesosseees 10, 11

70 Fed. Reg. 15,994 (2005)........... 12, 18, 26, 26, 28

70 Ped. Hew. 2, 28 CI). oniiccsecencccccssners eee 11

70 Fed. Reg. 28,606 (2005)................. 12, 13, 26, 27

71 Bed, Hew. SE, SO CI ance cic cc. ccceciees aces 13

71 Fed. Rew. T6018 Cae) vviciiccessiccccurnomnece 27

Other Authorities:

Arnold W. Reitze, Jr., Stationary Source Air

POrtort Tie CD oss ccs dncsicasinaichesssesseees 2

IX

Other Authorities—Continued

Page

Gary C. Bryner, Blue Skies, Green Politics: The

Clean Air Act of 1990 and Its Implementation

EERE a 2

H.R. Rep. No. 101-490, pt. 1 (1990) ..cccccccssssseeseeeee 2

S. Rep. No. 101-228 (1989) 2

COPE ORE EEO O TORRE Eee led

STATEMENT

The United States Environmental Protection

Agency (EPA) and the Utility Air Regulatory Group

(UARG) seek review of a decision of the U.S. Court of

Appeals for the District of Columbia Circuit on the

basis that the lower court misapplied the familiar

legal principle that “[ijf the intent of Congress is

clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the

unambiguously expressed intent of Congress.” U.S.

Pet. at 11-12 (quoting Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842-843

(1984)); UARG Pet. at 22. Specifically, they argue

that Congress’s intent in the relevant statutory

provisions of the Clean Air Act (CAA or Act) is not

clear and that the EPA’s interpretation of those

provisions should have prevailed.

The court of appeals’ unanimous. decision

reversed EPA’s attempt to delete electric utility

steam generating units (EGUs or power plants) from

the list of industrial categories for which the Act

requires protective air toxics standards. The Act

contains only one provision authorizing’ such

“delisting,” 42 U.S.C. 7412(c)(9), which provides that

EPA “may delete any source category from the list” if

it makes specific determinations regarding the

health and environmental effects of delisting. 42

U.S.C. 7412(c)(9)(B). Because EPA undisputedly had

not made the necessary determinations, the court of

appeals vacated the agency's delisting of EGUs as

unlawful. U.S. Pet. App. at 2a-3a.

bo

Statutory provisions

As originally enacted in 1970, the CAA required

EPA to identify hazardous air pollutants (HAPs), z.e.,

substances that “cause, or contribute to, an increase

in mortality or an increase in serious irreversible, or

incapacitating reversible, illness,” and _ establish

source-specific emissions standards ffor’ these

pollutants. Pub. L. No. 91-604, 84 Stat. 1676, 1685

(1970) (codified as amended at 42 U.S.C. 7412).

Between 1970 and 1989, however, “EPA .. . listed

only eight substances as hazardous air pollutants...

and... promulgated emissions standards for seven

of them.” Nat? Lime Ass'n v. EPA, 233 F.3d 625,

634 (D.C. Cir. 2000) (quoting H.R. Rep. No. 101-490,

pt. 1, at 322 (1990); see also Nat? Mining Assn Vv.

EPA, 59 F.3d 1351, 1353 n.1 (D.C. Cir. 1995).

In 1990, Congress responded to the “almost

complete failure of [CAA] § 112 to effectively control

HAP emissions,” Arnold W. Reitze, Jr., Stationary

Source Air Pollution Law 139 (2005), by “entirely

restructur[ing]” the provision. S. Rep. No. 101-228,

at 128 (1989). See also Gary C. Bryner, Blue Skies,

Green Politics: The Clean Air Act of 1990 and Its

Implementation 148-49 (2d ed. 1995). Congress’s

amendments reflected its desire for a more

expeditious and thorough regulation of HAPs by

establishing strict deadlines for regulatory action

and source compliance, eliminating much of EPA’s

discretion in the process. Nat?/ Lime Assn, 233 F.3d

at 634; see also Nat? Mining Ass'n, 59 F.3d at 1352-

53; U.S. Pet. App. 3a.

As evidence of its intent for swift EPA action,

Congress specifically listed more than 180 HAPs to

be regulated, 42 U.S.C. 7412(b)(1), established tight

and mandatory deadlines for agency action including

issuance of emissions standards, 42 U.S.C.

7412(c)(5), (d)(1), (e)(1), required minimum

stringency requirements for emissions standards, 42

U.S.C. 7412(d)(2), (d)(3), restricted EPA’s discretion

on removing sources or chemicals from the lists, 42

U.S.C. 7412(b)(3), (c)(9), and imposed limitations on

judicial review, 42 U.S.C. 7412(e)(4).

The “lists” of pollutants and source categories are

the central feature of the revamped section 7412; the

inclusion of a HAP on the section 7412(b) list or a

source category on the section 7412(c) list triggers

EPA’s statutory obligation to regulate such HAP or

source category. 42 U.S.C. 7412(c)(2), (d)(1).

First, to ensure timely and effective regulation of

HAP emissions under section 7412, Congress

required EPA to list all major and area source

categories of HAPs by November 1991, and to

publish and revise at least every eight years a list of

all categories and subcategories of major sources of

the listed HAPs. 42 U.S.C. 7412(c)(1). By defining a

“major” source to include any stationary source or

group of stationary sources that emits or has the

potential to emit 10 tons per year or more of any

HAP or 25 tons per year or more of any combination

of HAPs, 42 U.S.C. 7412(a)(1}, Congress broadly

required that the list of source categories include all

sources determined to emit in excess of the threshold

limits.

For EGUs, Congress required EPA first to

conduct “a study of the hazards to public health

reasonably anticipated to occur as a result of

emissions by electric utility steam generating units”

of HAPs listed under section 7412(b) “after

imposition of the requirements of this chapter.” 42

U.S.C. 7412(n)(1)(A).! In accordance with the other

deadlines it established when it amended section

7412, Congress established a deadline — November

15, 1993 — by which this study was to be completed.

Id. If EPA determined that regulation of EGUs was

appropriate and necessary after considering the

results of this study, EPA was directed to regulate

EGUs under section 7412, 7e, to list EGUs as a

source category under section 7412(c) and obey the

statutory provisions applicable to listed source

categories. Jd.

