POWER DIALOG The Clean Power Plan in the Courts · 5:05 pm Status Report: the Judicial Challenge to the Clean Power Plan Michael Myers, Chief, Affirmative Litigation Section Environmental

POWER DIALOG

The Clean Power Plan in the Courts:

The Status of the Litigation, the Role of the Supreme Court, and the

Impact on the Paris Agreement

April 4, 2016

POWER DIALOG The Clean Power Plan in the Courts:

The Status of the Litigation, the Role of the Supreme Court, and the Impact on the Paris Agreement

April 4, 2016

Agenda 5:00 pm Welcome and Introductions Prof. Eleanor Stein Albany Law School and State University of New York at Albany 5:05 pm Status Report: the Judicial Challenge to the Clean Power Plan Michael Myers, Chief, Affirmative Litigation Section

Environmental Protection Bureau, Office of New York State Attorney General

5:30 pm The World Picture: How Does the Supreme Court Action Affect the

Paris Agreement? Michael Burger, Executive Director

Sabin Center for Climate Change Law Columbia Law School

6:00 pm Questions and discussion 6:30 pm Reception

Power Dialog: The Clean Power Plan in the Courts: The Status of the Litigation, the Role of the Supreme Court, and the Impact on

the Paris Agreement

April 4, 2016 Speaker Biographies: Michael Burger is Executive Director, Sabin Center for Climate Change Law Research Scholar and Lecturer-in-Law, Columbia Law School. As Executive Director of the Sabin Center for Climate Change Law, leads a dynamic team that is at the forefront of domestic and international efforts to reduce greenhouse gas emissions and promote climate change adaptation through pollution control, resource management, land use planning and green finance. In addition to collaborating with local and national environmental groups and government representatives to advance climate action, Michael has charted a strategic course to leverage working relationships with international organizations, including the United Nations Environment Program, the United Nations Development Program, and the International Red Cross to advance climate action globally. Michael is a widely published scholar, a frequent speaker at conferences and symposiums, and a regular source for media outlets. He has taught at Columbia Law School, NYU Law School and Roger Williams School of Law, and has lead short courses on climate change and human rights in the Hague and Grand Cayman. He is also a co-founder and member of the Environmental Law Collaborative. Michael joined the Center from Roger Williams University School of Law, where he was an associate professor. At RWU, Michael taught environmental law, administrative law, and law and literature, and was founder and director of the Environmental and Land Use Law Clinical Externship program. He previously taught in the Lawyering Program at New York University School of Law, and served as an attorney in the Environmental Law Division of New York City’s Office of the Corporation Counsel. Michael is a graduate of Columbia Law School, where he was a Harlan Fiske Stone Scholar and an articles editor for the Columbia Journal of Environmental Law; and of Brown University, where he graduated magna cum laude and received the Ratcliffe Hicks Prize for highest standing in language and literature. He also holds a Master of Fine Arts degree from the Creative Writing program at NYU.

Michael Myers, Chief, Affirmative Litigation Section, Environmental Protection Bureau, Office of New York State Attorney General Eric T. Schneiderman, is recognized as one of the nation's leading Clean Air Act advocates. He directs the Attorney General's vigorous and successful efforts to protect public health, welfare and the environment by reducing climate change, smog, soot and other forms of air pollution. In 2013 the American Bar Association (ABA) honored him with its “Environment, Energy, and Resources Government Attorney of the Year

Award.” Since joining the New York State Attorney General's Office in 1999, Mr. Myers has been a leader in building multi-state coalitions seeking to ensure the federal Clean Air Act is effectively implemented and rigorously enforced. Mr. Myers's work has twice, in 2004 and 2008, been recognized by the Louis J. Lefkowitz Award, the highest commendation bestowed by the New York State Attorney General's Office for superior service by attorneys. In the Attorney General's Office, Mr. Myers argued on behalf of a multi-state coalition in a successful challenge of national air quality standards for particulate matter (soot) as insufficiently protective of public health and welfare. He led the coalition in a subsequent federal suit that resulted in the federal Environmental Protection Agency subsequently issuing strengthened soot standards that will directly benefit the health of over 100 million Americans. He argued on behalf of a multi-state coalition before the D.C. Circuit Court of Appeals supporting EPA's successful defense of landmark greenhouse gas regulations for motor vehicles and stationary sources. He also negotiated settlements of Clean Air Act enforcement cases requiring in-state and out-of-state power plants to reduce hundreds of thousands of tons of air pollution and pay the largest fine for Clean Air Act violations in New York State history. Mr. Myers is a graduate of Cornell University and Vermont Law School. Prof. Eleanor Stein, Adjunct Professor at Albany Law School and at the State University of New York at Albany, teaches The Power Dialog and Law of Climate Change: Domestic & Transnational. In November 2015, Prof. Stein earned an LL.M. with distinction in Climate Change Law and Policy from Strathclyde University in Glasgow. Prof. Stein — a former administrative law judge — recently retired after 25 years with the New York State Public Service Commission, where she last served as project manager for Reforming the Energy Vision (REV), an initiative to reduce greenhouse gas emissions and build a cleaner and more affordable energy system for N.Y. As an ALJ she presided over the state’s Renewable Portfolio Standard and Energy Efficiency Standard proceedings, and from 2013-2014 mediated the ground-breaking post-Superstorm Sandy Con Edison climate adaptation collaborative. Aside from teaching at the law school and UAlbany’s Rockefeller College of Public Affairs & Policy, Prof. Stein works with the Government Law Center at Albany Law School on climate change projects and is an expert with America’s Power Plan. Prof. Stein earned her J.D. from City University of New York Law School. Her publications include New York REV shows utilities and regulators how to manage change, http://www.utilitydive.com/news/new-york-rev-shows-utilities-and-regulators-how-to-manage-change/415002/ and Ignorance/Denial/Fear/Paralysis/Engagement/Commitment: Reflections on a Decade Teaching Climate Change Law published this past summer in Radical Teacher.

http://www.albanylaw.edu/centers/Pages/glc.aspx

http://www.albanylaw.edu/centers/Pages/glc.aspx

http://radicalteacher.library.pitt.edu/ojs/public/journals/1/RT102.pdf#page=18

ORAL ARGUMENT NOT YET SCHEDULED No. 15-1363

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATE OF WEST VIRGINIA, STATE OF TEXAS, eta!.

Petitioners, v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and REGINA A. MCCARTHY, Administrator,

United States Environmental Protection Agency,

Respondents.

On Petition for Review of a Final Action of the United States Environmental Protection Agency

STATE PETITIONERS' MOTION FOR STAY AND FOR EXPEDITED CONSIDERATION OF

PETITION FOR REVIEW

Ken Paxton Attorney General ofTexas

Charles E. Roy First Assistant Attorney General

Bernard L. MeN amee II Chief of Staff

Scott A. Keller Solicitor General Counsel q'Record

P.O. Box 12548 Austin, Texas 78711-2548 Email: [email protected] Counsel for State of Texas

Patrick Morrisey Attorney General of West Virginia

Elbert Lin Solicitor General Counsel of Record

Misha Tseytlin General Counsel

J. Zak Ritchie Assistant Attorney General

State Capitol, Bldg. 1, 26-E Charleston, WV 25305 Email: [email protected] Counsel for State of West Virginia

Additional counsel listed on signature block

CERTIFICATE AS TO PARTIES AND AMICI

Pursuant to D.C. Circuit Rule 18, Petitioners state as follows:

Parties and Amici:

Petitioners include the States of West Virginia, Texas, Alabama, Arkansas,

Colorado, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska,

New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, \Vyoming, arid

the Commonwealth of Kentucky, the Arizona Corporation Commission, the State of

Louisiana Department of Environmental Quality, the State of North Carolina

Department of Environmental Quality, and Attorney General Bill Schuette on behalf

of the People of Michigan. Respondents include the United States Environmental

Protection Agency and Regina A. McCarthy, Administrator, United States

Environmental Protection Agency. There are no intervenors or amici at this time.

TABLE OF CONTENTS

BACI<:GROUND .................................................................................................................. 3

I. Statutory Overview ..................................................................................................... 3

II. The Final Power Plan ................................................................................................. 4

ARGUMENT ......................................................................................................................... 6

I. Petitioners Are Likely To Prevail On The Merits ................................................... 6

A. Section 111 (d) Does Not Authorize EPA To Force The States To Restructure The Electrical Grid .......................................................................... 6

B. The Section 112 Exclusion Prohibits The Power Plan .................................. 11

II. The States Will Suffer Irreparable Injury Absent A Stay ..................................... 15

III. The Balance Of Harms And The Public Interest Strongly Favor A Stay .......... 19

CONCLUSION ................................................................................................................... 20

11

TABLE OF AUTHORITIES

Cases A!fred L Snapp & Son, Inc. v. Puerto Rico,

458 u.s. 592 (1982) ......................................................................................................... 15 Am. Elec. Power Co., Inc. v. Connecticut,

131 S. Ct. 2527 (2011) ..................................................................................................... 12 Am. Petroleum Ins!. v. SEC,

714 F.3d 1329 (D.C. Cir. 2013) ..................................................................................... 15 Am. Pub. Gas Ass 'n v. Fed. Power Comm 'n,

543 F.2d 356 (D.C. Cir. 1976) ........................................................................................ 16 Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm 'n,

461 u.s. 375 (1983) ......................................................................................................... 10 Cobell v. Kempthorne,

455 F.3d 301 (D.C. Cir. 2006) .......................................................................................... 6 FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................................................................................... 6 Gregory v. Ashcroft,

501 U.S. 452 (1991) ......................................................................................................... 10 *In re EPA, Nos. 15-3799/3822/3853/3887,-- F.3d --, --,2015 WL 5893814

(6th Cir. Oct. 9, 2015) ............................................................................................... 19, 20 Jacksonville Port Auth. v. Adams,

556 F.2d 52 (D.C. Cir. 1977) .......................................................................................... 20 Kansas v. United S fates,

249 F.3d 1213 (1Oth Cir. 2001) ...................................................................................... 15 King v. B14nvel!,

135 S. Ct. 2480 (2015) ............................................................................................... 10, 11 l'vfichigan v. EPA,

135 S. Ct. 2699 (2015) ............................................................................................. 2, 3, 12 *New Jersry v. EPA,

517 F.3d 574 (D.C. Cir. 2008) .................................................................................. 12, 14 New Motor ·vehicle Bd. of Calif. v. Om'n W Fox Co.,

434 U.S. 1345 (1977) ....................................................................................................... 15 Odebrecht Constr., Inc. v. Secy, Fla. Dep't ofTransp.,

715 F.3d 1268 (11th Cir. 2013) ...................................................................................... 17 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n,

461 U.S. 190 (1983) ................................................................................................... 10, 11 SEC v. Chenery Corp.,

318 U.S. 80 (1943) ........................................................................................................... 12

111

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) .......................................................................................... 7

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ......................................................................................................... 17

Union Elec. Co v. EPA, 427 U.S. 246 (1976) ........................................................................................................... 7

* U til. Air. Regulatory Gtp. v. EPA, 134 S. Ct. 2427 (2014) ......................................................................................... 6, 8, 9, 13

Wash. Metro. Area Transit Comm'n v. Holidqy Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) .......................................................................................... 6

Statutes 16 U.S.C. § 824 ..................................................................................................................... 10 * 42 U.S.C. § 7411 ................................................................ 1, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14 42 U.S.C. § 7412 .............................................................................................. 4, 5, 12, 13, 14 5 U.S.C. § 705 ......................................................................................................................... 1

Regulations 69 Fed. Reg. 4,652 0 an. 30, 2004) ...................................................................................... 12 70 Fed. Reg. 15,994 (Mar. 29, 2005) .................................................................................. 12 73 Fed. Reg. 44,354 Ouly 30, 2008) ................................................................................ 3, 13 77 Fed. Reg. 9,304 (Feb. 16, 2012) ..................................................................................... 12 80 Fed. Reg. 64,510 (Oct. 23, 2015) ..................................................................................... 8

Other Authorities Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970) ........... 3 Clean Energy Jobs & Am. Power Act, S. 1733, 111 th Cong. (2009) ............................... 9 EPA, Air Emissions from Municipal Solid Waste Landfills,

Pub. No. EPA-453/R-94-021 ............................................................................. 12, 14, 15 Pub. L. No. 101-549, § 108(g), 104 Stat. 2399 (1990) ...................................................... 14 Pub. L. No. 101-549, § 302(a), 104 Stat. 2399 (1990) ...................................................... 14 Revisor's Note, 42 U.S.C. § 7411 ....................................................................................... 14

* Authorities upon which we chiefly rely are marked with asterisks.

1V

Act (or CAA)

BSER

EPA

PERC

FPA

MWh

Power Plan

GLOSSARY

Clean Air Act

Best system of emission reduction

United States Environmental Protection Agency

Federal Energy Regulatory Commission

Federal Power Act

:Megawatt hour

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015)

v

This Court should issue a stay, and expedite consideration of the Petition For

Review, 1 because the States are being immediately and irreparably harmed by EPA's

illegal effort to force States to reorder their electrical generation systems.2

This case involves an unprecedented, unlawful attempt by an environmental

regulator to reorganize the nation's energy grid. Relying on a rarely used section of

the Clean Air Act ("CAA"), 42 U.S. C. § 7 411 (d), EPA has adopted a final rule, 80

Fed. Reg. 64,662 (Oct. 23, 2015) (the "Power Plan"), that will "transfor[m] ... the

domestic energy industry."3 The Power Plan rests on EPA's claim that it may

disfavor and phase out certain kinds of energy generation, and force the States to

reorganize how they produce, transmit, and consume electricity. But as an

environmental regulator, EPA has vastly overstepped its authority by seeking to pick

winners and losers in the energy field, and then requiring the States to take part in this

unlawful regime. Further, EPA lacks expertise in regulating the energy grid, an area

that is primarily the responsibility of the States and, to a more limited extent, the

Federal Energy Regulatory Commission ("PERC").

