Patrick Morrisey Fm": net Sent: Monday, February 10, 2014 7 29 PM To: Patrick Momsey Subject: (1) Legislation, (2) Explanation. (3) Talking Points and (4) Resolution Attachments: Leglslation pdf; Explanationpdf, Talking Points pdf; Resolutionpdi Dear General Morrisey, Attached please find a replacement set of the four documents which I left with you at our meeting in Charleston on December The only significant change is one designed to meet your objection to Section 7 of the drafi legislation. As you recall, that section directed the Attorney General to litigate which you, understandably, thought might set an unfortunate precedent. Section 7 has been dropped entirely. I trust that you will find the legislation acceptable in its present form. If so, I would appreciate your having it introduced by your friends in both the Senate and the House. Whether litigation becomes necessary at a later date would be entirely Within your province to determine. The passage ofthe legislation, however, would in my opinion strengthen West Virginia's hand in drafting the State's implementation plan and in subsequent litigation, if any Should you have any questions. please call me. Thanks! Andy Andrew Miller Washinion DC 20007 andrewpmiller@vcrizon.nct 1 mom i .. i' .. m; ?m?ad S?iaies Eg??mnmamg? {E?m im-ezids 1.2.0 axiom guide?izms 28:37am: ?a?i?ie emigs?am ?ass?? @Eadw?red ewe-Wig generatng tag-gigs 'an?m? Seam-:1 1 I ig?} af me; Steam Act; . Cw?mw Sag-ms; .. mi @z-far-mme-a :32: Seesaw mm) Air Act far axig?iag st am "If? gamma-3.5, =2?9$sil ialee?g?a gQ-neraimg a of f?g?kgyi?g _-tjhe ??cap?amfi?wgi??iiewa?sm schame trade"? Gizamz Rig? .1: 321$;- er?si?rmg' -. tk?i have the wag 121g e'zi-t'af? researcaS; v. as Wall as min-g ?ne? effi?m?wys? 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I 0&3 arm ?he? Sign mm mgulamm 2:9, develgg i . ?im?sg and Nazi-c af ?511" di?it?l?id?ie ?g that? WM into. gamma [State] we! and igf?rtfh-er mam Mid ??fp??fova stateiasta?ig Sit-awards an. w?fmti m. 5f an E. piames?e; whievam? Tyi-??agsg?i?es 'itaz-xa-d-ez??i??wn at fegme-Eue'le I . ?ag-mt? 13%? EPA: ?ts-Wham dinxide ?erfoi-zmazwe: standaz?ia far iwm in meat jurismimiom 3 @am 000018 Patrick Morrisey From: andrewpmiller?verizon.net Sent: Friday, February 14, 2014 2:50 PM To: Patrick Morrisey Subject: (1) Legislation (2). Explanation (3) Talking Points and (4) Resolution Attachments: Resolutionpdf; Talking Explanationpdf; Legislationpdf Dear General Morrisey, The other States which I respectfully request you consider asking their to seek to have legislation enacted in 2014, similar to the WV legislation we discussed in your library some weeks ago but without any direction by the Legislature to the Attorney General to ?le suit, are the following six: AZ, CO, ID, KS, SD and WI. You, of course, know each of the States? AGs and I anticipate that most, if not all, of them will be sympathetic to your request. (I will be glad to follow up with any of them should you wish me to do so.) Basically, each of these ought to be asked to take the following three steps: 1. Assume responsibility for having the legislation introduced, monitoring its progress, and assisting in its enactment; 2. Cause his state agency to ?le comments detailing the de?ciencies of proposed rule on C02 emissions from existing 3. Join in a brief, which I trust might be prepared by your Of?ce, urging that Final Rule be set aside by the DC. Circuit. For ease of understanding, I have attached, in addition to the preposed legislation, an explanation of its provisions and talking points in support of its passage, as well as a resolution memorializing the lead role States should play in regulating C02 emissions from power plants. As you may know, in addition to WV and the six States listed above, 25 other States are being solicited by organizations such as the NAM, the US. Chamber and the Southern Company to take the same three steps. (A number of the remaining 18 States may join an amicus brief supporting EPA.) The mission, of course, is to maximize the number of States signing onto brief (out of 32 potential signatories) and to minimize the number joining a brief supporting EPA (out of 18 possibles). I look forward to working with you on this project which hopefully will have widespread support in your State and elsewhere. Andy 1 000019 Andrew Miller Washington DC 20007 @verizonnet Donate Join ALEC Search American Legislative Exchange Counc? Limited Government Free Markets Federalism Resolution Concerning EPA Proposed Greenhouse