Second, in accordance with Congress’s desire for

expeditious regulation of HAP emissions, Congress

required EPA to establish strict emission standards

for all listed categories by statutorily-fixed deadlines,

which “shall be effective upon promulgation.” 42

U.S.C. 7412(c)(2), (c)(5), (d)(1), (d)(2), (d)(8), (d)(10),

(e)(1), (e)(5). Congress required EPA to issue

emissions standards for at least 40 categories of

sources by 1992; for at least 25 percent of hsted

categories by 1994; for an additional 25 percent by

1997; and for “all categories and subcategories” not

later than November 15, 2000. 42 U.S.C. 7412(e)(1).

These emissions standards, known as Maximum

Achievable Control Technology or “MACT”

standards, must require of all major sources in a

source category the maximum degree of reduction of

each emitted HAP that is achievable for the category,

1 Section 7412(n)(1) also required EPA to conduct a study

of mercury emissions from EGUs, and the National! Institute of

Environmental Health Sciences to conduct a study to determine

the threshold for mercury concentrations in fish which may be

consumed, including by sensitive populations, without adverse

public health effects. 42 U.S.C. 7412(n)(1)(B), (n)(1)(C).

taking into consideration certain factors, including

cost and non-air quality health and environmental

impacts and energy requirements. 42 U.S.C.

7412(d)(2). New sources ~ which must comply with

MACT immediately — must equal or exceed the

emission control achieved in practice by the best-

controlled similar source as determined by EPA. 42

U.S.C. 7412(d)(3); 42 U.S.C. 74120)(1). Standards

for existing sources must be at least as stringent as

the average emission limitation achieved by the best

performing twelve percent of existing sources. 42

U.S.C. 7412(d)(3). Existing sources must comply

with the standards “as expeditiously as practicable,

but in no event later than 3 years after the effective

date of such standard.” 42 U.S.C. 7412(i)(3)(A).

Third, to prevent serial legal challenges from

delaying the regulatory process, Congress specified

that the listing of a category or subcategory is “not

final agency action subject to judicial review.” 42

U.S.C. 7412(e)(4). Instead, section 7412(e)(4)

permits judicial review of EPA’s decision to list a

source category for regulation under section 7412

after EPA develops and then issues MACT standards

for that listed source category or subcategory. Jd.

Fourth, further reflecting Congress’s desire for

stringent and thorough regulatien of HAP emissions,

Congress authorized EPA to remove “any” source

category from the section 7412(c) list only after EPA

first makes specific, risk-based findings. 42 U.S.C.

7412(c)(9). For HAPs that may cause cancer, EPA

must determine that “no source in the category . .

emits such hazardous air pollutants in quantities

which may cause a lifetime risk of cancer greater

than one in one million to the individual in the

population who is most exposed... .” 42 U.S.C.

7412(c)(9)(B)G@). For HAPs that do not have the

potential to cause cancer, the agency must determine

that “emissions from no source in the category or

subcategory concerned . . . exceed a level which is

adequate 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).

EPA’s Listing of EGUs

Although EPA was required to complete the

congressionally mandated study by November 15,

1998, 42 U.S.C. 7412(n)(1)(A), EPA failed to do so.

EPA settled a lawsuit filed by environmental groups

to compel the agency to comply with the law,

agreeing to specific dates by which to complete the

required study and propose regulations if EPA

determined that regulation of EGUs under section

7412 was appropriate and necessary. Settlement

Agreement, Natural Res. Def. Council v. EPA, No.

92-1415 (D.C. Cir. Oct. 26, 1994). In a 1998

modification to the settlement agreement, EPA

agreed to make the required determination by

December 15, 2000. Stipulation for Modification of

Settlement Agreement, Natural Res. Def Council v.

EPA, No. 92-1415 (D.C. Cir. Nov. 16, 1998).

In 1998, EPA transmitted its Final Report to

Congress (RTC) after public notice and scientific peer

review. 63 Fed. Reg. 10,378 (1998) (EPA’s Electric

Utility Hazardous Air Pollutant Study); see a/so 60

Fed. Reg. 35,394 (1995) (notice and comment for

Draft Report). The report found that EGUs emitted

numerous HAPs of concern, including mercury,

which is toxic and poses a particular risk of mercury

exposure to neurological development in fetuses and

children (RTC at 7-16 to -18); lead and cadmium,

both heavy metals that tend to bio-accumulate and

are toxic when inhaled or ingested (RTC at 8-16);

arsenic, due to its carcinogenic effects (RTC at 10-34

to -35); dioxins, which tend to accumulate in the

environment and are extremely toxic to humans and

wildlife even in small amounts (RTC at 11-4, 11-27 to

-28); hydrogen chloride, which has both acute and

chronic effects on humans (RTC at 12-1, E-11 to -12);

and hydrogen fluoride, which adversely impacts

human health and wildlife (RTC at 3-15, 12-4 to -5,

E-12 to -13).

The RTC was followed by a proposed information

collection request (ICR) seeking further data bearing

on whether EGUs should be regulated under section

7412, 63 Fed. Reg. 17,406 (1998), and numerous

public comment opportunities, 65 Fed. Reg. 10,783

(2000) (February notice seeking additional

information for its forthcoming section 7412(n)

determination); 65 Fed. Reg. 18,992 (2000) (April

notice of public meeting on whether EGUs should be

regulated under section 7412, a determination which

EPA noted that it was obliged to make on or before

December 15, 2000).

On December 14, 2000, EPA issued its

determination that regulation of HAP emissions

from coal- and oil-fired EGUs under section 7412 was

appropriate and necessary and added these sources

to the section 7412(c) list. 65 Fed. Reg. 79,825

(2000); 67 Fed. Reg. 6,521 (2002). EPA's

determination and listing were based on a fully

developed administrative record that included its

RTC, which was completed after public comment and

scientific peer review, public submissions in response

to the ICR, a National Academy of Sciences (NAS)

study on EGU mercury emissions prepared for EPA,

a multi-agency study of various emissions control

technologies, and comments received in response to

its February and April 2000 Federal Register notices.

65 Fed. Reg. at 79,826.

Among other things, EPA found that the utility

industry emitted approximately 46 tons of mercury

in 1990 and was projected to emit approximatcly 60

tons in 2010 from 1,026 units at 426 coal-fired

plants. Jd. at 79,828. EPA concluded that mercury,

which can change into methylmercury once

deposited, is highly toxic to humans — especially to

developing fetuses and children — and wildlife, is

persistent, and bio-accumulates in the food chain.