1 The States respectfully request an expedited briefing schedule that would allow oral argument to take place in Spring 2016, before the end of this Court's term. 2 On August 5 and 20, 2015, several of the States filed applications with EPA asking for an immediate stay of the Rule, under 5 U.S.C. § 705. EPA informed some States that the agency would not be granting the relief requested. On September 9, 2015, this Court denied several States' petition under the All Writs Act for a stay before publication of the Power Plan in the Federal Register. No. 15-1277, ECF 1572185. The States have informed EPA's counsel by telephone about the present motion. 3 White House Factsheet, Exh. Bat 1.

In addition to exceeding its authority, EPA is imposing immediate and

irreparable harms upon the States. In the Power Plan, EPA set a timeline intended to

force the States and other entities to make irreversible decisions before judicial review

concludes. Less than eleven months remain for States to draft and submit either a

State Plan or a detailed request for an extension. Even with an extension, State Plans

are due just two years later. To meet these deadlines, each State must begin taking

immediate steps to determine whether and how it will: reorganize its electrical

generation, transmission, and distribution system; decommission coal generation;

mandate the use of natural gas generation while imposing strict carbon dioxide

emissions limits on that generation; adopt a cap-and-trade regime; radically increase

investment in new renewable energy plants; and establish backup generation. This

will involve significant legislative and regulatory changes, and massive taxpayer

expenditures that can never be recouped. \Vithout a stay, when the Power Plan is

vacated as unlawful, EPA will be able to boast that "the majority of [States and]

power plants are already in compliance or well on their way to compliance,"4 just as it

did after recently losing in lvfichigan v. EPA, 135 S. Ct. 2699 (2015).

4 https: I lblog.epa.gov lblogl 2015 I 06 I in-perspective-the-supreme-courts-mercuryand-air-toxics-rule-decision/.

2

BACKGROUND

I. Statutory Overview

In 1970, Congress enacted Section 111 of the CAA, entitled "standards of

performance for new stationary sources." Clean Air Act Amendments of 1970, Pub.

L. No. 91-604, § 111, 84 Stat. 1676, 1683. The primary focus of Section 111 is the

regulation of emissions from "new stationary sources." I d. EPA has employed this

authority "for more than 70 source categories and subcategories ... [including] fossil

fuel-fired boilers, incinerators, sulfuric acid plants .... " 73 Fed. Reg. 44,354, 44,486-

87 nn.239 & 242 Quly 30, 2008). Each of these regulations of new sources involves a

technology-forcing provision, which requires new stationary sources to adopt

"adequately demonstrated" pollution-control technologies. 42 U.S.C. § 7411.

Section 111 (d) provides a significantly more limited program for State-based

regulation of emissions from existing sources. If various preconditions are met, EPA

may require States to establish "standards of performance" for existing sources. 42

U.S.C. § 7411 (d)(1)(B). A standard of performance for an air pollutant from an

individual source must "reflectO the degree of emission limitation achievable through

the application of the best system of emission reduction which (taking into account

the cost of achieving such reduction and any nonair quality health and environmental

impact and energy requirements) the Administrator determines has been adequately

demonstrated." Id. § 7411(a)(1). EPA has lawfully invoked Section 111(d) only five

times, and just once in the last 25 years. 80 Fed. Reg. at 64,703.

3

Section 111 (d) strictly circumscribes EPA's authority by prohibiting EPA from

enacting standards for "any air pollutant ... emitted from a source category which is

regulated under [Section 112 of the CAA]." 42 U.S.C. § 7411(d)(1)(A) (hereinafter

"Section 112 Exclusion"). The Exclusion reflects the significant changes Congress

made in 1990 to expand Section 112, a frequently used program under which EPA

establishes standards for "hazardous" pollutant emissions from a particular source

category. Congress decided in 1990 that if EPA regulates an existing source under the

newly expanded Section 112 program, "any air pollutant" emitted from that source

may not be regulated under Section 111 (d)'s state-by-state standards.

II. The Final Power Plan

Signed by the Administrator on August 3, 2015, and published on October 23,

2015, the Power Plan has three features that are relevant for this stay motion.

First, the Power Plan establishes carbon dioxide emission levels for each State

based upon three so-called "building blocks": (1) altering coal-fired power plants to

increase efficiency; (2) substituting natural gas combined cycle generation for

generation from coal; and (3) substituting generation from low or zero-carbon energy

generation, such as wind and solar, for generation from fossil fuels. 80 Fed. Reg. at

64,745. Blocks 2 and 3 do not directly regulate emissions. Rather, they substitute for

the energy lost by reducing generation from sources that EPA disfavors. EPA

erroneously asserts that this reorganizing of the mix of electric generation across the

nation constitutes the statutory "best system of emission reduction" ("BSER"), 42

4

U.S.C. § 7411(a)(1), claiming that the agency has the authority to "shiftO generation

from dirtier to cleaner sources." 80 Fed. Reg. at 64,726.

Second, EPA argues that it can regulate power plants under Section 111 (d), even

though those plants are regulated under Section 112. The Section 112 Exclusion

prohibits EPA from regulating a source category under Section 111 (d) where that

source category is already "regulated under [Section 112] ." § 7411(d)(1)(A).

Abandoning its position of the last 20 years, EPA now claims that "the phrase

'regulated under section 112' refers only to the regulation of 0 emissions [of pollutants

actually regulated under Section 112]." 80 Fed. Reg. at 64,714. And because EPA has

not (yet) decided to regulate carbon dioxide under Section 112, EPA asserts that it

may impose carbon dioxide limitations under Section 111 (d) on power plants

notwithstanding its Section 112 regulation of those same plants. !d.

Third, EPA requires States to comply with the Power Plan on an aggressive

schedule. A State Plan or detailed request for extension is due by September 2016.

Even with an extension, a State Plan must be submitted by September 2018. 80 Fed.

Reg. at 64,669. According to EPA, the hard deadlines are meant "to assure that states

begin to address the urgent needs for reductions quickly." 80 Fed. Reg. at 64,675. As

outlined below, complying with these deadlines will disrupt sovereign functions,

require massive expenditures of State time and resources, and irreparably harm the

States' power and renewable energy programs.

5

ARGUMENT

All four traditional factors favor a stay, which is appropriate "to preserve the

status quo pending the outcome of litigation." Cobell v. Kempthorne, 455 F.3d 301, 314

(D.C. Cir. 2006). The States are likely to prevail on the merits, they will be irreparably

harmed if relief is withheld, no others are likely to suffer substantial harm if relief is

granted, and the public interest favors a stay. See Wash. Metro. Area Transit Comm'n v.

Ho/idqy Tours, Inc., 559 F.2d 841, 842-43 (D.C. Cir. 1977).

I. Petitioners Are Likely To Prevail On The Merits.

A. Section 111(d) Does Not Authorize EPA To Force The States To Restructure The Electrical Grid.

1. EPA has exceeded its authority under Section 111 (d), especially in light of

the clear-statement rule set forth in UARG v. EPA, 134 S. Ct. 2427 (2014). In

UARG, the Supreme Court rejected an expansive EPA regulation of carbon dioxide

emissions, holding that "[w]hen an agency claims to discover in a long-extant statute

an unheralded power to regulate a significant portion of the American economy, we

typically greet its announcement with a measure of skepticism." Id. at 2444 (citation

omitted). Congress, the Court explained, is expected to "speak clearly if it wishes to

assign to an agency decisions of vast 'economic and political significance."' Id.

(quoting FDA v. Brown & Williamson Tobacco Cotp., 529 U.S. 120, 160 (2000)). EPA

now claims to have found in Section 111(d), a long-extant provision, the power to

transform the nation's energy grid. But the text of Section 111 (d) does not begin to

6

suggest that EPA may make such "decisions of vast economic and political

significance," much less "clearly" authorize it to do so.

Section 111 (d) limits EPA to requiring States-if certain prerequisites are

met-to establish "standards of performance for any existing source" that ret1ect

emission reductions through improvements to a source's performance. 42 U.S.C.

§ 7411(d)(1)(A). A "standard of performance" must be "appl[icable] ... to aD

particular source," id. § 7411(d)(1)(B), and set forth "a standard for emissions of air

pollutants which reflects the degree of emission limitation achievable through the

application of the best system of emission reduction," id. § 7411(a)(1). By its plain

terms, Section 111 (d) concerns the reduction of emissions by improving a source's

"performance" through measures that can be "appli[ed]" to the source. Section

111 (d) is thus simply one of the CAA's many requirements for the adoption of

"pollution control devices," Union Elec. Co v. EPA, 427 U.S. 246, 257 (1976), or other

measures that "hold the industry to a standard of improved design and operational

advances," Sierra Club v. Costle, 657 F.2d 298, 364 (D.C. Cir. 1981).

The Power Plan far exceeds the authority Congress granted to EPA under

Section 111 (d). The Plan's building blocks 2 and 3 are not measures that can be

applied to an individual source's "performance." Rather than imposing "improved

design and operational advances" on the source at issue, the Plan imposes measures

that favor renewable generation as substitutes for fossil-fuel-fired energy. 80 Fed. Reg.

at 64,745. The Plan goes well beyond improving efficiency at individual existing

7

power plants; it attempts to regulate each State's energy generation mix. That is why

the emission targets EPA claims are achievable for existing power plants are more

restrictive than EPA's new power plant targets, which are based on technologies

applied at each plant. Compare 80 Fed. Reg. at 64,707 (1,305 lb C02/NIWh), with 80

Fed. Reg. 64,510, 64,513 (Oct. 23, 2015) (1,400 lb C02/MWh); 80 Fed. Reg. at 64,707

(771lb C02/MWh), with 80 Fed. Reg. at 64,513 (1,000 lb C02/MWh).

To justify its novel, unauthorized approach, EPA argues that Section 111 (d)

empowers the agency to set emissions targets based on any measures achievable by a

source's "owners and operators," including those measures that "shiftO generation

from dirtier to cleaner sources" within the "complex machine" energy grid. 80 Fed.

Reg. at 64,726, 64,767-68. But EPA's argument cannot be squared with either the text

of Section 111 (d) or UARG. Section 111 (d) provides EPA with authority to regulate

emissions only by applying pollution control technology or operational and design

advances that improve a source's "performance." 42 U.S.C. § 7411(d)(1)(B). It does

not permit EPA to regulate the electric grid as a "complex machine," favor certain

methods of energy generation as allegedly "cleaner," or premise emission reductions

on the notion that the owners of a source of emissions can pay their "cleaner"

competitors to take their customers. 80 Fed. Reg. at 64,726, 64,767-68. Indeed, on

EPA's reasoning, the agency could mandate that States require all coal-fired power

plants to close, if the power grid could produce sufficient substitute electricity from

8

sources designated by EPA as "cleaner." 80 Fed. Reg. at 64,726. That is not a

"standard of performance," but one of non-performance.

At a minimum, it is hardly "clearO" from the text of Section 111(d) that

Congress intended that rarely-used provision to transform EPA from an

environmental regulator into the nation's most powerful central planner, making

"decisions of vast economic and political significance." UARG, 134 S. Ct. at 2444

(quotations omitted). Under EPA's view, it has authority under Section 111 (d) to pick

winners and losers not only among different sources of electricity generation, but

"any" existing stationary source categories, 42 U.S.C. § 7411(d). EPA cannot show

the clear statement required under UARG for such a capacious assert1on of authority.

EPA's repeated claim that its interpretation has historical support in Congress's

authorization of a cap-and-trade regime for sulfur-dioxide emissions under Title IV of

the CAA, see 80 Fed. Reg. at 64,665, 64,734, 64,761, 64,770-71, 64,778, only

underscores the Power Plan's illegality and illustrates the manner in which the agency

has sought to evade the legislative process. Congress understood that it was necessary

to enact the detailed Title IV regime precisely because such a regime must come from

a "clear" congressional directive. UARG, 134 S. Ct. at 2444. Here, in contrast,

Congress rejected the present Administration's effort to pass Title IV-like cap-and

trade authority over carbon dioxide emissions from fossil fuel-fired power plants. See

Clean Energy Jobs & Am. Power Act, S. 1733, 111th Cong. (2009). Under EPA's

9

reading of Section 111 (d), the Administration's efforts to seek congressional

authorization for a carbon dioxide cap-and-trade regime were entirely unnecessary.

2. The Power Plan's illegality is reinforced by the statutory canons that an

agency is afforded no deference when it seeks to invade "areas traditionally regulated

by the States," Gregory v. Ashcrrift, 501 U.S. 452, 460 (1991), or asserts power where it

lacks "expertise," King v. Bunveff, 135 S. Ct. 2480, 2489 (2015).

The authority and expertise to regulate the electrical grid lies primarily with the

States and, to a more limited degree, with FERC. States' power over the intrastate

generation and consumption of electricity is "one of the most important functions

traditionally associated with the police powers of the States." Ark. Efec. Coop. Corp. v.

Ark. Pub. Serv. Comm'n, 461 U.S. 375, 377 (1983). Congress recognized this State

authority in the Federal Power Act ("FPA"), which respects the States' "traditional

responsibility in the field of regulating electrical utilities for determining questions of

need, reliability, cost and other related state concerns." Pac. Gas & Efec. Co. v. State

Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 205 (1983). The FPA confines

federal jurisdiction over electricity markets to "the transmission of electric energy in

interstate commerce and the sale of such energy at wholesale in interstate commerce,"

and it assigns that limited authority to FERC, not EPA. 16 U.S.C. § 824(a).