Gas Emission Standards for New and Existing Fossil-Fueled Power Plants Search in Model Policies: lSearch Model Keyword Tags 2013 Annual Meeting 2013 SNPS Accountability Accounting Admissibility ADR Agriculture Air Quality Alternative Energy Standard Alternative Fuels Animal Appeal Bond Article Asbestos Bad Faith Resolution Concerning EPA Proposed Greenhouse Gas Emission Standards for New and Existing Fossil-Fueled Power Plants Summary: This resolution establishes a state?s responsibility for establishing emission standards and recognizes responsibility for establishing guidelines which, when done properly, will lead to cost effective reductions in greenhouse gas emissions without requiring units retirement or a curtailment of operations. This resolution is meant to be a template made up of a series of factual statements clauses) and actions statements clauses, for each state to review after which the state can select the clauses that best reflect the state?s individual priorities while strongly making the case for state primacy in regards to greenhouse gas standards. WHEREAS, on June 25, 2013, the President issued a memorandum to the US. EPA Administrator directing the EPA to propose New Source Performance Standards (NSPS) for greenhouse gases (GHG) that establish limits for carbon dioxide (COZ) emissions from new fossil fuel fired electric generating units which the Administrator did on September 20, 2013; and by the same memorandum directed the Administrator to: - Issue proposed carbon pollution standards, regulations, or guidelines, as appropriate, for modified, reconstructed, and existing power plants by no later than June 1, 2014; - Issue final standards, regulations, or guidelines, as appropriate for modified, reconstructed and existing power plants by no later than June 1, 2015; - Include in the guidelines addressing existing power plants a requirement that States submit to the US. EPA the implementation plans required under Section 111(d) of the Clean Air Act and Here is a statement from Attorney General Patrick Morrisey to The New York Times November 2014 “When I ran for Attorney General in 2012, I was very clear: fighting illegal EPA actions and protecting coal miners would be one of my top priorities. I have kept that promise. Through these regulations, the Obama Administration has ignored the rule of law and demonstrated a callous disregard for poverty in West Virginia. My Office did not take a position on HB 4346. In fact, I would prefer to see the Legislature go in a different direction. My Office also was not involved in the passage of the House Resolution.” Introduced Version HOUSE RESOLUTION NO. 13 (By Delegates Caputo, Mr. Speaker (Mr. Miley), Craig, Marcum, R. Phillips, Moye, Perry, Stephens, Walker, Reynolds, D. Poling, Ferro, Barker, Boggs, Campbell, Diserio, Eldridge, Fragale, Guthrie, Hartman, Hunt, Iaquinta, Jones, Kinsey, Longstreth, Lynch, Manchin, Manypenny, Marshall, Moore, Morgan, Paxton, Perdue, Pethtel, L. Phillips, Pino, M. Poling, Poore, Skaff, P. Smith, Staggers, Swartzmiller, Tomblin, White, Williams, Young and Wells) Urging the U.S. Environmental Protection Agency to develop guidelines that support the lead role of states in regulating carbon dioxide emissions from existing power plants. WHEREAS, A reliable and affordable energy supply is vital to West Virginia’s economic growth, jobs, and the overall interests of its citizens; and WHEREAS, West Virginia supports an all-the-above energy strategy because it is in the best interest of West Virginia and the Nation; and WHEREAS, The United States has abundant supplies of coal that provide economic and energy security benefits; and WHEREAS, Coal provides affordable and reliable electricity to the citizens of West Virginia; and WHEREAS, Carbon regulations for existing coal-fueled power plants could threaten the affordability and reliability of West Virginia’s electricity supplies and risk substantial job losses through the premature closure of power plants that have just invested in pollution controls to meet the U.S. EPA’s recent mercury regulations; and WHEREAS, Carbon dioxide emissions from U.S. coal-fueled power plants represent only three percent of global anthropogenic greenhouse gas emissions; and WHEREAS, The U.S. Energy Information Administration projects that U.S. electric sector carbon dioxide emissions will be fourteen percent below 2005 levels in 2020 and that carbon dioxide emissions from U.S. coal-fueled power plants will be nineteen percent below 2005 in 