Id. at 79,829-30.

EPA also found that EGUs emitted a significant

number of the 188 HAPs on the section 7412(b) list

and are the leading anthropogenic sources of

mercury emissions in the nation. /d. at 79,827-28.

In 1990, EGUs were found to have emitted

approximately 66 tons of arsenic, 86 tons of lead, 5

tons of cadmium, 146,000 tons of hydrogen chloride,

and 19,500 tons of hydrogen fluoride. Jd. at 79,828.

EPA further determined that the estimated growth

of the utility industry between 1990 and 2010 would

result in an overall increase in HAP emissions. /d.

at 79,829.

Accordingly, due to the public health and

environmental concerns posed by mercury emissions

and the link between coal consumption and mercury

emissions, EPA determined that section 7412

regulation of EGUs was appropriate and necessary

and listed EGUs under section 7412(c). /d. at 79,830.

The agency found that regulation of power plants

under section 7412 was appropriate because EGUs

were the largest domestic source of mercury

emissions, mercury presented sigmificant public

health hazards, and there were various control

options that would effectively reduce HAP emissions

from EGUs. /d. The agency further found that

regulation under section 7412 was necessary because

the implementation of other CAA requirements

would not adequately address the serious public

health and environmental hazards arising from

HAPs emitted by EGUs, as identified in the RTC and

confirmed by the NAS study, that section 7412 was

intended to address. Jd.

With these findings, EPA added EGUs to the

section 7412(c) list of source categories. Jd.2 EPA

explained that EPA would be developing emissions

standards under section 7412(d). Jd. EPA also noted

that pursuant to section 7412(e)(4), “today’s finding

is not subject to judicial review” and that “[a]s

specified by [CAA] section 112(e)(4), judicial review

would be available on both the listing decision and

the subsequent regulation at the time that such final

regulation is promulgated.” Jd. at 79,831.

UARG petitioned for review of EPA’s December

2000 action. Acknowledging that section 7412(e)(4)

expressly provides that listing decisions under

section 7412(c) may not be reviewed until the

promulgation of an associated emission standard,

UARG asserted that it was not challenging a section

7412(c) listing decision, but rather EPA action taken

under section 7412(n).

“ On February 12, 2002, pursuant to section 7412(c)(1),

EPA included EGUs in its notice periodically updating the

section 7412(c) list of source categories, stating that EGUs had

heen “[a]dded to [the CAA] 112(c) list [on] 12/20/2000.” 67 Fed.

Reg. 6,421.

10

A panel of the D.C. Circuit rejected UARG’s

jurisdictional argument, instead agreeing with EPA

that listing of utility sources was subject to section

7412(e)(4)’s rule precluding review of listing

decisions. The court therefore dismissed the

petition. UARG Pet. App. at 233a-234a. UARG did

not seek rehearing or review in th:s Court of the

panel’s July 26, 2001 Order.

In 2001, EPA assembled a Federal Advisory

Committee Act working group, which included

agency personnel, scientists, state and local agency

representatives, industry, and environmentalists, to

craft the required section 7412 MACT standard for

EGUs. After holding numerous meetings between

August 2001 and March 2003, EPA disbanded the

task force without formal notice or explanation.

Office of Inspector General, Additional Analyses of

Mercury Emissions Needed Before EPA Finalizes

Rules for Coal-Fired Electric Utilities, Rep. No. 2005-

P-0003, at 6, 27-30, 37-38 (Feb. 3, 2005) (Ct. of

Appeals App. (CA App.), at 1530).

Proposed Rule

Nine months after EPA abandoned the MACT

standard working group, EPA proposed removing

EGUs from the list of section 7412 source categories

by “revising” its December 2000 “appropriate and

necessary” determination instead of by following the

section 7412(c)(9) delisting procedure. 69 Fed. Reg.

4,652 (2004). EPA cited no new scientific or public

health studies of the public health hazards posed by

EGU HAP emissions to support its proposed revision.

Td. at 4,683-89.

EPA also proposed to adopt a mercury pollution

emissions trading scheme under section 7411, which

11

requires EPA to promulgate “standards' of

performance” for new sources within categories of

stationary sources that cause or _ contribute

significantly to air pollution which may reasonably

be anticipated to endanger public health or welfare.

42 U.S.C. 7411(b). The latter proposal — later

denominated the Clean Air Mercury Rule (CAMR) —

would establish an initial “cap” on aggregate EGU

mercury emissions in 2010 and a lower limit in 2018

and authorize individual EGUs to trade pollution

allowances. 69 Fed. Reg. at 4,686, 4698-99.

In its draft rule, EPA expressly recognized that

the only reductions in EGU mercury emissions

during the 2010-2017 timeframe of the CAMR would

be those obtained as a side or “co” benefit of another

regulatory proposal to control emissions of sulfur

dioxide and nitrogen oxides. 69 Fed. Reg. at 4,687,

4,698. This other program became known as the

Clean Air Interstate Rule (CAIR), a regional

program promulgated under section 7410 designed to

reduce interstate transport of criteria pollutants

contributing to ozone and particulate exceedances in

the eastern states. 70 Fed. Reg. 25,162 (2005). The

CAIR was recently declared unlawful by the court of

appeals and remanded to the agency.®

3 The court of appeals initially vacated the CAIR because it

found the rule to be “fundamentally flawed.” North Carolina v.

EPA, 531 F.3d 896, 929 (D.C. Cir. 2008). EPA petitioned for

panel rehearing and rehearing en banc, seeking, among other

things, the court’s reconsideration of the vacatur due to the

adverse impacts that would result. On December 23, 2008, the

panel issued an order “remand[ing] these cases to EPA without

vacatur of CAIR so that EPA may remedy CAIR’s flaws in

accord with [the court's] July 11, 2008 opinion[.]" North

Carolina v. FPA, No. 05-1244, 2008 U.S. App. LEXIS 26084, at

Final Rules

In its 2005 final “Delisting Rule,” EPA

announced that it would not be issuing emissions

standards for EGUs under section 7412(d) because,

contrary to the 2000 determination, it had now

concluded that regulation of EGUs under section

7412 was neither “appropriate” nor “necessary.” 70

Fed. Reg. 15,994 (2005). In particular, EPA

explained that reductions expected to result from the

CAIR and the CAMR had obviated the need for

section 7412 regulation. Jd. at 16,004-16,005.