EPA's view of Section 111 (d) runs roughshod over States' sovereign rights,

while asserting EPA authority over an area in which the agency has admitted it lacks

expertise. By setting emission targets premised on disfavoring coal and reordering of

10

electricity generation for intrastate use, the Power Plan encroaches on the States'

authority to independently assess the intrastate "[n]eed for new power facilities, their

economic feasibility, and rates and services." Pac. Gas, 461 U.S. at 205; see also Lloyd

Decl. ~~ 9-93; Nowak Decl. ~ 7; McClanahan Decl. ~~ 5, 11; Bracht Decl. ~ 13. In

addition, EPA supports its reading of Section 111 (d) with the agency's understanding

of the electrical grid as a "complex machine." 80 Fed. Reg. at 64,725. But EPA has

no "expertise" as to the functioning of this grid, King, 135 S. Ct. at 2489, as the agency

itself has acknowledged. See Melanie King, EPA Office of Air Energy Strategies

Division, Response to Public Comments in Dkt. EPA-HQ-OAR-2008-0708, at 50

Gan. 14, 2013) ("The issues related [to] management of energy markets and

competition between various forms of electric generation are far afield from EPA's

responsibilities for setting standards under the CAA.").

In sum, Congress did not delegate to EPA the authority to regulate the electric

grid, and any claim by EPA to deference in interpreting Section 111 (d) to reach such a

result, see 80 Fed. Reg. at 64,768, is contrary to controlling caselaw.

B. The Section 112 Exclusion Prohibits The Power Plan.

The Section 112 Exclusion prohibits EPA from regulating under Section

111 (d) "any air pollutant" emitted from a "source category which is regulated under

[Section 112]." 42 U.S.C. § 7411(d)(1)(A)(i). As EPA has repeatedly admitted,

starting with the Clinton Administration and continuing to the proposed version of

the Power Plan itself, this text in the U.S. Code means what it says: EPA may not

11

require States to regulate a source category under Section 111 (d) when EPA already

regulates that source category under Section 112.5 Or, as the Supreme Court has

explained, "EPA may not employ [Section 111 (d)] if existing stationary sources of the

pollutant in question are regulated ... under [Section 112]." Am. Elec. Power Co.) Inc. v.

Connecticut, 131 S. Ct. 2527, 2537 n.7 (2011).

Under EPA's own longstanding reading of the text in the U.S. Code, the

Exclusion is an independent and outright bar on the Power Plan. EPA states that it

has issued the Power Plan as a regulation of fossil fueled electric generation under

Section 111 (d). 80 Fed. Reg. at 64,662. But given that such power plants are

extensively regulated under Section 112, see 77 Fed. Reg. 9,304 (Feb. 16, 2012), the

Exclusion forecloses EPA from invoking Section 111 (d) to doubly regulate those

same plants. This Court should strike down the Plan for violating the Exclusion, just

as it did the last time EPA attempted to regulate power plants under Section 111 (d).

See New ]ersry v. EPA, 517 F.3d 574, 583-84 (D.C. Cir. 2008).6

5 See) e.g., EPA 2014 Legal Memo at 26; Brief of EPA, New Jersry v. EPA, No. 05-1097, 2007 WL 2155494 (D.C. Cir. July 23, 2007); 70 Fed. Reg. 15,994, 16,031 (Mar. 29, 2005); 69 Fed. Reg. 4,652, 4,685 Qan. 30, 2004); EPA, Air Emissions from Municipal Solid Waste Landfllls, Pub. No. EPA-453/R-94-021, 1-5, 1-6 (1995) ("1995 EPA Landfill Memo"). 6 This Court's forthcoming decision on remand from lv1ichigan v. EPA, 135 S. Ct. 2699 (2015), reviewing EPA's Section 112 regulation of power plants, has no impact on the present challenge because agency action can be upheld only on the "grounds upon which [EPA] itself based its action." SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).

12

In an effort to escape this result, EPA has abandoned its longstanding

interpretation of the statutory text and adopted a new, impermissible interpretation of

the Exclusion's phrase "regulated under [Section 112]." EPA now argues that the

Exclusion "only exclud[es] the regulation of D emissions under CAA section 111 (d)

[that are actually regulated under Section 112] and only when th[e] source category [at

issue] is regulated under CAA section 112." 80 Fed. Reg. at 64,714. This is

indefensible. EPA would rewrite the plain terms of the prohibition against Section

111 (d) regulation of any "source category which is regulated under Section 112" into a

prohibition against Section 111 (d) regulation of any "source category which is

regulated under [Section 112], where the air pollutant is a hazardous air pollutant actuai!J

regulated under Section 112." EPA has no authority to "rewrite clear statutory terms to

suit its own sense of how the statute should operate." UARG, 134 S. Ct. at 2446.

EPA's argument that its rewrite is necessary to avoid a regulatory "gap" 1s

based on an understanding of the CAA that predates the substantial amendments to

that statute in 1990. 80 Fed. Reg. at 64,711 (discussing the 1970 CAA). That year,

Congress enacted the present Exclusion and also vastly expanded the scope of Section

112, such that EPA has never identified any pollutant that could be covered under

Section 111 (d) but not the post-1990 version of Section 112-including carbon

dioxide. See 73 Fed. Reg. 44,354, 44,493-95 Quly 30, 2008) (EPA concluding that

carbon dioxide falls under both the Section 111 and Section 112 definitions of "air

pollutants"). Notably, EPA has used Section 111(d) for only two regulations since

13

1990, and both regulations were consistent with the Exclusion's plain terms, as they

appear in the U.S. Code. In the first, EPA sought to regulate power plants under

Section 111 (d) only after the agency attempted to deregulate those power plants under

Section 112. See New Jersry, 517 F.3d at 583-84. In the second, the agency explained

that the Exclusion did not apply because the source category was not "actually being

regulated under section 112." 1995 EPA Landfill Memo, at 1-6.

Finally, EPA's new approach confirms the States' argument that EPA's

alternative, "two versions" approach to the Exclusion lacks merit. Once EPA's

primary attempt to escape the Exclusion, the "two versions" approach relied upon the

fact that the 1990 Statutes at Large included two amendments to the Exclusion-one

clerical, one substantive. EPA 2014 Legal Memo at 23.7 The clerical amendment

made a "conforming" edit to the pre-1990 Exclusion, updating a cross-reference in

light of other revisions to the CAA in 1990. Pub. L. No. 101-549, § 302(a), 104 Stat.

2399 (1990). The substantive amendment revised the scope of the Exclusion entirely,

and in the process eliminated the cross-reference updated by the clerical amendment.

Pub. L. No. 101-549, § 108(g), 104 Stat. 2399 (1990). Having been rendered moot by

the substantive amendment, the clerical amendment was excluded from the U.S.

Code, under uniform practice. See Revisor's ~ote, 42 U.S.C. § 7411. But EPA took

the remarkable position that the obsolete clerical amendment created a version-in-

7 http:/ /www2.epa.gov/ sites/production/files/2014-06/ documents/20140602-legalmemorandum.pdf.

14

exile of the Exclusion-retaining the pre-1990 scope of the Exclusion-that

produced an ambiguity EPA was entitled to resolve. EPA 2014 Legal Memo at 23.

In response to the States' criticism, this position is now relegated to a footnote.

80 Fed. Reg. at 64,714 n.294. Notably, EPA points to no case or decision by any

court or agency giving meaning to such a clerical error, and has no response to the

dozens of examples uniformly treating such errors as irrelevant. See Letter of 17

States, EPA-HQ-OAR-2013-0602-25433, at *5-6 (posted Dec. 15, 2014). As this

Court has made clear, these routine errors, which are common in modern, complex

legislation, do not create any statutory "ambiguity." See Am. Petroleum Inst. v. SEC, 714

F.3d 1329, 1336-37 (D.C. Cir. 2013). In fact, that is the view the Clinton EPA took

just five years after the 1990 Amendments. 1995 EPA Landfill Memo at 1-5.

II. The States Will Suffer Irreparable Injury Absent A Stay.

Absent an immediate stay, the Power Plan will impose immense sovereign and

financial harms upon the States, on a scale exceeding any environmental regulations

the States have ever faced. Gross Decl. ,-r 3; Stevens Decl. ,-r 8; Martin Decl. ,-r 8.

A. The Power Plan will inflict upon the States significant sovereign harms,

which are irreparable as a matter of law. See New Motor Vehicle Bd rif Calf/ v. Orrin W

Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); Kansas v. United

States, 249 F.3d 1213, 1227-28 (10th Cir. 2001); A!fred L Snapp & Son) Inc. v. Puerto

Rico, 458 U.S. 592, 601 (1982). The Power Plan will require the States immediately to

debate, design, and enact significant legislative and regulatory changes to programs

15

governing intra-state electricity markets. For example, many States will need to enact

legislation in the next 1 to 2 years to ensure the growth in renewable energy sources

and natural gas that will be needed to be in place by 2022 to enable compliance with

the Power Plan's stringent targets. Lloyd Decl. ,-r,-r 78-81; Nowak Decl. ,-r 17; Bracht

Decl. ,-r 12; McClanahan Decl. ,-r 11; Martin Decl. ,-r 8. States will also need to amend

innumerable rules, including those that might prevent their state public utility

commissions from mitigating the Plan's negative market and energy reliability impacts.

Lloyd Decl. ,-r,-r 88-93; Bracht Decl. ,-r,-r 12-13; Nowak Decl. ,-r,-r 7, 16; Hodanbosi Decl.

~,-r 5, 8; McClanahan Decl. ,-r 4; Hyde Decl. ~ 35; Hays Decl. ,-r,-r 5, 9.

This will undermine the States' sovereign choices. The changes will displace

the policies States have carefully crafted over decades concerning the regulation of

electrical utilities and questions of need, reliability, and cost. Lloyd Decl. ~~ 31-46, 87.

Once made, many of these changes will be "impossible" to reverse. Lloyd Decl. ,-r 47;

McClanahan Decl. ,-r 11; Nowak Decl. ,-r 12; Bracht Decl. ,-r,-r 11, 14; Mroz Decl. ,-r,-r 3,

8. The time spent by legislators and state agencies to satisfy EPA's unlawful mandate

will limit the finite time that they can devote to their own sovereign priorities, a

problem exacerbated by the fact that many state legislatures sit briefly every year or

every other year. Lloyd De d. ~,-r 39, 7 5, 80; Parfitt Decl. ,-r 1 0; Easterly Decl. ,-r 9.

B. The Power Plan will also require massive and immediate efforts by State

energy and environmental regulators, imposing irreparable financial harms upon the

States. See Am. Pub. Gas Ass'n v. Fed. Power Comm'n, 543 F.2d 356, 358 (D.C. Cir.

16

1976); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J.,

concurring); Odebrecht Constr.) Inc. v. Sec) Fla. Dep)t rf Transp., 715 F.3d 1268, 1289

(11th Cir. 2013). These efforts will cost the States tens of thousands of unrecoverable

hours and millions of unrefundable dollars. See) e.g., Durham Decl. ~ 6 (7,100 hours

of 9 senior staff members); McClanahan Decl. ~ 6 ($500,000 to $1 million on

consultants alone); Gore Decl. ~ 6 ($760,000 per year).

Just a few examples of State regulators' responsibilities under the Power Plan

illustrate the point. To design State Plans that shift the States' energy grids away from

coal-fired generation, States will need to conduct interagency analyses and then

consult with stakeholders to determine what changes can plausibly be made to

increase natural gas and add renewable energy generation. Nowak Decl. ~~ 4-13;

McClanahan~~ 4-10; Martin Decl. ~~ 8-9. This process will include an assessment of

the forms of energy available to the State, whether developing more new energy

sources is feasible, and what changes to state law would be required. Bracht Decl. ~~

2, 8, 10, 12; McClanahan Decl. ~~ 5, 7 -8; Hodanbosi Decl. ~ 5; Gore Decl. ~~ 5-6;

Lloyd Decl. ~~ 47-48, 82-87; Martin Decl. ~ 8. States will then need to undertake to

change state laws and regulations governing their electricity markets. Gustafson Decl.

~ 15. And since the Power Plan contemplates interstate regimes, States will need to

engage in time-consuming interstate consultation. Lloyd Decl. ~~ 85-86; Bracht Decl.

~ 14; Stevens Decl. ~ 10; Macy ~ 5; McClanahan Decl. ~ 14.

17

C. Critically, the regulatory and statutory steps that the States will need to take

must begin "immediately." Hyde Decl. ~ 10; Lloyd Decl. ~~ 86, 93; Stevens Decl.

~~ 5-10; Thomas Decl. ~ 7; Bracht Decl. ~~ 7-8. As EPA explained, the Plan's

submission deadlines-the first in September 2016, and the last in September 2018-

are based on EPA's view of "the need to begin promptly what will be a lengthy effort

to implement the requirements of' the Rule. 80 Fed. Reg. at 64,855.

By September 2016, the States must submit their Plans or seek extensions by:

(1) identifying the State Plans that are "under consideration"; (2) providing an

"appropriate explanation" for the extension; and (3) describing how they have

provided for "meaningful engagement" with the public. 80 Fed. Reg. at 64,856. Even

the steps for an extension requires immediate and substantial expenditures, as

deciding between the Rule's various options-outlined in 500 pages, 80 Fed. Reg. at

64,826-64,914--involves a massive effort by each State, as described in the States'

declarations. Hyde Decl. ~ 9; Stevens Decl. ~~ 5-10; McClanahan Decl. ~~ 4-10;

Bracht Decl. ~~ 2, 7-8, 12; Spencer Decl. ~ 4; Nowak Decl. ~~ 4-13; Hodanbosi Decl.

~~ 5-6; Gore Decl. ~~5-6; Martin Decl. ~ 8. Awaiting completion of this litigation to

begin these efforts will likely result in the States missing the September 2016 deadline,

which would permit EPA to impose its own Federal Plan, taking over those States'

sovereign functions over their own energy grids. 80 Fed. Reg. at 64,856-57.

Moreover, States that intend to seek an extension until September 2018 cannot

simply do the work required for the extension and then await completion of this

18

litigation to continue work on their Plans. The Rule is the most complex rule the

States have faced, requiring some States 3 to 5 years to finish their State Plans. Gross

Decl. ~ 3; Stevens Decl. ~ 8. Given that the massive changes required by the Rule can

take years, States will need to act well before the end of this litigation if they have any

hope of meeting the September 2018 deadline. Lloyd Decl. ~ 86; Hyde Decl. ~~ 9, 20,

22; Martin Decl. ~ 7. Notably, the Rule requires States to submit an "update" to EPA

by September 2017, describing "the type of approach it will take in the final plan

submittal and to draft legislation or regulations for this approach." 80 Fed. Reg. at

64,859. Crafting such legislation and regulations is a complex endeavor, which will

divert sovereign resources. States cannot wait until litigation is completed to begin

these time-consuming tasks. Lloyd Decl. ~ 93; Hyde Decl. ~ 31; Martin Decl. ~ 7, 8.

