URGING THE COURT TO OVERRULE EPA’S UNPRECEDENTED ASSERTION OF POWER TO REGULATE EXISTING SOURCES OF AIR POLLUTION ON A GRID-WIDE, ECONOMIC BASIS RATHER THAN ONLY ON AN INDIVIDUAL, TECHNOLOGICAL BASIS AS REQUIRED BY STATUTE
State of West Virginia v. Environmental Protection Agency,
The North American Coal Corporation. v. Environmental Protection Agency,
Westmoreland Mining Holdings LLC v. Environmental Protection Agency,
State of North Dakota v. Environmental Protection Agency,
U.S. Supreme Court, Nos. 20-1530, 20-1531, 20-1778, 20-1780
Summary Brief: This consolidated appeal involved literally scores of states and businesses positioned as parties or amici on either side of an important Clean Air Act issue. The issue was whether Congress delegated to EPA the power to impose emission standards achievable only through various economic “systems,” like cap-and-trade, that operate at the level of the grid, rather than, as customary, through technological systems installed at the individual emission sites. In its 2015 Clean Power Plan (CPP), EPA laid claim to these enlarged powers. NELF filed an amicus brief urging the Supreme Court once again to curb EPA’s environmental overreach. The issue has enormous ramifications for the electrical power generating industry, especially for existing facilities governed by 42 U.S.C. §7411(d).
The petitioners argued that the Clean Air Act requires pollution control standards to be based on the “application of the best system of emission reduction *** for any existing source” of air pollution,” meaning, they contend, the application of the best system to the individual sources, which can only mean technological systems and not grid-based economic arrangements (citing 42 U.S.C. §7411(a), (d)) (emphasis added). Invoking the so-called major question doctrine, they also argued that the Clean Air Act lacks the clear language the Supreme Court requires before it will recognize that Congress has delegated an agency unusually extensive economic and policy-making powers, such as those claimed under the Clean Power Plan.
The D.C. Circuit, rejecting the petitioners’ patching together of §7411(a) and (d) and their blurring of the distinction between “for” and “to,” found that the Clean Air Act does not limit pollution control to use of a technological “system” that is applied to the individual emission sources. Rather, reading the word “system” expansively, it agreed with EPA that the agency’s historical views of the Clean Air Act have always been consistent with the powers claimed in the Clean Power Plan to implement a “system” of grid-wide economic arrangements. It also ruled that the major question doctrine plays no role in this case.
In its merits amicus brief, NELF engaged in a threefold statutory analysis, going far beyond that of the petitioners. First, NELF cited 42 U.S.C. §7401, containing Congress’s findings and declaration of purpose, to demonstrate that Congress expressly understood that pollution control measures should be applied “at [the] source” of the pollution. NELF pointed out that §7411(d) reflects this policy because it refers to the resulting “standards of performance for any existing source” of pollution as also applied “to” the source. NELF noted that, as far back as 1975, EPA itself understood §7411(d) in exactly that way. NELF concluded that the ruling which the circuit court made based on the distinction between “for” and “to” is unsound. Just as EPA once understood, systems of emission reduction that are chosen as best for existing sources, as well as the performance standards thereafter set for those sources, are then applied to the sources locally.
Next, NELF threw light on the meaning of “system.” Examining the dense, interlocking and overlapping definitions given in §7411(a) and §7602, NELF showed that the key term is really “system of continuous emission reduction” and that the statutory definitions focus that term solely on the individual sources of emissions, specifically on their actual physical, technical embodiment, to include their technology, equipment, design, operations, maintenance, work practices, etc.
Finally, NELF refuted EPA and the circuit court’s assertion that the powers newly asserted in the Clean Power Act are consistent with EPA’s historical views. In fact, in 1975 EPA engaged in an extensive analysis of subsection (d) and its placement in §7411. It concluded that §7411(d) requires the “best system” (i.) to be “technology-based” and (ii.) to be apply to the individual existing emission sources. That conclusion has been reflected ever since in EPA’s own regulations, which describe “best systems of emission reduction” as being systems chosen for and applied to the “facilities” that generate the emissions. Thus EPA’s own analysis provides an “at the source,” technology-based reading of §7411(d).
NELF concluded by discussing the major question doctrine and decrying EPA’s opportunistic discovery of agency power. Only after President Obama failed in 2013 to persuade Congress to grant EPA additional powers under the Clean Air Act did EPA promulgate the Clean Power Plan in 2015. Under the plan, EPA purported to exercise the same powers that it had failed to obtain from Congress, asserting, as we noted above, that it had always possessed the powers it wielded in the CPP. In other words, while these powers required new legislation in 2013, in 2015 they miraculously did not. In fact, now, just as in 2013 and 2015, the Clean Air Act lacks the clear language needed to delegate to the agency the expansive economic and policy-making powers at issue, nor may EPA rely on Chevron deference to justify those powers, for “[e]ven if the text were ambiguous, the sheer scope of the [agency’s] claimed authority . . . would counsel against the Government’s interpretation.” Alabama Association of Realtors v. Department of Health and Human Services, 141 S.Ct. 2485, 2489 (2021). NELF therefore urged the Court to reverse the circuit court’s ruling.
On June 30, 2022, the Court issued its decision. Bluntly disagreeing with the Ninth Circuit, the six-justice majority called the case a major questions case. It defended its major questions doctrine and, applying it here, found that EPA had acted entirely without authority in creating the sweeping CPP. Apparently drawing on research found only in NELF’s brief, the Court noted that EPA’s historical practice since 1975 was at odds with the agency’s present claim of powers. The decision was widely hailed as a major environmental decision and as one of the most consequential recent rulings curbing the administrative state.