Based solely on this revised determination, EPA

stated that it had removed coal- and oil-fired EGUs

from the section 7412(c) source list. Jd. at 16,032-33.

The agency did not assert any new scientific

understanding of EGU HAPs and their public health

or environmental impact, nor did it claim that it had

satisfied the delisting criteria set out in section

7412(c)(9). The agency instead maintained that it

was not required to do so because it had lawfully

determined the December 2000 finding “lacked

foundation.” Jd. at 16,033. It also asserted that it

had “inherent authority” to revise a finding that was

not itself final agency action for judicial review

purposes. /d.

Shortly after EPA published its Delisting Rule,

EPA finalized its CAMR under section 7411 of the

CAA. 70 Fed. Reg. 28,606 (2005). In leu of MACT

standards, the CAMR = established mercury

performance standards for new sources and a two-

phase cap-and-trade program for existing EGUs.

*5-6 (D.C. Cir. Dec. 23, 2008)

13

Unlike MACT standards, which would have

required the maximum achievable degree of

reduction of each of the HAPs that power plants

emit, 42 U.S.C. 7412(d)(1); see Nat? Lime Ass'n, 233

F.3d at 633-634, the CAMR did not address the

significant amounts of lead, arsenic, and other non-

mercury HAPs emitted by power plants. The CAMR

required no mercury specific reductions until 2018,

and was projected to reduce mercury to only

approximately 24 tons by 2020, despite the “cap” of

15 tons by 2018. 70 Fed. Reg. at 28,618-19.

On reconsideration, EPA made only two changes

to the CAMR not relevant here and otherwise

reaffirmed both rules. 71 Fed. Reg. 33,388 (2006).

Legal Challenge and Decision Below

Respondents, which include 17 States, 11 Tribes

and the National Congress of American Indians, a

city, and various public health and environmental

groups, petitioned for review of both EPA’s final rule

purporting to remove EGUs from the section 7412(c)

list and also the CAMR. Respondents maintained

that EPA violated its statutory authority by delisting

EGUs without making the findings required by

section 7412(c)(9) as a precondition for deleting any

source category from the section 7412(c) list.

Respondents also argued that both the delisting

decision and the CAMR were unlawful for other

independent reasons. A unanimous panel of the D.C.

Circuit agreed with the first argument, which

obviated the need to address the other arguments,

and vacated both rules. U.S. Pet. App. at 2a-3a.

The court of appeals concluded that because it

was undisputed that EGUs were in fact lhsted

sources under section 7412, EPA was required to

14

make the specific findings mandated by section

7412(c)(9) before removing these sources from the list

of source categories. /d. Because EPA conceded that

it had failed to make the requisite determinations,

the court determined that EGUs remained a listed

source and that EPA’s de-listing rule was invalid.

Id. at 10a-1lla.

The court acknowledged the general principle

that agencies may revisit prior policy decisions, but

stated that Congress “undoubtedly can limit an

agency’s discretion to reverse itself, and in [CAA]

section 112(c)(9) Congress’ did _ just _ that,

unambiguously limiting EPA’s discretion to remove

sources, including EGUs, from the section 112(c)(1)

list once they have been added to it.” /d. at 12a-13a.

“EPA may not,” the court explained, “construe [a]

statute in a way that completely nullifies textually

applicable provisions meant to limit its discretion.”

Id. at 13a (quoting Whitman v. Am. Trucking Ass'’ns,

531 U.S. 457, 485 (2001)).

The court of appeals rejected EPA’s argument

that section 7412(n)(1)’s provisions authorizing EPA

to determine whether regulation of power plants

under section 7412 was “appropriate and necessary”

rendered section 7412(c)(9)’s delisting mandate

ambiguous. /d. at lla. The court reasoned that

section 7412(n)(1) “governs how the Administrator

decides whether to list EGUs; it says nothing about

delisting EGUs, and the plain text of [CAA] section

112(c)(9) specifies that it applies to the delisting of

‘any source.” /d.

The court of appeals denied EPA’s and UARG’s

petitions for rehearing en banc with no member of

the court requesting a vote. /d. at 18a-19a.

15

REASONS WHY THE PETITIONS

SHOULD BE DENIED

A. This Case Presents No Issue of Legal or

Extraordinary Significance Warranting This

Court’s Review.

As petitioners recognize, EPA’s | statutory

authority to delist EGUs is governed by familiar

rules of statutory construction. Under Chevron, a

court reviewing an agency’s construction of the

statute must first inquire “whether Congress has

directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842. “If the intent of Congress

is clear, that is the end of the matter; for the court,

as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” /d. at

842-43. The ruling below follows this well-settled

principle and therefore, does not conflict with any

decision of this Court or any other, whether in its

specific result or its general approach to statutory

construction.

Here, as the court of appeals determined,

Congress has “spoken directly” to the “precise

question” of how EPA may delete a source category

from the section 7412(c) list: by following the

delisting procedures in section 7412(c)(9). Section

7412(c)(9) prescribes that EPA “may delete any

source category from the list under this subsection . .

. whenever the Administrator makes .. . [specified]

determinations.” 42 U.S.C. 7412(c)(9)(B). By its

plain terms, section 7412(c)(9) applies to “any source

category.” Jd. EGUs are a source category on the

section 7412(c) hst. 65 Fed. Reg. 79,825; 67 Fed.

Reg. 6,521. Therefore, the express language of

section 7412(c)(9) required EPA to make the

16

specified findings prior to removing EGUs from the

section 7412(c) list.

Moreover, “where Congress wished to exempt

EGUs from specific requirements of [CAA] section

112, it said so explicitly.” U.S. Pet. App. lla. For

example, section 7412(c)(6), as the court of appeals

noted, “expressly exempts EGUs from the strict

deadlines imposed on other sources of certain

pollutants.” Jd. And as the court of appeals further

noted, EPA recognized in 2002 that EGUs were

subject to the requirements of section 7412 when

EPA published its list of source categories, and has

“provide[d] no persuasive rationale for why the

comprehensive delisting process of [CAA] section

112(c)(9) does not also apply” to EGUs. U.S. Pet.

App. 1la-12a (citing 67 Fed. Reg. at 6521, 6524, 6535

n.b).