III. The Balance Of Harms And The Public Interest Strongly Favor A Stay.

As the Sixth Circuit recently explained in staying another far-reaching EPA

rule, "the sheer breadth of the ripple effects caused by the RuleD ... counsels strongly

in favor of maintaining the status quo for the time being." In re EPA, Nos. 15-

3799/3822/3853/3887, -- F.3d --, --, 2015 WL 5893814, at *3 (6th Cir. Oct. 9, 2015).

EPA designed the Power Plan to have massive, immediate "ripple effects" throughout

the energy economy, including forcing significant early retirement of coal-fired power

plants as early as 2016. See Energy Ventures Analysis, "Evaluation of the Immediate

Impact of the Clean Power Plan Rule on the Coal Industry," at 16, 66-68 (Sept.

19

2015).8 These retirements will reduce the supply of one of the most reliable sources

of energy, resulting in higher energy prices, threatened blackouts during periods of

increased demand, and lost jobs. Lloyd Decl. ,-r,-r 31, 33, 41-46. A stay would

"silenceD the whirlwind of confusion that springs from uncertainty about the

requirements of the new Rule and whether they will survive legal testing [while]

honor[ing] the policy of cooperative federalism." In re EPA, 2015 WL 5893814, at *3.

If the Plan's massive obligations are to be imposed upon the States and their citizens,

while fundamentally changing the CAA's "cooperative federalism" regime, id., this

should occur only after this Court has had a full opportunity to review the Plan.

Nor is there any persuasive reason to deny the stay. EPA has repeatedly

missed its own deadlines for issuing the Power Plan, indicating that no harm will

occur from a delay in the implementation of just one of the Administration's cascade

of carbon-dioxide-focused rules. See No. 14-1146, ECF 1540020, ]A 3 (EPA

committing to sign final Power Plan by May 26, 2012). In any event, given that the

Power Plan is illegal, there is no legally cognizable interest in compliance with the

Plan's deadlines. jacksonville Port Auth. v. Adams, 556 F.2d 52, 58-59 (D.C. Cir. 1977).

CONCLUSION

The States respectfully request that the Motion for Stay and for Expedited

Consideration of the Petition for Review be granted.

8 http:/ /www.nma.org/pdf/EVA-Report-Final.pdf

20

Dated: October 23, 2015 Respectfully submitted,

it6' ::> Patrick Morrisey

Attorney General of West Virginia Elbert Lin

Solicitor General Counsel of Record

Misha Tseytlin General Counsel

J. Zak Ritchie Assistant Attorney General

State Capitol Building 1, Room 26-E Tel. (304) 558-2021 Fax (304) 558-0140 Email: [email protected] Counsel for Petitioner State of West Virginia

Is! Scott A. Keller Ken Paxton

Attorney General of Texas Charles E. Roy

First Assistant Attorney General Bernard L. McNamee II

Chief of Staff Scott A. Keller


P.O. Box 12548 Austin, Texas 78711-2548 Tel. (512) 936-1700 Email: Scott.Keller@ texasattorneygeneral.gov Counsel for Petitioner State of Texas

Is! Andrew Brasher Luther Strange

Attorney General of Alabama Andrew Brasher


21

501 Washington Ave. Montgomery, AL 36130 Tel. (334) 590-1029 Email: [email protected] Counsel for Petitioner State of Alabama

Is/ John R. Lopez IV Mark Brnovich

Attorney General of Arizona John R. Lopez IV

Counsel if Record Dominic E. Draye Keith Miller

Assistant Attorneys General Maureen Scott Janet Wagner Janice Alward

Arizona Corp. Commission, Staff Attorneys

1275 West Washington Phoenix, AZ 85007 Tel. (602) 542-5025 Email: [email protected] Counsel for Petitioner Corporation Commission

Is/ Jamie L. Ewing Leslie Rutledge

Attorney General of Arkansas Jamie L. Ewing

Assistant Attorney General Coumel qf Record

323 Center Street, Ste. 400 Little Rock, AR 72201 Tel. (501) 682-5310

Arizona

Email: [email protected] Counsel for Petitioner State of Arkansas

Is! Frederick Yarger Cynthia H. Coffman

Attorney General of Colorado

22

Frederick Yarger Solicitor General Counsel rf Record

1300 Broadway, 1Oth Floor Denver, CO 80203 Tel. (720) 508-6168 Email: [email protected] Counsel for Petitioner State of Colorado

Is/ Allen Winsor Pamela J o Bondi

Attorney General of Florida Allen Winsor

Solicitor General of Florida Counsel rfRecord

Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 Tel. (850) 414-3681 Fax (850) 410-2672 Email: [email protected] Counsel for Petitioner State of Florida

Is/ Britt C. Grant SamuelS. Olens

Attorney General of Georgia Britt C. Grant


40 Capitol Square SW Atlanta, GA 30334 Tel. ( 404) 656-3300 Fax (404) 463-9453 Email: [email protected] Counsel for Petitioner State of Georgia

Is/ Timothyjunk Gregory F. Zoeller

Attorney General of Indiana Timothy Junk

Deputy Attorney General

23

Counsel qfRecord Indiana Government Ctr. South, Fifth Floor 302 West Washington Street Indianapolis, IN 46205 Tel. (317) 232-6247 Email: [email protected] Counsel for Petitioner State of Indiana

Is! Jeffrey A. Chanay Derek Schmidt

Attorney General of Kansas Jeffrey A. Chanay

Chief Deputy Attorney General Counsel of Record

Bryan C. Clark Assistant Solicitor General

120 SW 1Oth Avenue, 3d Floor Topeka, KS 66612 Tel. (785) 368-8435 Fax (785) 291-3767 Email: [email protected] Counsel for Petitioner State of Kansas

Is! Jack Conway Jack Conway

Attorney General of Kentucky Counsel qfRecord

700 Capital Avenue Suite 118 Frankfort, KY 40601 Tel: (502) 696-5650 Email: [email protected] Counsel for Petitioner Commonwealth of Kentucky

Is I Megan K. Terrell James D. "Buddy" Caldwell

Attorney General of Louisiana Megan K. Terrell

Deputy Director, Civil Division Counsel of Record

24

1885 N. Third Street Baton Rouge, LA 70804 Tel. (225) 326-6705 Email: [email protected] Counsel for Petitioner State of Louisiana

Is! Donald Trahan Herman Robinson

Executive Counsel Donald Trahan

Counsel if Record Elliott Vega Louisiana Department of Environmental Quality Legal Division P.O. Box 4302 Baton Rouge, LA 70821-4302 Tel: (225) 219-3985 Fax: (225) 219-4068 Email: Donald.Trahan@La. Gov Counsel for Petitioner State of Louisiana Department of Environmental Quality

Is/ Aaron D. Lindstrom Bill Schuette

Attorney General for the People of Michigan Aaron D. Lindstrom

Michigan Solicitor General Counsel if Record

P.O. Box 30212 Lansing, MI 48909 Tel. (515) 373-1124 Fax (517) 373-3042 Email: [email protected] Counsel for Petitioner State of Michigan

Is/ James R. Layton Chris Koster

Attorney General of Missouri James R. Layton

Solicitor General

25

Counsel qf Record P.O. Box 899 207 W. High Street Jefferson City, Missouri 65102 Tel. (573) 751-1800 Fax (573) 751-0774 Email: [email protected] Counsel for Petitioner State of Missouri

Is/ Dale Schowengerdt Timothy C. Fox

Attorney General of Montana Alan Joscelyn

Chief Deputy Attorney General Dale Schowengerdt

Solicitor General Counsel qf Record

215 North Sanders Helena, Montana 59620-1401 Tel: (406) 444-7008 Email: [email protected] Counsel for Petitioner State of Montana

Is I Justin D. Lavene Doug Peterson

Attorney General of Nebraska Dave Bydlaek

Chief Deputy Attorney General Justin D. Lavene

Assistant Attorney General Counsel qf Record

2115 State Capitol Lincoln, NE 68509 Tel. (402) 471-2834 Email: [email protected] Counsel for Petitioner State of Nebraska

Is/ Robert J. Kinney John J. Hoffman

Acting Attorney General of New Jersey David C. Apy

26

Assistant Attorney General Robert J. Kinney

Deputy Attorney General Counsel rif Record

Division of Law R.J. Hughes Justice Complex P.O. Box 093 25 Market Street Trenton, NJ 08625-0093 Tel. (609) 292-6945 Fax (609)341-5030 Email: [email protected] Counsel for Petitioner State of New Jersey

Is/ Eric E. Murphy Michael DeWine

Attorney General of Ohio Eric E. Murphy

State Solicitor Counsel rif Record

30 E. Broad St., 17th Floor Columbus, OH 43215 Tel. (614) 466-8980 Email:

[email protected] Counsel for Petitioner State of Ohio

Is/James Emory Smith. Jr. Alan Wilson

Attorney General of South Carolina Robert D. Cook

Solicitor General James Emory Smith, Jr.

Deputy Solicitor General Counsel rif Record

P.O. Box 11549 Columbia, SC 29211 Tel. (803) 734-3680 Fax (803) 734-3677 Email: [email protected]

27

Counsel for Petitioner State of South Carolina

Is/ Steven R. Blair Marty J. Jackley

Attorney General of South Dakota Steven R. Blair

Assistant Attorney General Counsel if Record

1302 E. Highway 14, Suite 1 Pierre, SD 57501 Tel. (605) 773-3215 Email: [email protected] Counsel for Petitioner State of South Dakota

Is! Parker Douglas Sean Reyes

Attorney General ofUtah Parker Douglas

Federal Solicitor Counsel ~fRecord

Utah State Capitol Complex 350 North State Street, Suite 230 Salt Lake City, Utah 84114-2320 Email: [email protected] Counsel for Petitioner State of Utah

28

Is/ Delanie M. Breuer Brad Schimel

Attorney General of \X'isconsin Andrew Cook

Deputy Attorney General Delanie M. Breuer Assistant Deputy Attorney General Counsel rf Record

Wisconsin Department of Justice 17 West Main Street Madison, WI 53707 Tel: (608) 267-8901 Email: [email protected] Counsel for Petitioner State of Wisconsin

Is/ Tames Kaste -Peter K. Michael

Attorney General of Wyoming James Kaste

Deputy Attorney General Counsel rf Record

Michael J. McGrady Senior Assistant Attorney General

123 State Capitol Cheyenne, WY 82002 Tel. (307) 777-6946 Fax (307) 777-3542 Email: [email protected] Counsel for Petitioner State of Wyoming

Is! Sam M. Hayes Sam M. Hayes

General Counsel Counsel rf Record

Craig Bromby Deputy General Counsel

Andrew Norton Deputy General Counsel

North Carolina Department of Environmental Quality 1601 Mail Service Center

29

Raleigh, NC 27699-1601 Tel. (919) 707-8616 Email: [email protected] Counsel for Petitioner State of North Carolina Department of Environmental Quality

30

CERTIFICATE OF COMPLIANCE

This motion complies with Federal Rule of Appellate Procedure 21 (d) because

it does not exceed 20 pages, excluding the parts of the motion exempted by 21 (d).

This motion also complies with the typeface requirements of Fed. R. App. P. 32(a)(S)

and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally spaced typeface using Microsoft Word in 14-point

Garamond.

;L~Pz/JJW-Counsel for Petitioner State ofWest Virginia

31

CERTIFICATE OF SERVICE

I certify that on this October 23, 2015, a copy of the foregoing State Petitioners'

lv1otion To Stqy And For Expedited Consideration was transmitted by email on each the

following with their consent:

Eric Hostetler: [email protected]

Norman Rave: norman.rave@usdoj .gov

Scott Jordan: jordan. scott@epa. gov

Howard Hoffman: [email protected]

yuW--J. ~futchie Counsel for Petitioner State of West Virginia

32

ORAL ARGUMENT NOT SCHEDULED

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATE OF WEST VIRGINIA, et al., Petitioners,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

No. 15-1363 (and consolidated cases)

Opposition to Petitioners’ Motions for a Stay On Behalf of States of New York, California (by and through Governor Edmund G.