2020; and WHEREAS, On June 25, 2013, The President directed the Administrator of the U.S. EPA to issue standards, regulations, or guidelines to address carbon dioxide emissions from new, existing, modified, and reconstructed fossil-fueled power plants; and WHEREAS, The President expressly recognized that the states “will play a central role in establishing and implementing carbon standards for existing power plants”; and WHEREAS, The Clean Air Act requires EPA to establish a “procedure” under which each state shall develop a plan for establishing and implementing standards of performance for existing sources within the state; and WHEREAS, The Clean Air Act expressly allows states, in developing and applying such standards of performance, “to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies”; and WHEREAS, EPA’s existing regulations provide that states may adopt “less stringent emissions standards or longer compliance schedules” that EPA’s guidelines based on factors such as “unreasonable cost of control,” “physical impossibility of installing necessary control equipment,” or other factors that make less stringent standards or longer compliance times “significantly more reasonable”; and WHEREAS, It is in the best interest of electricity consumers in West Virginia to continue to benefit from reliable, affordable electricity provided by coal-based electricity generating plants; therefore, be it Resolved by the House of Delegates: That West Virginia urges EPA, in developing guidelines for regulating carbon dioxide emissions from existing power plants, to respect the primacy of West Virginia and other states and to rely on state regulators to develop performance standards for carbon dioxide emissions that take into account the unique policies, energy needs, resource mix, and economic priorities of West Virginia and other states; and, be it Further Resolved, That EPA should issue guidelines and approve state-established performance standards that are based on reductions of carbon dioxide emissions achievable by measures undertaken at fossil-fueled power plants; and, be it Further Resolved, That EPA should allow West Virginia and other states to set less stringent performance standards or longer compliance schedules for power plants within their jurisdiction; and, be it Further Resolved, That West Virginia and other states should be given maximum flexibility by EPA to implement carbon dioxide performance standards for fossil-fueled power plants within their jurisdiction; and, be it Further Resolved, That the Clerk of the House forward a certified copy of this resolution to the federal Environmental Protection Agency. WEST VIRGINIA HOUSE OF DELEGATES Second Regular Session HR 13 Urging the United States Protection Agency guidelines that support the lead role of states in regulating power plant emissions RCS# 237 3/03/2014 2:09 PM ADOPTION YEAS: 91 NAYS: 0 NOT VOTING: 9 ADOPTED YEAS: 91 Ambler Anderson Andes Armstead Arvon Ashley Azinger Barill Barrett Boggs Border Butler Cadle Campbell Canterbury Caputo Cooper Cowles Craig Diserio Eldridge Ellem Ellington Espinosa Evans, A. Evans, D. Faircloth Ferro Fleischauer Folk Fragale Frich Gearheart Guthrie Hamilton Hamrick Hartman Householder Howell Hunt Iaquinta Ireland Jones Kinsey Kump Lane Lawrence Longstreth Lynch Manchin Manypenny Marcum Marshall McCuskey Miller Moore Moye Nelson, E. O'Neal Overington Pasdon Perdue Perry Pethtel Phillips, R. Pino Poling, D. Poling, M. Poore Nelson, J. Paxton Phillips, L. Raines Storch Walters NAYS: 0 NOT VOTING: 9 Barker Ferns Morgan Reynolds Romine Rowan Shott Skaff Skinner Smith, P. Smith, R. Sobonya Sponaugle Staggers Stephens Sumner Swartzmiller Tomblin Walker Wells Westfall White Williams Young Miley Engrossed Version OTHER VERSIONS - Introduced Version Enrolled Version - Final Version ENGROSSED H. B. 4346 (By Delegates R. Phillips, Caputo, Andes, Craig, Sumner, Pethtel, Marcum, Lynch, Tomblin, Eldridge and Barker) [Introduced January 28, 2014; referred to the Committee on Energy then the Judiciary.] A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §22-5-20, relating to the development of a state plan to reduce carbon pollution and greenhouse gas production under section 111 of the Clean Air Act; establishing separate standards of performance for carbon dioxide emissions from existing coal-fired electric generating units; establishing separate standards of performance for natural gas-fired electric generating units; and factors and considerations to be reflected in the