Given the specific statutory language and context

at issue, the decision below has no general legal or

practical importance to agency decision-making.

Section 7412(c) authorized EPA to delete “any source

category” from the section 7412(c) list only after EPA

makes the findings specified in the provision. 42

U.S.C. 7412(c)(9). Congress, therefore, did not leave

EPA an inherent and “temporally unlimited”

authority, U.S. Pet. at 12-13, 17, but rather,

specifically limited EPA’s discretion. This limitation

established in section 7412(c)(9) is consistent with

the highly rules-oriented statute governing

regulation of HAP emissions. The general authority

of administrative agencies to reverse course on policy

matters is not implicated here, therefore, because the

specific statutory language plainly provides

otherwise.

17

Neither EPA nor UARG makes a viable case that

the court of appeals committed error in finding that

Congress has directly spoken on the issue of how any

source category may be delisted.

First, EPA argues that the use of “may” in

section 7412(c)(9)(B) leaves EPA discretion to allow

the agency to delist in circumstances other than

those specified. U.S. Pet. at 14. But that argument

strains ordinary English usage and overlooks the

statutory context. As section 7412(c)(9) makes clear,

the use of “may” in section 7412(c)(9)(B) is

permissive only, and merely grants EPA the

discretion to decide whether to delete sources after

the agency has made the specified “determinations.”

No reasonable reading of the provision confers

discretion to delete sources for reasons different from

those specified by Congress.

EPA’s argument is particularly implausible in

light of the demanding heaith and environmental

findings specified by Congress in that subsection

before removal of “any” source category. The strict

requirements that “no source” emit pollutants that

pose a risk and that there be an “ample margin of

safety” — which apply equally to EGUs as to any

other major or area source category listed under

section 7412(c) — would be rendered practically

meaningless if EPA retained discretion to delist a

source category or subcategory on other grounds.

See Aim. Trucking Ass'ns, 531 U.S. at 485 (EPA may

not interpret the Act “in a way that completely

nullifies textually applicable provisions meant to

limit its discretion”).

Second, EPA’s_ suggestion that Congress

implicitly left EPA discretion to remove sources from

the section 7412(c) list — by declaring the finding

18

that added them to the list void ab initio — conflicts

with the overall structure of section 7412. The

listing of pollutants and source categories has

decisive significance throughout the section 7412

scheme; the respective lists identify what pollutants

and sources must be regulated, establish obligations

to promulgate standards, trigger numerous

deadlines, and may be added to and deleted from

according to specific standards and procedures. See

supra pp. 2-6. EPA’s attribution to Congress of an

intent to allow EPA to remove sources from the list

without following the express statutory provisions

for delisting is inconsistent with this carefully

wrought scheme.

Although EPA tries to bolster its case with the

settled background principle that agencies may

revisit past decisions, U.S. Pet. at 12, this has little

import in construing a provision — section 7412(c)(9)

— that was clearly intended to limit that power.

Moreover, EPA is not seeking to merely correct

an “error.” With its Delisting Rule, EPA not only

disagreed with the December 2000 finding, but

concluded that its finding was invalid when made

and therefore ineffective to have subjected EGUs

(and EPA) to the provisions of section 7412. 70 Fed.

Reg. at 16,003-16,005; U.S. Pet. at 6-7. EPA's

reversal of its December 2000 determination and

listing, in other words, was an attempt to reverse

and expunge a rule, which is little more than

retroactive rulemaking. Cf Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208-209 (1988) (stating

that courts should be “reluctant” to find retroactive

rulemaking authority “absent an express statutory

grant’).

19

Indeed, EPA did not offer any scientific or public

health studies refuting the public health hazards

posed by EGU HAP emissions to support its

retroactive rulemaking. Instead, EPA sought to

justify its reversal by relying upon two rules — the

CAIR and the CAMR —- which could not have been

predicted in 2000 when EPA listed EGUs after

determining that section 7412 regulation was

appropriate and necessary. EPA’s argument that the

listing was void ab initio because EPA in 2000 did

not consider rules that were proposed in 2004

therefore defies logic (even putting aside the later

rules’ legal flaws, see infra pp. 25-28).

Although EPA professes uncertainty as to why

Congress would limit the agency’s ability to “delist”

EGUs, U.S. Pet. at 15, the answer is not elusive. As

evident from the foregoing, section 7412(c)(9) is part

of a statutory section replete with tight deadlines -

one of which was included in section 7412(n)(1)(A) —

and rigorous textual limits on EPA’s discretion,

which was intended to avoid a repeat of the lengthy

delays and implementation failures of section 7412

during the 1970-1990 period. Those same concerns

are implicated by EPA’s attempt to substitute section

7412 regulation of EGUs, by delisting EGUs as a

source category without following section 7412(c)(Y),

with the less stringent regulation that section 7411

provides.

Third, EPA argues that because the statute

prohibits judicial review of listing decisions until

standards are promulgated, its listing was only an

“ynitial” decision that EPA is free to reconsider. U.S.

Pet. at 11. Congress, however, has broad authority

to impose limits on judicial review - which is what

Congress did here, by providing that listing a source

20

category 1s not “final agency action subject to judicial

review.” 42 U.S.C. 7412(e)(4) (emphasis added). See

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667, 672-73 (1986) (stating that the

presumption of judicial review may be overcome by

specific statutory language).

This limitation on judicial review, however, did

not alter the effect of listing according to the plain

terms of the statute, e.g., to promulgate emissions

standards, 42 U.S.C. 7412(d)(1), at which point

judicial review of the listing may be had. 42 U.S.C.

7412(e)(4). Instead, the judicial review provision

further reflects Congress’s intent to facilitate and

expedite the regulatory process established by the

amended section 7412: See U.S. Pet. App. at 13a-14a

(Congress was concerned with EPA’s failure “for

decades to regulate HAPs sufficiently.”). Cf NLRB

v. United Food & Commercial Workers Union Local

23, 484 U.S. 112, 131-32 (1987) (finding that judicial

review is allowed only as provided for in the statute

to prevent “lengthy judicial proceedings in precisely

the area where Congress was convinced that speed of

resolution is most necessary’).