Brown Jr., the California Air Resources Board, and Attorney General Kamala D. Harris), Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Maryland (by and

through Attorney General Brian E. Frosh), Minnesota (by and through the Minnesota Pollution Control Agency), New Hampshire, New Mexico, Oregon, Rhode Island,

Vermont, Washington, the Commonwealths of Massachusetts and Virginia, the District of Columbia, the Cities of Boulder, Chicago, New York, Philadelphia, and

South Miami, and Broward County, Florida

KAMALA D. HARRIS Attorney General of California M. ELAINE MECKENSTOCK JONATHAN WIENER Deputy Attorneys General California Department of Justice 1515 Clay Street, 20th Floor Oakland, CA 94612 MAURA HEALEY Attorney General of Massachusetts MELISSA A. HOFFER CHRISTOPHE COURCHESNE Assistant Attorneys General Environmental Protection Division One Ashburton Place Boston, MA 02108

ERIC T. SCHNEIDERMAN Attorney General of New York BARBARA D. UNDERWOOD Solicitor General STEVEN C. WU Deputy Solicitor General BETHANY A. DAVIS NOLL KAREN LIN Assistant Solicitors General MICHAEL J. MYERS MORGAN A. COSTELLO BRIAN LUSIGNAN Assistant Attorneys General Environmental Protection Bureau The Capitol Albany, NY 12224 (518) 776-2400

December 8, 2015 Additional Counsel on Signature Pages

USCA Case #15-1363 Document #1587450 Filed: 12/08/2015 Page 1 of 39

i

TABLE OF CONTENTS

PRELIMINARY STATEMENT ........................................................................................... 1

ARGUMENT ......................................................................................................................... 2

I. THE CLEAN POWER PLAN IS A LAWFUL EXERCISE OF EPA’S AUTHORITY UNDER SECTION 111(d)’S COOPERATIVE FEDERALISM STRUCTURE. ................................................. 2

A. The Clean Power Plan Gives States Substantial Leeway to Decide Whether and How to Participate in Reducing Emissions. .......................... 2

B. The Clean Power Plan Respects, Rather than Undermines, State Authority Over Energy. .................................................................................... 7

II. STATE PETITIONERS HAVE NOT DEMONSTRATED IRREPARABLE HARM. .......................................................................................... 11

A. The Clean Power Plan Does Not Impose Any Burdens that Justify a Stay. ..................................................................................................... 11

B. State Petitioners’ Asserted Burdens Are Neither “Certain and Great” Nor Imminent Enough to Warrant a Stay. ..................................... 14

III. A STAY IS NOT IN THE PUBLIC INTEREST. ............................................... 18

A. A Stay that Results in Delays to the Clean Power Plan’s Deadlines Will Harm State Intervenors. ......................................................................... 18

B. A Stay Could Endanger United States’ Ability to Secure International Reductions in Greenhouse Gas Emissions. ......................... 20

CONCLUSION ...................................................................................................................... 20


ii

TABLE OF AUTHORITIES

CASES Page(s) * Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) ................................................................................... 20 Ambach v. Bell, 686 F.2d 974 (D.C. Cir. 1982) ................................................................................... 18 * Am. Elec. Power v. Connecticut, 131 S. Ct. 2527 (2011) ...................................................................................... 1, 11fn8 Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281 (3d Cir. 2015) ................................................................................. 11fn8 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997) ............................................................................... 13fn11 Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) ............................................................................................... 11fn8 * Cuomo v. NRC, 772 F.2d 972 (D.C. Cir. 1985) ................................................................................... 12 Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112 (2d Cir. 2005) ....................................................................................... 13 * Hodel v. Va. Surface Mining & Reclamation Ass’n,

452 U.S. 264 (1980) ....................................................................................................... 4

Ill. League of Advocates for the Developmentally Disabled v. Ill. Dep’t of Human Servs., 803 F.3d 872 (7th Cir. 2015) ...................................................................................... 12 Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001) .......................................................................... 13fn11 Massachusetts v. EPA, 549 U.S. 497 (2007) ..................................................................................................... 18 * Authorities upon which we chiefly rely are marked with asterisks.


iii

Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015) ................................................................................... 18 * Miss. Comm’n on Envtl. Quality v. EPA,

790 F.3d 138 (D.C. Cir. 2015) ..................................................................................... 4 Miss. Comm’n on Envtl. Quality v. EPA, D.C. Cir. No. 12-1309 (Doc. 1403139) (Nov. 5, 2012) .......................... 13, 13fn11 New York v. United States,

505 U.S. 144 (1992) ....................................................................................................... 4

* Nken v. Holder, 129 S. Ct. 1749 (2009) ................................................................................................. 13

Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 (1983) ....................................................................................................... 8

Printz v. United States

521 U.S. 898 (1997) ....................................................................................................... 4

* Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013) ................................................................................. 3, 4 * Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ................................................................................... 13 FEDERAL STATUTES Clean Air Act

42 U.S.C. § 7411(a)(1) ............................................................................................ 5, 11 42 U.S.C. § 7411(d)(1) ................................................................................................... 3 42 U.S.C. § 7411(d)(2) ................................................................................................... 3

FEDERAL REGULATIONS Code of Federal Regulations (“C.F.R.”)

40 C.F.R. § 60.22(b)(5) .................................................................................................. 5 40 C.F.R. § 60.5720(b) .......................................................................................... 12fn9 40 C.F.R. § 60.5765(a) ................................................................................................. 14


iv

FEDERAL REGISTER

70 Fed. Reg. 25,162 (May 12, 2005) .......................................................................... 16 74 Fed. Reg. 66,496 (Dec. 15, 2009) ......................................................................... 19

80 Fed. Reg. 64,662 (Oct. 23, 2015) ........................................... 1, 3, 5, 6, 14, 15, 19 80 Fed. Reg. 64,966 (Oct. 23, 2015) ........................................................................... 3 STATE ADMINISTRATIVE PROCEEDINGS In re Appalachian Power Co. DBA, Am. Elec. Power, No. 13-0764-E-CN, 2014 WL 5212906 (W. Va. Pub. Serv. Comm’n, Feb. 12, 2014) ..................................................... 10fn6 In re Montana-Dakota Utilities Co., No. PU-11-163, 2012 WL 2849479 (N.D. Pub. Serv. Comm’n, May 9, 2012) ........................................................... 10fn6 In re Application of Ok. Gas & Elec. Co., No. PUD 201400229 (Ok. Corp. Comm’n, Dec. 2, 2015), available at http://imaging.occeweb.com/AP/Orders/occ5245126.pdf ........ 8fn4 In re Application of Tucson Elec. Power Co., No. E-01933A-12-0291, 2013 WL 3296522 (Ariz. Corp. Comm’n, June 27, 2013) ................................................................. 10fn6 In re Tucson Elec. Power Co., No. U-1933-96-086, 1996 WL 551857 (Ariz. Corp. Comm’n, Apr. 24, 1996) ................................................................. 11fn7 In re Va. Elec. & Power Co., No. PUE-2012-00101, 2013 Va. PUC LEXIS 633 (Va. Corp. Comm’n, Sept. 10, 2013)........................................................................... 9 MISCELLANEOUS Bandyk, Matthew, Kentucky Power gets approval to convert coal unit at Big Sandy to gas, SNL (Aug. 1, 2014) ................................................................................................ 10fn6 Bandyk, Matthew, We Energies coal-to-gas conversion gets approval from Wis. Regulators, SNL (Feb. 3, 2014) ................................................................................................ 10fn6


v

Bradley, M.J. & Associates, Public Utility Comm’n Study,

EPA Contract No. EP-W-07-064 (Mar. 31, 2011), available at http://www3.epa.gov/airtoxics/utility/puc_study_march2011.pdf ............ 10fn6


vi

GLOSSARY Act Clean Air Act Albright Decl. Declaration of Madeleine Albright, Albright Stonebridge

Group (submitted with Non-Governmental Intervenors’ Stay Opposition)

Chang Decl. Declaration of Edith Chang, California Air Resources

Board Clark Decl. Declaration of Stuart Clark, Washington Department of

Ecology

Dykes Decl. Declaration of Katherine Dykes, Connecticut Department of Energy and Environmental Protection

Glatt Decl. Declaration of L. David Glatt, North Dakota Department

of Health (submitted as part of Attachment A to North Dakota’s Stay Motion)

Gore Decl. Declaration of Ronald Gore, Alabama Department of

Environmental Management (submitted as part of Exhibit C to State Petitioners’ Stay Motion)

Eisdorfer Decl. Declaration of Jason Eisdorfer, Oregon Public Utilities

Commission Easterly Decl. Declaration of Thomas Easterly, Indiana Department of

Environmental Management (submitted as part of Exhibit C to State Petitioners’ Stay Motion)

EPA United States Environmental Protection Agency Field Decl. Declaration of Christopher Field, United States

Environmental Protection Agency (submitted as Exhibit 5 to EPA’s Opposition to Stay Motions)

Hodanbosi Decl. Declaration of Robert Hodanbosi, Ohio Environmental

Protection Agency (submitted as part of Exhibit C to State Petitioners’ Stay Motion)


vii

Hyde Decl. Declaration of Richard Hyde, Texas Commission on

Environmental Quality (submitted as part of Exhibit C to State Petitioners’ Stay Motion)

Jones Decl. Declaration of Suzanne Jones, City of Boulder, Colorado Klee Decl. Declaration of Robert Klee, Connecticut Department of

Energy and Environmental Protection KS Comments Comments Submitted to EPA on Clean Power Plan by

John Mitchell, Director, Kansas Department of Health and Environment (Nov. 17, 2014), EPA-HQ-OAR-2013-23255

KY Comments Comments Submitted to EPA on Clean Power Plan by

Leonard Peters, Secretary, Kentucky Energy and Environment Cabinet (Nov. 26, 2014), EPA-HQ-OAR-2013-22574

McCabe Decl. Declaration of Janet G. McCabe, United States

Environmental Protection Agency (submitted as Exhibit 1 to EPA’s Opposition to Stay Motions)

McVay Decl. Declaration of Douglas McVay, Rhode Island Department

of Environmental Management Millar Decl. Declaration of Neil Millar, California Independent System

Operator MT Comments Comments Submitted to EPA by Steve Bullock, Governor,

State of Montana (Dec. 1, 2014), EPA-HQ-OAR-2013-22969

Nowak Decl. Declaration of Ellen Nowak, Public Service Commission of

Wisconsin (submitted as part of Exhibit C to State Petitioners’ Stay Motion)

Pedersen Decl. Declaration of Dick Pedersen, Oregon Department of

Environmental Quality


viii

Randolph Decl. Declaration of Edward Randolph, California Public Utilities Commission

Rikard Decl. Declaration of Gary Rikard, Mississippi Department of

Environmental Quality (submitted with Mississippi Department of Environmental Quality’s Stay Motion)

RGGI Regional Greenhouse Gas Initiative Snyder Decl. Declaration of Jared Snyder, New York State Department

of Environmental Conservation Stern Decl. Declaration of Todd Stern, United States Department of

State (submitted as Exhibit 6 to EPA’s Opposition to Stay Motions)

Stoddard Decl. Declaration of Philip Stoddard, City of South Miami,

Florida Suuberg Decl. Declaration of Martin Suuberg, Massachusetts Department

of Environmental Protection Thornton Decl. Declaration of David Thornton, Minnesota Pollution

Control Agency Tierney Decl. Declaration of Susan F. Tierney, Analysis Group, Inc.

(submitted with Non-Governmental Intervenors’ Stay Opposition)

Winslow Decl. Declaration of Dallas Winslow, Delaware Public Utilities

Commission Wright Decl. Declaration of Craig Wright, New Hampshire Department

of Environmental Services Zibelman Decl. Declaration of Audrey Zibelman, New York State Public

Service Commission


1

PRELIMINARY STATEMENT

To protect their residents’ health and welfare from the dangers of climate

change, the undersigned proposed Intervenor States and Municipalities (“State

Intervenors”) have sought for years to mitigate climate change harms and reduce

carbon-dioxide emissions. The Clean Power Plan is an essential part of these efforts

because it will impose pollution limits on the country’s largest source of those

emissions: fossil-fuel power plants. 80 Fed. Reg. 64,662 (Oct. 23, 2015) (“Rule”). The

Rule appropriately utilizes the cooperative-federalism framework of section 111(d) of

the Clean Air Act, which directs EPA to prescribe regulations for emissions of carbon

dioxide from power plants. See Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2539

(2011).

Petitioners have moved to stay the Rule, asserting that it unconstitutionally

commandeers States to implement a federal policy and improperly forces them to

transform their energy sectors.1 These arguments fundamentally mischaracterize the

Rule. Far from intruding on state sovereignty or coercing state governments, the Rule

sets reasonable limits on carbon-dioxide pollution from fossil-fuel power plants—just

as previous EPA rules have limited other forms of pollution from these same power

1 This Opposition focuses on arguments concerning state sovereignty and State

Petitioners’ alleged harms, which State Intervenors are uniquely situated to answer. State Intervenors agree with EPA and the other Intervenors-Respondents that Petitioners’ other arguments lack merit.


2

plants. The Rule allows States the option of implementing the emission limits

themselves—through a broad range of possible approaches—or opting out of

regulation completely, in which case EPA will directly regulate the power plants.

Under either approach, States will continue, as before, to exercise any traditional

regulatory oversight they have to review and approve power plant decisions to comply

with the Rule. Contrary to Petitioners’ arguments, the Rule respects rather than

interferes with state regulation of energy, and follows a long tradition of successful

regulation of power plant pollution. For these reasons, Petitioners are unlikely to

succeed on the merits, and a stay should be denied.

The equities also weigh heavily against a stay. State Intervenors are

experiencing climate change harms firsthand and urgently seek the reductions

provided for in the Rule. Any delay in emission reductions from a stay would

compound these harms. Denial of a stay, on the other hand, would not cause

irreparable harm. State Petitioners have sufficient time and flexibility to plan

compliance strategies that will best enable power plants to meet emission obligations.

ARGUMENT

I. THE CLEAN POWER PLAN IS A LAWFUL EXERCISE OF EPA’S AUTHORITY UNDER SECTION 111(d)’S COOPERATIVE FEDERALISM STRUCTURE.

A. The Clean Power Plan Gives States Substantial Leeway to Decide Whether and How to Participate in Reducing Emissions.

Petitioners complain that the Rule forces States to “undertake a long series of


3

regulatory actions” in violation of their constitutional rights, Ok. Br. 11. See also W.Va.

Br. 6, 10-11; Chamber Br. 6, 14-15; UARG Br. 2, 6, 13; NMA Br. 11. To the contrary,

the Rule follows Congress’s well-established framework of cooperative federalism—

one that is embodied in the Clean Air Act and other statutes, and that has consistently

been upheld as constitutional. See Texas v. EPA, 726 F.3d 180, 196 (D.C. Cir. 2013).

Similar to other Clean Air Act regulations, the Rule sets emission limits for

power plants. In accord with the Act’s cooperative federalism framework, the Rule

gives each State the option of designing and implementing a state-specific plan to

ensure that power plants in the State achieve these federally-enforceable emission

limits. See 42 U.S.C. § 7411(d)(1); 80 Fed. Reg 64,827; EPA Br. 5-6. But no State is

required to exercise this option. If a State opts out of submitting a plan, EPA will

issue and enforce its own federal plan to implement the Rule’s carbon-dioxide

emission limits. 80 Fed. Reg. at 64,881-82; 42 U.S.C. § 7411(d)(2) (authorizing federal

plan). Under a federal plan, EPA will enforce emission limits directly against power

plants, which will have the choice to make technological changes that reduce

emissions, purchase credits or allowances, shift to lower-emitting generation, or

implement other measures to reduce emissions. See 80 Fed. Reg. 64,966, 64,970

(Oct. 23, 2015).