UARG similarly argues, without basis, that the

2000 listing determination was “preliminary” and

“announced without rulemaking” and therefore, the

case presents an issue about the limits of one

Administration’s power to bind its successors to

rulemaking. UARG Pet. at 28-29. Not only is the

factual basis for UARG’s claim incorrect, see supra

pp.6-8, but in section 7412(c)(9), Congress prescribed

the method by which any Administrator whether

the “listing” Administrator, or a successor — may

delete a source category from the list of source

categories. UARG’s claim, therefore, lacks ment.

21

UARG also fails to show that the court of

appeals’ decision conflicts with any decision of this

Court or any other. UARG’s central argument is

that this Court should intervene to exercise its

“supervisory powcr’ to discipline the D.C. Circuit for

its “new approach” to statutory construction that

overemphasizes small snippets of statutory text.

UARG Pet. at 18, 20.

UARG, however, fails to show more than that

UARG simply disagrees with a selection of cases in

which the court of appeals found EPA’s actions

inconsistent with statutory text.4 A reading of those

decisions, like the one at issue here, reveals that the

appeals court instead employed a conventional

approach to statutory construction consistent with

Chevron. Those decisions, like the decision in this

case, were all unanimous. In none of the cases was a

vote for rehearing en banc recorded, or certiorari

granted.

Finally, the specific statutory provision that both

petitioners erroneously rely upon to attack the

decision below — section 7412(n)(1)(A) — is a unique

subsection that does not authorize an alternative

delisting path for EGUs. Within the careful

structure of section 7412, which tightly constrains

agency discretion in favor of timely and stringent

regulation of HAPs, subsection (n) served only one

function: to mandate that EPA decide whether to

4 New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006), cert

denied, 127 S. Ct. 2127 (2007), S. Coast Air Quality Mgmt. Dist.

v. EPA, 472 F.3d 882 (D.C. Cir. 2006), amended on denial of

rehearing, 489 F.3d 1245 (D.C. Cur. 2007), cert. denied, 128 S.

Ct. 1065 (2008), Friends of the Earth v. EPA, 446 F.3d 140

(D.C. Cir. 2006), cert. denied, 127 S. Ct. 1121 (2007), Srverra

Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008).

22

regulate power plants under section 7412 after

considering the results of the study required by that

subsection to be completed by November 15, 1998.

In accordance with section 7412(n)(1)(A)’s

mandate, EPA conducted public health and other

studies and considered alternative control strategies

for emissions which may warrant regulJation under

section 7412. And after completion of the necessary

studies and following extensive opportunity for

public comment, EPA determined that regulation

was appropriate and necessary and added EGUs to

the section 7412(c) list. 65 Fed. Reg. 79,825; 67 Fed.

Reg. 6,521. Once EGUs were listed, EPA was obliged

to promulgate MACT standards for new and existing

EGUs, and removal of such source category was

limited to the standards and procedure in section

7412(c)(9).

In short, once EPA determined that regulation of

EGUs under section 7412 was appropriate and

necessary and placed power plants on_ the

section 7412(c) list, section 7412(n)’s function was at

an end; it no more governed delisting than it

governed the content of regulation for power plants,

the schedule for regulating them, or any other aspect

of the regulatory process that Congress

unambiguously addressed in other subsections.

EPA argues that the use of the terms “regulate”

and “regulation” should be read to mean that EPA

retained authority to withdraw a “necessary and

appropriate” finding until standards are

promulgated for EGUs. U.S. Pet. at 13. EPA's

argument ignores that the agency not only

determined that regulation of power plants under

section 7412 was necessary and appropriate, but

added them to the section 7412(c) list, which

23

triggered specific obligations under section 7412.

Nothing in section 7412(n) mentions deletion of

power plants from the section 7412(c) list or suggests

that delisting may be done without meeting the

specific requirements for delisting in

section 7412(c)(9).

EPA’s claim that it has “continuing, temporally

unbounded” authority to simply reverse. the

appropriate and necessary determination is similarly

incorrect. U.S. Pet. at 17. Subsection (n) required

EPA to decide on the basis of a scientific study to be

completed no later than November 1993 whether

“regulation under [section 7412]” is appropriate and

necessary. 42 U.S.C. 7412(n)({1)(A).

EPA’s position that Congress vested EPA with

unlimited authority in section 7412(n), therefore, is

inconsistent with Congress’s decision to impose a

1993 deadline for the precise study that was to form

the basis for EPA’s decision. Unlike the other

subsections of section 7412 that expressly call upon

EPA periodically to revisit specified issues, section

7412(n)(1) contemplates a single determination

based upon this study. Therefore, as the court of

appeals correctly concluded, EPA’s power to delist

EGUs was governed by the provisions expressly

addressing delisting — not by an “interpretation” of

section 7412(n).

UARG attempts to impugn EPA’s motives when

it made the 2000 “appropriate and necessary”

determination by asserting that the determination

was issued “in the closing hours of the Clinton

Administration” and “[36] days before the Clinton

administration left office.” UARG Pet. at 3, 10. But

ihe timing was not surprising; as the agency made

clear in its notices leading up to its decision listing

24

EGUs, the action coincided with the December 15,

2000, deadline that EPA had agreed to in its

settlement agreement executed years before. See

supra pp. 6-7.

Finally, UARG asserts without any basis that it

is “undisputed” that the 2000 finding was flawed

because, UARG contends, EPA issued the notice of

the 2000 determination and listing without

rulemaking, completion by the agency of the

necessary studies, or consideration of the required

factors. UARG Pet. at 28. To the contrary, EPA’s

action was based on extensive scientific study and

extensive public input and its validity may be

challenged pursuant to section 7412(e)(4) after EPA

promulgates emissions standards as required by

section 7412(d). 65 Fed. Reg. 79,825 (describing the

basis for EPA’s finding and listing). UARG’s effort

to portray EPA’s determination as a hurried decision

ignores the extensive, multi-year, public process, in

which UARG participated, leading up to the

determination, including review of comprehensive

EPA and NAS studies on the effects of hazardous

pollutants emitted by EGUs. See supra pp. 6-9.

In sum, EPA and UARG fail to show that

Congress, in subsection (n), altered the fundamental

details of the section 7412 regulatory scheme such

that this Court’s review is warranted. See Am.

5 For example, EPA found that EGUs are “the largest

source of mercury emissions in the U.S., estimated to emit

about 30 percent of current anthropogenic emissions. “ 65 Fed.