The “constitutionality of federal statutes that allow States to administer federal

programs but provide for direct federal administration if a State chooses not to

administer it” has been “repeatedly affirm[ed].” Texas, 726 F.3d at 196. The option of


4

direct federal regulation thus removes any “suggestion that the [Rule] commandeers

the legislative processes of the States by directly compelling them to enact and enforce

a federal regulatory program.” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.

264, 289-90 (1980).

The cooperative-federalism framework endorsed in Texas and Hodel exists

throughout federal law. See New York v. United States, 505 U.S. 144, 167-68 (1992)

(listing examples). And the Rule straightforwardly applies this framework. The Rule

thus bears no similarity to the federal statutes that were found to impermissibly

commandeer States in Printz v. United States and New York v. United States, contrary to

Petitioners’ claims (see Ok. Br. 10-11). In those cases, the States had no choice but to

comply with federal mandates. Printz, 521 U.S. 898, 904, 932-33 (1997) (no choice to

opt out of duty to perform background checks on gun purchasers); New York, 505

U.S. at 175 (no choice but to regulate as instructed or take title to low-level radioactive

waste, both of which were commandeering). Here, the Rule, by contrast, allows States

to decline to regulate at all and thus does not commandeer or coerce any State. Cf.

Hodel, 452 U.S. at 288-89; see also Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138,

175 (D.C. Cir. 2015) (“the Clean Air Act does not” compel States to implement

federal regulatory programs).

The backstop of direct federal regulation by itself defeats Petitioners’ claims of

unconstitutional commandeering or coercion. But the availability of a federal option is

not the only way in which the Rule respects state choices. States that decide to


5

participate in the regulation of carbon-dioxide emissions are afforded the “maximum

possible degree of flexibility” in meeting emission goals. 80 Fed. Reg. at 64,820. The

broad range of options available to States underscores the extraordinary degree to

which the Rule respects, rather than interferes with, state sovereignty.

To provide States with a full range of options, EPA began by establishing

guidelines for States to follow in limiting carbon-dioxide pollution for coal- and gas-

fired power plants. To calculate these limits, EPA considered the degree of emission

reductions that these power plants could achieve by adopting the “best system of

emission reduction . . . adequately demonstrated,” 42 U.S.C. § 7411(a)(1); see also 40

C.F.R § 60.22(b)(5). In EPA’s determination, the “best system of emission reduction”

includes the “building blocks” of improving heating efficiency at the power plants and

shifting generation from fossil-fuel fired power plants to lower- or zero-emitting units,

all of which are proven strategies to reduce carbon-dioxide pollution.2 To maximize

flexibility for States opting to submit state plans, EPA then translated these plant-

specific emission limits into statewide goals. 80 Fed. Reg. at 64,667.

The Rule gives States broad discretion to decide how to achieve these statewide

goals. States need not require power plants to use the particular measures EPA

selected as the “building blocks” of the “best system of emission reduction” for

2 EPA’s consideration of these measures to set the emission limits—and power

plants’ use of them to meet the limits—is not unique in Clean Air Act regulation. See 80 Fed. Reg. at 64,724-25, 64,770-73 (listing examples); EPA Br. 28-30 (same).


6

purposes of their calculations of emission limits. See 80 Fed. Reg. at 64,710. Nor must

States (or power plants) employ these “building blocks” at the levels EPA used in its

limit-setting calculations, as some Petitioners concede. See NMA Br. 13 (“sources are

not required to use the EPA-established [best system of emission reduction]”). As the

Rule makes clear, States (and power plants) may achieve the emission goals by using

any combination of measures. 80 Fed. Reg. at 64,755. See EPA Br. 9.

States that choose to submit a state plan may select a plan that places most of

the burden on the power plants themselves, rather than the State. See EPA Br. 17, 46,

57.3 Under such a plan, power-plant owners would be left to decide how to comply

and the measures available to power-plant owners are familiar ones for that industry.

The options include purchasing emission credits or allowances, making heat rate

improvements, co-firing natural gas with coal, converting coal plants to natural gas,

shifting generation to lower emitting units, or some combination of these and other

options. See 80 Fed. Reg. at 64,709, 64,833-35; see also EPA Br. 9, 34-35.

This approach conforms with previous Clean Air Act regulations involving

power plants (see infra, 9-10), and, contrary to Petitioners’ claims, does not “dictate

the market share of each generation fuel-type.” See UARG Br. 6, 13. States that

3 The Rule recognizes States may adopt a “trading ready” plan, see McCabe

Decl. ¶¶ 19-21, or work with other States to achieve cost-effective emission reductions through market-based trading, such as the successful Regional Greenhouse Gas Initiative. See, e.g., Dykes Decl., ¶¶ 8-9, 26-30 (A47, A55-57).


7

choose to implement the Rule’s emission limits (and power plants on which limits are

ultimately imposed) have freedom to choose from a broad range of familiar

compliance options, underscoring the absence of any infringement on state

sovereignty.

B. The Clean Power Plan Respects, Rather than Undermines, State Authority Over Energy.

Petitioners further argue that the Rule encroaches on States’ authority to

regulate their intrastate electrical grids. Ok. Br. 6, 11-12; see also Chamber Br. 14. Some

Petitioners claim EPA is “bypassing all federal and state energy laws and the

regulators that have overseen the industry for over seventy years.” UARG Br. 2.

Others assert that EPA is infringing on state sovereignty because, even if States opt

out and EPA imposes the Rule’s emissions limits directly on the power plants, States’

utility regulators will have to oversee compliance responses such as generation shifting

or plant closures. See Ok. Br. 6, 11-12. None of these claims has merit.

Far from intruding on the States’ authority to regulate energy, the Rule

preserves that authority, as previous Clean Air Act rules have, because any measures

taken by power plants to comply with the Rule—whether under a state plan or a

federal plan—will remain subject to the States’ regulatory oversight of the energy

sector. Whatever changes power plants implement to reduce carbon-dioxide

emissions must still comply with the States’ traditional regulation of “the economic

aspects of electrical generation,” including the setting of retail electricity rates and the


8

licensing of generating facilities, Pacific Gas & Elec. Co. v. State Energy Res. Conservation

& Dev. Comm’n, 461 U.S. 190, 212 (1983). See EPA Br. 33 (“[S]tates retain the same

authorities they always have.”). For example, as one State Petitioner’s declarant notes,

state energy regulators will continue, as before, to exercise their existing authority to

review proposed power-plant retirements in response to the Rule to ensure continued

reliability. Nowak Decl. ¶ 12.

Petitioner Oklahoma derides the Rule’s preservation of state oversight

authority as requiring States to “accommodate” the Rule or “facilitate the changes to

electricity generation and transmission that the Rule requires.” Ok. Br. 2. But the Rule

merely anticipates that state regulators will continue exercising their ordinary oversight

of compliance measures that would affect the energy sector—just as state regulators

would review any changes caused by other regulations, economic forces, industry

practice, or power-plant owners’ business decisions.4 Rather than “run[ning]

roughshod over States’ sovereign rights,” W.Va. Br. 10; see also Chamber Br. 6, 14-16,

the Rule assumes States will continue to exercise their sovereign rights to oversee their

energy sectors and provides ample space for States to do so, whether a State submits a

plan or EPA imposes a federal plan. This continued oversight is presumed in all

4 Just last week, Oklahoma’s public utility regulator exercised its regulatory

authority to deny a power plant owners’ plan for complying with federal environmental regulations, which had included converting two coal plants to natural gas. In re Application of Ok. Gas & Elec. Co., No. PUD 201400229 (Ok. Corp. Comm’n, Dec. 2, 2015), available at http://imaging.occeweb.com/AP/Orders/occ5245126.pdf.


9

federal emission limits on power plants and cannot render the Rule unconstitutional.

States have extensive experience with providing regulatory oversight of power

plants’ compliance decisions. Many of the measures used by power plants to reduce

emissions under prior EPA rules—such as plant retirements, conversions from coal

to natural gas, and construction of new lower or zero-emitting generation—have

required state regulatory approvals. State regulators have routinely reviewed and

approved those measures as well as rate increases necessary to recover the costs of

those measures.5 For example, Virginia granted an application to convert a coal-fired

power plant to natural gas after the Clean Air Act’s regulatory requirements made the

continued use of coal uneconomical. In re Va. Elec. & Power Co., No. PUE-2012-

00101, 2013 Va. PUC LEXIS 633 (Va. Corp. Comm’n, Sept. 10, 2013). Similarly, in

coordination with state environmental regulators, Oregon’s energy regulator approved

the permanent retirement of a coal-fired power plant by 2020 to meet the State’s

regional haze obligations under the Clean Air Act while maintaining reliability.

Eisdorfer Decl. ¶ 18 (A180-81); see also Thornton Decl. ¶ 10 (A146-47) (repowering

project in Minnesota). State Petitioners also have overseen and approved similar

5 See, e.g., Zibelman Decl. ¶ 12 (A232) (discussing process in New York for

Public Service Commission to ensure plant retirements in response to air regulations do not undermine reliability); Randolph Decl. ¶¶ 38-39 (A213-14) & Millar Decl. ¶ 6 (A185-86) (discussing work of California Public Utilities Commission and Independent System Operator to ensure power plants’ decisions to comply with federal standards for particulate matter and restrictions on use of cooling water is consistent with long-term electric reliability planning for the Los Angeles Basin area).


10

power-plant compliance responses to previous EPA regulations. For example, state

regulators routinely oversee the selection of appropriate compliance strategies from

among a range of options (including generation shifting), the shutdown of power

plants, the conversion of plants from coal to natural gas, and the recovery of the costs

of compliance with federal emission limits, all while ensuring reliability and managing

rate impacts.6 States oversee these compliance measures even when the emission

limits that power plants must comply with resulted from direct federal regulation

under a federal plan.7 Comparing this history with States’ oversight under the Rule

6 See, e.g., In re Application of Tucson Elec. Power Co., No. E-01933A-12-0291, 2013

WL 3296522, at *6, 32, 59 (Ariz. Corp. Comm’n, June 27, 2013) (allowing power company to recover power plants’ costs of complying with EPA regional haze and mercury air toxics rules); In re Montana-Dakota Utilities Co., No. PU-11-163, 2012 WL 2849479 (N.D. Pub. Serv. Comm’n, May 9, 2012) (granting application for a proposed project at coal-fired power plant to comply with EPA-approved regional haze state implementation plan and mercury rule after considering other options, including conversion to natural gas, construction of a new natural gas plant and purchase of wind energy); In re Appalachian Power Co. DBA, Am. Elec. Power, No. 13-0764-E-CN, 2014 WL 5212906, at *1 (W. Va. Pub. Serv. Comm’n, Feb. 12, 2014) (approving conversion of several coal-fired units to natural gas to “retain needed generation capacity while complying with the recent tightening of federal environmental regulations”); see also M.J. Bradley & Associates, Public Utility Comm’n Study, EPA Contract No. EP-W-07-064 (Mar. 31, 2011) (describing responses by utility regulators, including in Indiana, Georgia, and West Virginia, to power plant efforts to comply with federal pollution regulations), available at http://www3.epa.gov/airtoxics/utility/puc_study_march2011.pdf; Matthew Bandyk, We Energies coal-to-gas conversion gets approval from Wis. Regulators, SNL (Feb. 3, 2014) (describing Wisconsin’s utility regulator’s approval of a coal plant’s conversion to natural gas to comply with federal rule); Matthew Bandyk, Kentucky Power gets approval to convert coal unit at Big Sandy to gas, SNL (Aug. 1, 2014) (same for Kentucky).

7 See, e.g., In re Tucson Elec. Power Co., No. U-1933-96-086, 1996 WL 551857


11

underscores the degree to which the Rule respects, rather than interferes with, state

sovereignty.8

II. STATE PETITIONERS HAVE NOT DEMONSTRATED IRREPARABLE HARM.

A. The Clean Power Plan Does Not Impose Any Burdens that Justify a Stay.

State Petitioners assert that they face irreparable harm because they will have to

spend “unrefundable dollars” to write their plans and decide what regulatory changes

to make “governing their electricity markets” in order to ensure compliance with the

Rule’s deadlines. W. Va. Br. 17; see also Miss. Br. 10-11; Ok. Br. 17-18; N.D. Br. 14.

But the Rule does not mandate States incur such costs because they have the option

not to submit a plan and instead accept direct federal regulation of sources. Moreover,

(Ariz. Corp. Comm’n, Apr. 24, 1996) (approving application for authorization to issue new pollution control bonds and refinance other pollution control revenue bonds for costs of compliance with federal plan regulating regional haze).

8 For the same reasons, Petitioners’ argument that the Clean Air Act does not contain a sufficiently “clear statement” authorizing EPA’s consideration of energy in its regulation of pollution from power plants fails. See, e.g., Ok. Br. 7-8; W. Va. Br. 10-11. By authorizing EPA to regulate power plants, the Act by necessity authorizes EPA to consider broader energy impacts of such regulation, and EPA routinely has done so. The Act also authorizes EPA to use a cooperative-federalism approach when it regulates under section 111(d), and instructs it to “tak[e] into account” “energy requirements,” 42 U.S.C. § 7411(a)(1); see also Am. Elec. Power v. Conn., 131 S. Ct. at 2539. Thus, EPA had sufficient statutory authority over interstitial details, such as consideration of the ability of power plants to shift generation to comply with pollution controls, and no further clear statement was required. Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 302 (3d Cir. 2015). And to the extent there is ambiguity in the statute, EPA’s interpretation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984).


12

even if a State submits a plan, it may choose a regulatory framework that imposes little

burden on the State itself. A State can, for example, set up a trading system based on

EPA’s model rule and leave it to power-plant owners to decide how to comply.9 See

Point I.A, supra. Cf. Ill. League of Advocates for the Developmentally Disabled v. Ill. Dep’t of

Human Servs., 803 F.3d 872, 875-76 (7th Cir. 2015) (denying stay where rule did not

require alleged injury).10 To the extent a State choosing to implement the Rule’s

emission limits goes beyond these options and makes regulatory decisions “governing

their electricity markets,” those “self-imposed costs” cannot establish irreparable

harm. Cuomo v. NRC, 772 F.2d 972, 977 (D.C. Cir. 1985).

In addition, any voluntary choices States make to begin complying with the

Rule during the pendency of this litigation cannot justify a stay. If developing a state

plan or considering other compliance options could constitute irreparable harm, any

cooperative federalism rule under the Clean Air Act or other similar statutes could be

stayed. This would improperly transform a stay from an “extraordinary remedy” that

is not a “matter of right” into a commonplace event. Cf. Nken v. Holder, 129 S. Ct.

1749, 1757, 1760 (2009) (quotation marks omitted); see also Freedom Holdings, Inc. v.

9 Further, States that initially decline to submit a state plan—perhaps waiting to

see how this litigation unfolds—can change their mind and submit a state plan later. 40 CFR § 60.5720(b). Thus, even a State’s decision to accept direct federal regulation of the State’s power plants is not an irreversible one.

10 State Petitioners argue the model rule here is only a proposal, but EPA has stated it would “likely approve” a state plan based on it. See McCabe Decl. ¶ 21 & n.6.


13

Spitzer, 408 F.3d 112 (2d Cir. 2005) (“ordinary compliance costs are typically

insufficient to constitute irreparable harm”); Order, Miss. Comm’n on Envtl. Quality

(D.C. Cir. No. 12-1309) (Nov. 5, 2012) (Doc. No. 1403139) (denying stay in challenge

to EPA’s nonattainment designations); EPA Br. 58.

State Petitioners’ further contention that they will be harmed even if they

accept a federal plan because their utility regulators will have to review certain

compliance measures by power plants, W. Va. Br. 16, Ok. Br. 18-19, relies on costs

that are not a “direct[] result” mandated by the Rule. Wisconsin Gas Co. v. FERC, 758

F.2d 669, 674 (D.C. Cir. 1985). Any potential decisions by state utility regulators on

how to structure and regulate electricity generation in response to power plants’

decisions—including whether to approve plant retirements, permits for new natural

gas or renewable facilities, or rate change petitions—simply reflect their continued

traditional role as an electricity regulator, not a burden caused by the Rule. See supra

Part I.B.11

11 State Petitioners’ assertions of constitutional injury (Miss. Br. 10-11; Ok. Br.

17-18) also do not, by themselves, justify a stay. See Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997) (“traditional prerequisites for injunctive relief” are still required when constitutional violation is asserted). Order, Miss. Comm’n on Envtl. Quality, supra (denying motion for a stay where Indiana had alleged constitutional violations). In addition, Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001), relied upon by State Petitioners (e.g., Ok. Br. 17), is inapposite because it involved Kansas’s claim to ownership of land within state borders, not regulation under a cooperative federalism structure. See EPA Br. 54; see also generally Point I, supra.


14

B. State Petitioners’ Asserted Burdens Are Neither “Certain and Great” Nor Imminent Enough to Warrant a Stay.

Moreover, State Petitioners have fallen far short of showing harm that is “both

certain and great” or “imminen[t].” Wisconsin Gas Co., 758 F.2d at 674. The Rule gives

States flexibility to meet its deadlines without incurring overly burdensome costs or

making irreversible decisions.

The September 2016 deadline for plan submissions or extension requests (until

September 2018) does not, as State Petitioners assert,12 require States to make final

decisions now on what will be in their plans. See 80 Fed. Reg. at 64,669. States can

submit an extension request by providing basic information to EPA about: (i) the plan

options under consideration, (ii) why more time is needed to prepare the plan, and (iii)

a description of the State’s public participation process. 40 C.F.R. § 60.5765(a).

Providing this information does not constitute a great burden and States are well-

positioned to prepare timely extension requests. See McCabe Decl. ¶¶ 12-17. All State

Intervenors are prepared to take this straightforward and simple step where necessary.

See, e.g., Clark Decl. ¶ 16 (A35-36); Klee Decl. ¶ 32 (A72); McVay Decl. ¶ 19 (A92);

Pedersen Decl. ¶ 14 (A106).

The deadline for plan submittals in September 2018 is also readily achievable. It

12 See Hodanbosi Decl. ¶ 4 (required to design an “interim State Plan” by

September 2016); Gore Decl. ¶ 2; Rikard Decl. ¶ 2 (must submit final plan “absent special circumstances”); Easterly Decl. ¶¶ 5, 6; Glatt Decl. ¶ 11; Hyde Decl. ¶¶ 9, 11.


15

is consistent with the typical time period for preparing plans under the Clean Air Act.

See e.g., Clark Decl. ¶¶ 27-28 (A40-41); McCabe Decl. ¶¶ 25-30. And State Intervenors

have finalized plans in shorter time.13 In public comments, several State Petitioners

took the position that three years would be sufficient to develop their plans

implementing the Rule. See, e.g., KS Comments at 15; KY Comments at 18; MT

Comments at 15.

The Rule’s next set of deadlines, governing compliance with the emission

limits, also do not cause irreparable harm. Compliance with the Rule’s final limits need

not be achieved until 2030, with gradual interim deadlines beginning in 2022. 80 Fed.

Reg. at 64,828, 64,785-86. Despite these generous deadlines, State Petitioners assert

they will be forced to take steps now to “enable compliance” and avert “reliability

impacts,” W.Va. Br. 16, because of decisions that power plants will supposedly make

now to comply with the Rule, Ok. Br. 19. But the generous compliance deadlines are

far beyond the duration of litigation over the Rule14 and assertions about decisions

power plants will make now are speculative and based on unrealistic scenarios. See

13 Thornton Decl. ¶ 34 (A156) (section 111(d) plan for large municipal waste

combustors developed in twenty-eight months); Chang Decl. ¶ 21 (A14-15) (State developed plan to achieve particulate matter standard in Los Angeles area within two years, including extensive air quality modeling and stakeholder input); Klee Decl. ¶ 41 (A76) (state plan to implement nitrogen oxides trading program for power plants developed in twelve months).

14 State Intervenors understand that Petitioners intend to seek expedited briefing in this case.


16

EPA Br. 57, 60-62; Tierney Decl. ¶¶ 28-29 (B15-18).15 In addition, to enable power

plants to meet the deadlines, States can design plans that allow the power plants to

meet the interim emission limits through easily and quickly deployable strategies. See

Advanced Energy Ass’ns Opp. 3-4; Power Companies Opp. 3-4. Moreover, many

States are well on their way to meeting their statewide emission goals due to trends in

the electricity generation sector toward less carbon-intensive fuels, Dykes Decl. ¶¶ 9-

10 (A47-48), and widespread state regulations that require a certain percentage of

power to be generated by renewable sources of energy such as wind and solar, see

Clark Decl. ¶ 26 (A40); Klee Decl. ¶ 23 (A69); Thornton Decl., ¶ 8 (A145-46).

State Intervenors’ experience implementing Clean Air Act rules also

demonstrates that power plants have sufficient time and flexibility to comply with the

Rule without jeopardizing reliability or causing significant increases in electricity

prices. For example, more than two dozen States implemented the Clean Air

Interstate Rule (CAIR), 70 Fed. Reg. 25,162 (May 12, 2005), a cap-and-trade program

requiring power plants to reduce their emissions of nitrogen oxides and/or sulfur

dioxide pursuant to interim and final deadlines. States had four and a half years for the

first deadline and nine and a half years for the second (compared to seven years and

fourteen years under the Rule). And although the compliance deadlines under CAIR

15 Nor are State Petitioners correct that power plant owners or utility regulators

will soon have to make “irreversible” decisions to retire coal-fired generation. See EPA Br. 60-61, 65-66; Zibelman Decl. ¶ 13 (A233).


17

were much more expedited, there were no significant reliability problems associated

with CAIR’s implementation. See also McCabe Decl. ¶¶ 47-51 (discussing similar case

with respect to Cross-State Air Pollution Rule).

Similarly, certain State Intervenors have implemented rules limiting carbon-

dioxide emissions expeditiously without harming reliability or increasing electricity

prices. To implement the Regional Greenhouse Gas Initiative (RGGI), all ten

participating States enacted the necessary regulations to cap and reduce carbon

emissions from their power plants in less than two and a half years following issuance

of a model rule.16 RGGI’s compliance period began only a few months after States

had established their programs. Snyder Decl. ¶ 27 (A123). And the RGGI States have

already reduced regional carbon-dioxide emissions from power plants by forty percent

from 2005 levels without compromising grid reliability or increasing consumer

electricity bills. Dykes Decl. ¶¶ 8-9, 13-14 (A47, A50-51) (RGGI States on track for

fifty percent reduction from 2005 levels by 2020; the program created $1.3 billion net

economic benefits for region and reduced consumer energy bills by $460 million).

Winslow Decl. ¶ 20 (A225) (“Implementing RGGI has not adversely affected electric

reliability in Delaware in any way.”). Similarly, California and Oregon timely

16 See, e.g., Snyder Decl. ¶¶ 19, 26 (A120-22); Wright Decl. ¶¶ 14, 19-20 (A165-

68) (New Hampshire able to enact necessary legislation despite fact that legislature meets only periodically); Suuberg Decl. ¶ 7 (A140) (Massachusetts joined RGGI in 2007 and adopted final regulations implementing program the following year).


18

implemented programs to successfully reduce greenhouse gas emissions while

preserving reliability and keeping rates stable. Chang Decl. ¶ 21 (A14-15); Randolph

Decl. ¶¶ 7-8 (A194-95); Eisdorfer Decl. ¶ 7 (A176). See also Thornton Decl. ¶¶ 9, 11-

16 (A146-49) (discussing Minnesota’s experience promoting efficiency and reducing

emissions while growing clean energy jobs).

III. A STAY IS NOT IN THE PUBLIC INTEREST.

Even where a stay is necessary to prevent irreparable harm, it may not be

granted if it would “visit similar harm on other interested parties.” Ambach v. Bell, 686

F.2d 974, 979 (D.C. Cir. 1982). The Court must consider “the interests of . . .

stakeholders who supported the rule and who . . . stand to suffer harm if the rule is

enjoined.” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 557 (D.C. Cir. 2015).

A. A Stay that Results in Delays to the Clean Power Plan’s Deadlines Will Harm State Intervenors.

State Intervenors have faced significant harms and costs from climate change

for many years. To spur federal action, several State Intervenors pursued litigation

against EPA more than ten years ago, successfully forcing the agency to consider

whether carbon dioxide and other greenhouse gases may reasonably be anticipated to

endanger public health and welfare. Massachusetts v. EPA, 549 U.S. 497 (2007). Certain

State Intervenors also sued EPA to promptly establish carbon-dioxide emissions

limits under section 111 of the Clean Air Act because of the contribution of power

plants’ emissions to climate change. New York v. EPA (D.C. Cir. No. 06-1322).


19

EPA subsequently found that greenhouse gases pose a serious danger to public

health and welfare. 74 Fed. Reg. 66,496, 66,497 (Dec. 15, 2009). Subsequent research

has only strengthened that finding, concluding that climate change poses increased

risk of mortality, especially in children and the elderly, during extreme heat events and

from infectious and waterborne diseases, as well as threats to coastal communities and

infrastructure from storms and rising sea levels. 80 Fed. Reg. at 64,683.

That conclusion is borne out by the experiences of State Intervenors. For

example, in South Florida, flooding exacerbated by rising seas is now commonplace,

adversely impacting homes, roads, bridges, drinking water, and sewage systems.17

Many other cities and States face more severe storms, wildfires and droughts.18 In

addition, the increased heat waves, droughts, fires, storms, and freezes resulting from

climate change all threaten reliability of the electric grid. Randolph Decl. ¶¶ 20-22

(A202-04) & Dykes Decl. ¶ 21 (A53-54). A stay that results in postponed emission

reductions would be prejudicial because more emissions would continue to intensify

the climate change that has been harming State Intervenors. Field Decl. ¶¶ 7, 29; see

also McVay Decl. ¶ 35 (citing recent experience of three-year delay in emission

17 Stoddard Decl. ¶¶ 7-13 (South Miami) (A250-51) & Ex. C (A266-70) (multi-city letter discussing similar hardships faced by other South Florida municipalities).

18 See Jones Decl. ¶ 39 (A243) (Boulder); see Chang Decl. ¶ 2 (A2-6) (California); Clark Decl. ¶¶ 4-5 (A28-29) (Washington); Klee Decl. ¶ 6 (A60-61) (Connecticut); Pedersen Decl. ¶ 5 (A101-02) (Oregon); Snyder Decl. ¶ 4 (A112-13) (New York); Thornton Decl., ¶¶ 36-37 (A156-57) (Minnesota); Wright Decl., ¶ 6 (A161) (New Hampshire).


20

reductions from Cross-State Air Pollution Rule from stay granted at litigation’s

outset). A stay would also disrupt state programs set to coordinate with compliance

planning for the Rule.19

B. A Stay Could Endanger United States’ Ability to Secure International Reductions in Greenhouse Gas Emissions.

A stay of the Rule—a fundamental plank of our country’s pledge to cut carbon

pollution—could prejudice the United States’ ability to convince other countries to

implement an international agreement to reduce carbon emissions.20 The potential for

a stay to endanger the United States’ interests internationally weighs heavily against

granting it. See Adams v. Vance, 570 F.2d 950, 957 (D.C. Cir. 1978) (preliminary relief

particularly disfavored where it will cause “symbolic impacts” to international

relations and “substantially endanger the interests of the United States”).

CONCLUSION

For the above reasons, Petitioners’ motion for a stay should be denied.