Reg. at 79,827. EPA found “a plausible link between emissions

of mercury from anthropogenic sources (including coal-fired

electric steam generating units) and methylmercury in fish”

and therefore found EGU mercury emissions “a threat to public

health and the environment.” Jd.

Trucking Ass’ns, 531 U.S. at 468 (stating that

“Congress .. . does not alter the fundamental details

of a regulatory scheme in vague terms or ancillary

provisions’).

B. This Court Should Not Grant Review Due To The

Legal Uncertainty Of EPA’s Rules Underlying Its

Delisting Decision.

As EPA acknowledges, a recent decision by the

court of appeals in another Clean Air Act case

declaring the CAIR unlawful casts into doubt the

entire foundation upon which EPA relied in

promulgating the rules at issue. U.S. Pet. at 19, n.4.

See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.

2008), amended in part on rehearing, No. 05-1244,

2008 U.S. App. LEXIS 26084 (D.C. Cir. Dec. 23,

2008). Although the CAIR remains in place pending

an EPA decision on remand, given the remanded

CAIR’s “deep” flaws, the content and details of any

revised rule are far from certain. North Carolina,

531 F.3d at 929-30 (finding the CAIR to be

“fundamentally flawed”). The existing regulatory

uncertainty of the CAIR upon which EPA heavily

relied in advancing both the Delisting Rule and the

CAMR strongly militates against review by this

Court at this time.

Further, granting certiorari would not have the

effect of clearing the way for EPA’s preferred cap and

trade program as_ petitioners suggest. EPA

supported its delisting decision based upon a new,

but flawed, interpretation of section 7412(n) as well

as the CAIR and the CAMR. See, e.g., 70 Fed. Reg.

at 15,997-16,002, 16010-11. The court of appeals,

therefore, would still have to rule upon the other

legal deficiencies ratsed in review petitions below

ones that the court of appeals did not need to reach.

26

Although EPA devoted significant portions of its

petition to the policy merits of its favored

“alternative” regulatory track for mercury emissions

from EGUs, U.S. Pet. at 18-24, its substitute CAMR-

CAIR regulatory regime is not the approach that

Congress intended; indeed, it violates the CAA.

EPA justified its delisting decision and its cap

and trade program based in part upon incidental

reductions in mercury emissions from EGUs that

EPA projected would result from implementation of

the CAIR. 70 Fed. Reg. at 16,004, 16,010-11. But

the court of appeals’ recent decision holding the

CAIR unlawful on multiple grounds now undermines

EPA’s justification for its Delisting Rule as well as

the CAMR because EPA wholly relied on the CAIR to

provide a// of the reductions in mercury emissions

until 2018. Jd. at 16,010-11; 70 Fed. Reg. at 28,618-

19. Indeed, EPA itself stated that “EPA may need to

seek a remand to reconsider the CAMR and its

section 7412(n)(1)(A) determination.” U.S. Pet. at 19,

n.4. Given that EPA must now comprehensively

revise the CAIR, it seems highly doubtful that HPA

could today affirm the 2005 determination EPA

seeks to defend in this case — re., that regulation of

EGUs under section 7412 is not “appropriate and

necessary” because of the availability of alternative

regulatory mechanisms.

In addition to the CAIR, EPA also relied upon

the CAMR to. support its “revised” section

7412(n)(1)(A) determination and remove EGUs from

the section 7412(c) list. The CAMR, however, was

not an acceptable alternative to the stringent,

deadline driven program that Congress imposed for

HAPs. Although EGUs emit a significant number of

the 188 hazardous air pollutants hsted under section

27

7412, 65 Fed. Reg. at 79,827-28, the CAMR required

no reductions of any of these other HAP emissions,

such as arsenic, lead, and hydrochloric acid. Also,

because the CAMR required no significant mercury

reductions until 2018 and allowed banking of

emissions credits, the CAMR was expected to result

in smaller reductions over a much longer period of

time. 70 Fed. Reg. at 28,619.

Moreover, the CAMR’s emissions trading scheme

was based on section 7411 of the Act. Section

7411(d), however, provides for regulation of existing

sources only for air pollutants that are not “emitted

from a source category which is regulated under

section 7412.” 42 U.S.C. 7411(d)(1). Here, mercury

is a listed HAP under section 7412, 42 U.S.C.

7412(b)(1), (c)(6), and is emitted from a number of

source categories regulated under section 7412, see,

e.g., 71 Fed. Reg. 76,518 (2006) (emissions standards

for HAPs including mercury from Portland Cement

manufacturers), the CAA appears to expressly bar

regulation of mercury under section 7411.

The CAMR itself also was not a proper standard

of performance and contained serious flaws. For

example, EPA’s own data predicted that the CAMR

would yield an increase of mercury emissions in 19

states until 2018. Response to Significant Public

Comments, at 177-178 (May 31, 2006) (CA App.

3846-47). Also, as a cap and trade program, the

CAMR would only reduce emissions at those power

plants that do not buy credits, which would leave

unprotected communities and areas near and

downwind from plants that purchase mercury

pollution allowances.

Finally, in addition to the CAIR and the CAMR,

EPA also relied upon a flawed interpretation of

28

section 7412(n) to justify its delisting decision. For

example, according to EPA now, it could only

regulate EGUs under section 7412 if the power plant

mercury emissions remaining after the CAA’s other

requirements have been implemented, standing

alone, are responsible for causing hazards to human

health. 70 Fed. Reg. at 15,998, 16,001; U.S. Pet. at

6-7. Section 7412(n), however, did not limit EPA to

considering public health impacts arising from EGU

emissions in isolation; instead EPA was directed to

consider hazards reasonably anticipated to occur “as

a result of’ HAP emissions from EGUs. 42 U.S.C.

7412(n)(1)(A). And EPA’s listing of EGUs followed

the completion of the study as Congress directed and

EPA’s determination in accordance with section

7412(n)(1)(A), ze, that regulation of EGUs under

section 7412 was appropriate and necessary due to

the public health hazards reasonably anticipated to

occur as a result of HAPs emitted by EGUs based on

this and other studies — the breadth and depth of

which are discussed supra at pages 6-8 — as well as

public input.

In sum, further regulatory developments -

including a comprehensive agency review of how to

address toxics from EGUs -—- are a certainty,

regardless of the outcome of this case. For all of

these reasons, the case is not suitable for review by

this Court.

CONCLUSION

The petitions should be denied.

Respectfully submitted,

ANNE MILGRAM

Attorney General of New Jersey

KEVIN P. AUERBACHER*

JUNG W. KIM

Deputy Attorneys General

25 Market Place, PO Box 093

Trenton, NJ 08625

(609) 292-6945

* Counsel of Record

January 21, 2009

EDMUND G. BROWN JR.

Attorney General of

California

SUSAN DURBIN

Deputy Attorney General

1300 I Street

PO Box 944255

Sacramento, CA 94244

(916) 324-5475

RICHARD BLUMENTHAL

Attorney General of

Connecticut

KIMBERLY MASSICOTTE

MATTHEW LEVINE

Assistant Attorneys

General

PO Box 120, 55 Elm St.

Hartford, CT 06141

(860) 808-5250

JOSEPH R. BIDEN, III

Attorney General of

Delaware

VALERIE SATTERFIELD

Deputy Attorney General

102 West Water Street

Third Floor

Dover, DE 19904

(302) 739-4636

LISA MADIGAN

Attorney General of

Illinois

MATTHEW DUNN

GERALD T. KARR

Assistant Attorneys

General

100 West Randolph

Street, 12th Floor

Chicago, IL 60601

(312) 814-3369

JANET MILLS

Attorney General of

Maine

GERALD REID

Assistant Attorney

General

State House Station #6

Augusta, ME 04333

(207) 626-8545

DOUGLAS F. GANSLER

Attorney General of

Maryland

ROBERTA R. JAMES

Assistant Attorney

General

1800 Washington Blvd.

Suite 6048

Baltimore, MD 21230

(410) 537-3748

MARTHA COAKLEY

Attorney General of

Massachusetts

WILLIAM L. PARDEE

Assistant Attorney

General

1 Ashburton Place

Suite 1813

Boston, MA 02108

(617) 727-2200 ext. 2419

MICHAEL A. COX

Attorney General of

Michigan

B. ERIC RESTUCCIA

Solicitor General

ALAN F. HOFFMAN

NEIL D. GORDON

Assistant Attorneys

General

Box 30217

Lansing, MI 48909

(517) 373-7540

LORI SWANSON

Attorney General of

Minnesota

ALAN WILLIAMS

Assistant Attorney

General

445 Minnesota Avenue

Bremer Tower, Suite 900

St. Paul, MN 55101

(651) 296-7200

KELLY A. AYOTTE

Attorney General of

New Hampshire

K. ALLEN BROOKS

Senior Assistant Attorney

General

33 Capitol Street

Concord, NH 03301

(603) 271-3679

GARY K. KING

Attorney General of

New Mexico

JUDITH ANN MOORE

Assistant Attorney General

PO Drawer 1508

Santa Fe, NM 87504

(505) 222-9000

ANDREW M. CUOMO

Attorney General of

New York

BARBARA UNDERWOOD

Solicitor General

MICHAEL MYERS

JACOB HOLLINGER

Assistant Attorneys Genera!

The Capitol

Albany, NY 12224

(518) 402-2594

SUSAN SHINKMAN J.B. VAN HOLLEN

Chief Counsel Attorney General of

Pennsylvania Wisconsin

Department of THOMAS J. DAWSON

Environmental Protection Assistant Attorney

ROBERT A. REILEY General

Assistant Counsel PO Box 7857

RICHARD MATHER, SR. Madison, WI 53707

Deputy Chief Counsel (608) 266-8987

PO Box 8464

Harrisburg, PA 17105

(717) 787-7060

PATRICK C. LYNCH GEORGE A. NILSON

Attorney General of City Solicitor

Rhode Island WILLIAM R. PHELAN, JR.

TERENCE J. TIERNEY Chief Solicitor

Special Assistant Baltimore City

Attorney General Department of Law

150 South Main St. 100 Holliday Street

Providence, RI 02903 Baltimore, MD 21202

(401) 274-4400 (410) 396-4094

WILLIAM H. SORRELL RIYAZ A. KANJI

Attorney General of Kanji & Katzen, PLLC

Vermont 101 North Main St.,

KEVIN O. LESKE Suite 555

Assistant Attorney Ann Arbor, MI 48104

General (734) 769-5400

109 State Strect Counsel for National

Montpelier, VT 05609 Congress of American

(802) 828-3186 Indians & Treaty Tribes

ANN B. WEEKS

Clean Air Task Force

18 Tremont St., Suite 530

Boston. MA 02108

(617) 624-0234

Counsel for Conservation

Law Foundation, Natural

Resources Council of

Maine, The Ohio

Environmental Council &

U.S. Public Interest

Research Group

JAMES S. PEW

Earthjustice

1625 Massachusetts Ave.,

N.W., Suite 702

Washington, DC 20036

(202) 667-4500

Counsel for

Environmental Defense,

National Wildlife

Federation & Sierra Club

ScoTT A. EDWARDS

Waterkeeper Alliance, Inc.

50 South Buckhout St.,

Suite 202

Irvington, NY 10533

(914) 674-0622

Counsel for Chesapeake

Bay Foundation &

Waterkeeper Alliance

JOHN D. WALKE

Natural Resources

Defense Council

1200 New York Ave.,

N.W., Suite 400

Washington, DC 20005

(202) 289-6868

Counsel for Natural

Resources Defense

Council

\

JON A. MUELLER

Chesapeake Bay

Foundation

6 Herndon Avenue

Annapolis, MD 21403

(443) 482-2162

Counsel for Chesapeake

Bay Foundation

JOHN T. SUTTLES, JR.

Southern Environmental

Law Center

200 West Franklin St.,

Suite 330

Chapel Hill, NC 27516

(919) 967-1450

Counsel for Physicians for

Social Responsibility,

American Nurses

Association, American

Public Health Association

& American Academy of

Pediatrics

EDWARD D. LAIRD, JR.

LEAH CASEY

Carter, Conboy, Case,

Blackmore, Maloney &

Laird, PC

20 Corporate Woods Blvd.

Albany, NY 12211

(518) 465-3484

Counsel for Adirondack

Mountain Club

SEAN H. DONAHUE

Donahue & Goldberg,

LLP

2000 L St., NW Suite 808

Washington DC 20002

(202) 466-2234

Of Counsel to

Environmental, Public

Heath, and Tribal

Organizations