19 For example, a stay would hamper California’s efforts to integrate the Rule’s

emission reduction requirements with the State’s existing cap-and-trade program for carbon-dioxide emissions. Chang Decl. ¶¶ 28-37 (A18-23); see also Winslow Decl. ¶ 22 (A226) (stay would complicate Delaware Public Utility Commission’s integrated energy planning efforts); McVay Decl. ¶ 36 (A98-99) (same for RI and pending RGGI program review by all RGGI states).

20 Jones Decl. ¶¶ 38-39 (A243) & Ex. A (A245-47) (letter from ten cities, including four in petitioning States, opposing a stay). See Stern Decl. ¶¶ 11, 18, 20, 31; Albright Decl. ¶¶ 7-12 (B105-07).


21

Dated: December 8, 2015 Respectfully submitted,

FOR THE STATE OF NEW YORK

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL

By: /s/ Michael J. Myers21 BARBARA D. UNDERWOOD Solicitor General STEVEN C. WU Deputy Solicitor General BETHANY A. DAVIS NOLL

Karen W. Lin Assistant Solicitor General MICHAEL J. MYERS MORGAN A. COSTELLO BRIAN LUSIGNAN Assistant Attorneys General Environmental Protection Bureau The Capitol Albany, NY 12224 (518) 776-2392

21 Pursuant to ECF-3(B) of this Court’s Administrative Order Regarding

Electronic Case Filing (May 15, 2009), counsel hereby represents that the other parties listed in the signature blocks have consented to the filing of this brief.


22

FOR THE STATE OF CALIFORNIA KAMALA D. HARRIS ATTORNEY GENERAL Robert W. Byrne Sally Magnani Senior Assistant Attorneys General Gavin G. McCabe David A. Zonana Supervising Deputy Attorneys General Jonathan Wiener M. Elaine Meckenstock Raissa Lerner Deputy Attorneys General 1515 Clay Street Oakland, CA 94612 (510) 622-2100 Attorneys for the State of California, by and through Governor Edmund G. Brown, Jr., the California Air Resources Board, and Attorney General Kamala D. Harris FOR THE STATE OF CONNECTICUT GEORGE JEPSEN ATTORNEY GENERAL Matthew I. Levine Kirsten S. P. Rigney Scott N. Koschwitz Assistant Attorneys General Office of the Attorney General P.O. Box 120, 55 Elm Street Hartford, CT 06141-0120 (860) 808-5250

FOR THE STATE OF DELAWARE MATTHEW P. DENN ATTORNEY GENERAL Valerie S. Edge Deputy Attorney General Delaware Department of Justice 102 West Water Street, 3d Floor Dover, DE 19904 (302) 739-4636 FOR THE STATE OF HAWAI‘I DOUGLAS S. CHIN ATTORNEY GENERAL William F. Cooper Deputy Attorney General 425 Queen Street Honolulu, HI 96813 (808) 586-1500 FOR THE STATE OF ILLINOIS LISA MADIGAN ATTORNEY GENERAL Matthew J. Dunn Gerald T. Karr James P. Gignac Assistant Attorneys General 69 W. Washington St., 18th Floor Chicago, IL 60602 (312) 814-0660


23

FOR THE STATE OF IOWA TOM MILLER ATTORNEY GENERAL Jacob Larson Assistant Attorney General Environmental Law Division Lucas State Office Building 321 E. 12th St., Room 18 Des Moines, Iowa 50319 (515) 281-5351 FOR THE STATE OF MAINE JANET T. MILLS ATTORNEY GENERAL Gerald D. Reid Natural Resources Division Chief 6 State House Station Augusta, ME 04333 (207) 626-8800 FOR THE STATE OF MARYLAND BRIAN E. FROSH ATTORNEY GENERAL Thiruvendran Vignarajah Deputy Attorney General 200 St. Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-6328 Attorneys for State of Maryland, By and through Attorney General Brian E. Frosh

FOR THE COMMONWEALTH OF MASSACHUSETTS MAURA HEALEY ATTORNEY GENERAL Melissa A. Hoffer Christophe Courchesne Assistant Attorneys General Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108 (617) 963-2423 FOR THE STATE OF MINNESOTA LORI SWANSON ATTORNEY GENERAL Karen D. Olson Deputy Attorney General Max Kieley Assistant Attorney General 445 Minnesota Street, Suite 900 St. Paul, MN 55101-2127 (651) 757-1244 Attorneys for State of Minnesota, by and through the Minnesota Pollution Control Agency FOR THE STATE OF NEW HAMPSHIRE JOSEPH A. FOSTER ATTORNEY GENERAL K. Allen Brooks Senior Assistant Attorney General Chief, Environmental Bureau 33 Capitol Street Concord, NH 03301 (603) 271-3679


24

FOR THE STATE OF NEW MEXICO HECTOR BALDERAS ATTORNEY GENERAL Tannis Fox Assistant Attorney General Office of the Attorney General 408 Galisteo Street Villagra Building Santa Fe, NM 87501 (505) 827-6000 FOR THE STATE OF OREGON ELLEN F. ROSENBLUM ATTORNEY GENERAL Paul Garrahan Attorney-in-Charge Natural Resources Section Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4593 FOR THE STATE OF RHODE ISLAND PETER F. KILMARTIN ATTORNEY GENERAL Gregory S. Schultz Special Assistant Attorney General Rhode Island Department of Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400

FOR THE STATE OF VERMONT WILLIAM H. SORRELL ATTORNEY GENERAL Thea Schwartz Assistant Attorney General Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-2359 FOR THE COMMONWEALTH OF VIRGINIA MARK HERRING ATTORNEY GENERAL John W. Daniel, II Deputy Attorney General Lynne Rhode Senior Assistant Attorney General and Chief Matthew L. Gooch Assistant Attorney General Environmental Section Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 225-3193 FOR THE STATE OF WASHINGTON ROBERT W. FERGUSON ATTORNEY GENERAL Leslie R. Seffern Assistant Attorney General Office of the Attorney General P.O. Box 40117 Olympia, WA 98504-0117 (360) 586-4613


25

FOR THE DISTRICT OF COLUMBIA KARL A. RACINE ATTORNEY GENERAL James C. McKay, Jr. Senior Assistant Attorney General Office of the Attorney General 441 Fourth Street, NW Suite 630 South Washington, DC 20001 (202) 724-5690 FOR THE CITY OF BOULDER TOM CARR CITY ATTORNEY Debra S. Kalish Senior Assistant City Attorney City Attorney’s Office 1777 Broadway, Second Floor Boulder, CO 80302 (303) 441-3020 FOR THE CITY OF CHICAGO BENNA RUTH SOLOMON Deputy Corporation Counsel 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-7764

FOR THE CITY OF NEW YORK ZACHARY W. CARTER CORPORATION COUNSEL Carrie Noteboom Senior Counsel New York City Law Department FOR THE CITY OF PHILADELPHIA SHELLEY R. SMITH CITY SOLICITOR Scott J. Schwarz Patrick K. O’Neill Divisional Deputy City Solicitors The City of Philadelphia Law Department One Parkway Building 1515 Arch Street, 16th Floor Philadelphia, PA 19102-1595 (215) 685-6135 FOR THE CITY OF SOUTH MIAMI THOMAS F. PEPE CITY ATTORNEY City of South Miami 1450 Madruga Avenue, Ste 202 Coral Gables, Florida 33146 (305) 667-2564


26

FOR BROWARD COUNTY, FLORIDA JONI ARMSTRONG COFFEY COUNTY ATTORNEY Andrew J. Meyers Chief Deputy County Attorney Mark A. Journey Assistant County Attorney Broward County Attorney’s Office 155 S. Andrews Avenue, Room 423 Fort Lauderdale, FL 33301 (954) 357-7600

100 Church Street New York, NY 10007 (212) 356-2319


27

CERTIFICATE OF COMPLIANCE

I hereby certify that the Opposition to Petitioners’ Motions for a Stay on

Behalf of State, District, City and County Intervenors-Respondents, dated December

8, 2015, complies with the type-volume limitations of Rule 32 of the Federal Rules of

Appellate Procedure, this Court’s Circuit Rules, and this Court’s briefing order issued

on November 17, 2015, which limited the briefs for Intervenors in Support of

Respondent to a total of 50 pages. I certify that this brief contains 20 pages, excluding

the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit Rule

32(a)(1), and that when combined with the word count of the other Intervenors-

Respondents, the total does not exceed 50 pages.

/s/ Michael J. Myers MICHAEL J. MYERS


28

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Opposition to Petitioners’ Motions

for a Stay on Behalf of State, District, City and County Intervenors-Respondents was

filed on December 8, 2015 using the Court’s CM/ECF system, and that, therefore,

service was accomplished upon all registered counsel of record by the Court’s system.

I further certify that a copy of the foregoing document was served by U.S. Mail

on the following non-CM/ECF counsel:

Janice M. Alward Arizona Corporation Commission 1200 West Washington Phoenix, AZ 85007-2927 Counsel for Petitioner Arizona Corporation Commission

Patrick Burchette Holland & Knight LLP 800 17th Street, NW Suite 1100 Washington, DC 20006-6801 Counsel for Petitioners East Texas Electric Cooperative, Inc.; Northeast Texas Electric Cooperative, Inc.; Sam Rayburn G&T Electric Cooperative, Inc.; Tex-La Electric Cooperative of Texas, Inc. David Finley Crabtree Vice President, General Counsel 10714 South Jordan Gateway South Jordan, UT 84092 Counsel for Petitioner Deseret Generation & Transmission Co-operative Karen R. Harned National Federation of Independent Business 1201 F Street, NW Suite 200 Washington, DC 20004 Counsel for Petitioner National Federation of Independent Business


29

Karl Roy Moor Southern Company Services, Inc. 600 18th Street, North 15N Birmingham, AL 35203 Counsel for Petitioner Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Steven J. Oberg Lynn, Jackson, Shultz & Lebrun, P.C. PO Box 8250 Rapid City, SD 57709 Counsel for Petitioner Rushmore Electric Power Cooperative, Inc. Gary Vergil Perko Hopping Green & Sams 119 South Monroe Street Suite 300 Tallahassee, FL 32301 Counsel for Petitioner Gulf Power Company Lee Philip Rudofsky Office of the Attorney General, State of Arkansas 323 Center Street Suite 200 Little Rock, AR 72201 Counsel for Petitioner State of Arkansas Bill Spears Segrest & Segrest, P.C. 18015 West Highway 84 McGregor, TX 76657 Counsel for Petitioner Brazos Electric Power Cooperative, Inc. Ben H. Stone Balch & Bingham LLP 1310 Twenty Fifth Avenue Gulfport, MS 39501-1931 Counsel for Petitioner Mississippi Power Company


30

Luther J. Strange, III Office of the Attorney General, State of Alabama 501 Washington Avenue Montgomery, AL 36130 Counsel for Petitioner State of Alabama Laurence H. Tribe Harvard Law School Griswold 307 1563 Massachusetts Avenue Cambridge, MA 02138 Counsel for Movant-Intervenors Peabody Energy Corporation, Dixon Bros., Inc., Nelson Brothers, Inc., Western Explosive Systems Company, Norfolk Southern Corporation, Joy Global Inc., and Gulf Coast Lignite Coalition Janet F. Wagner Arizona Corporation Commission 1200 West Washington Phoenix, AZ 85007-2927 Counsel for Petitioner Arizona Corporation Commission Philip Zoebisch 28 W Madison Avenue Collingswood, NJ 08108 Movant-Amicus Curiae /s/ Michael J. Myers MICHAEL J. MYERS


United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 15-1363 September Term, 2015

EPA-80FR64662

Filed On: January 21, 2016

State of West Virginia, et al.,

Petitioners

v.

Environmental Protection Agency and ReginaA. McCarthy, Administrator, United StatesEnvironmental Protection Agency,

Respondents------------------------------American Wind Energy Association, et al.,

Intervenors------------------------------Consolidated with 15-1364, 15-1365,15-1366, 15-1367, 15-1368, 15-1370,15-1371, 15-1372, 15-1373, 15-1374,15-1375, 15-1376, 15-1377, 15-1378,15-1379, 15-1380, 15-1382, 15-1383,15-1386, 15-1393, 15-1398, 15-1409,15-1410, 15-1413, 15-1418, 15-1422,15-1432, 15-1442, 15-1451, 15-1459,15-1464, 15-1470, 15-1472, 15-1474,15-1475, 15-1477, 15-1483, 15-1488

BEFORE: Henderson, Rogers, and Srinivasan, Circuit Judges

O R D E R

Upon consideration of the motion for stay and expedition and the motions forstay, the responses thereto, and the replies; the joint motion to establish briefing formatand expedited briefing schedule, the responses thereto, and the replies; and petitionerLG & E and KU Energy’s motion in No. 15-1418 to sever certain issues and hold themin abeyance and the oppositions thereto, it is


United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 15-1363 September Term, 2015

ORDERED that the motions for stay be denied. Petitioners have not satisfiedthe stringent requirements for a stay pending court review. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); D.C. Circuit Handbook of Practice and InternalProcedures 33 (2015). It is

FURTHER ORDERED that consideration of these appeals be expedited. It is

FURTHER ORDERED that the motion in No. 15-1418 to sever certain issuesand hold them in abeyance be denied. It is

FURTHER ORDERED, on the court’s own motion, that by noon on January 27,2016, the parties submit a proposed format for the briefing of all the issues in thesecases, as well as a proposed schedule that ensures that all initial briefs are filed by April15, 2016, the deferred appendix is filed by April 18, 2016, and the final briefs are filedby April 22, 2016. The parties are reminded that the court looks with extreme disfavoron repetitious submissions, and the parties are encouraged to limit both the numberand size of the briefs they propose to file. It is

FURTHER ORDERED that oral argument be scheduled before this panel onJune 2, 2016, commencing at 9:30 a.m. The parties should also reserve June 3 in theevent argument cannot be concluded on June 2nd.

The parties are directed to hand-deliver the paper copies of their submission tothe court by the time and date due.

Per Curiam

FOR THE COURT:Mark J. Langer, Clerk

BY:

John J. AccursioDeputy Clerk/LD

Page 2


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