developed state plan. Be it enacted by the Legislature of West Virginia: That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §22-5-20, to read as follows: ARTICLE 5. AIR POLLUTION CONTROL. §22-5-20. Regulating carbon dioxide emissions from existing fossil fuel-fired electric generating units. (a) The Department of Environmental Protection, in consultation with the Department of Environmental Protection Advisory Council, shall establish separate standards of performance for carbon dioxide emissions from existing coal-fired electric generating units in accordance with subsection (b) and from existing natural gas-fired electric generating units in accordance with subsection (c). The standards of performance developed and proposed under any state plan to comply with section 111 of the Clean Air Act should allow for greater flexibility and take into consideration the additional factors set forth in subsection (d) as a part of any state plan to achieve targeted reductions in greenhouse gas emissions which are equivalent or comparable to the goals and marks established by federal guidelines. (b) Standards of performance for existing coal-fired electric generating units. -- Except as provided under subsection (d), the standard of performance established for existing coal-fired electric generating units under subsection (a) shall be based upon: (1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for coal-fired electric generating units that are subject to the standard of performance; (2) Reductions in emissions of carbon dioxide that can reasonably be achieved through measures undertaken at each coal-fired electric generating unit; and (3) Efficiency and other measures that can be undertaken at each coal-fired electric generating unit to reduce carbon dioxide emissions from the unit without switching from coal to other fuels, cofiring other fuels with coal, or limiting the utilization of the unit. (c) Standards of performance for existing natural gas-fired electric generating units. -- Except as provided in subsection (d), the standard of performance established for existing gas-fired electric generating units under subsection (a) shall be based upon: (1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for natural gas-fired electric generating units that are subject to the standard of performance; (2) Reductions in emissions of carbon dioxide that can reasonably be achieved through measures at each natural gasfired electric generating unit; and (3) Efficiency and other measures that can be undertaken at the unit to reduce carbon dioxide emissions from the unit without switching from natural gas to other lower-carbon fuels or limiting the utilization of the unit. (d) Flexibility in establishing standards of performance. -- In developing a flexible state plan to achieve targeted reductions in greenhouse gas emissions, the Department of Environmental Protection shall endeavor to establish an achievable standard of performance for any existing fossil fuel-fired electric generating unit, and examine whether less stringent performance standards or longer compliance schedules may be implemented or adopted for existing fossil fuel-fired electric generating units in comparison to the performance standards established for new, modified or reconstructed generating units, based on the following: (1) Consumer impacts, including any disproportionate impacts of energy price increases on lower income populations; (2) Non air quality health and environmental impacts; (3) Projected energy requirements; (4) Market-based considerations in achieving performance standards; (5) The costs of achieving emission reductions due to factors such as plant age, location, or basic process design; (6) Physical difficulties with or any apparent inability to feasibly implement certain emission reduction measures; (7) The absolute cost of applying the performance standard to the unit; (8) The expected remaining useful life of the unit; (9) The economic impacts of closing the unit, including expected job losses, if the unit is unable to comply with the performance standard; (10) Any other factors specific to the unit that make application of a modified or less stringent standard or a longer compliance schedule more reasonable; and (11) Whether other reductions in greenhouse gases could be potentially achieved by other measures, including but not limited to reduction of overall energy requirements or implementation of additional conservation measures, to meet targeted goals and objectives. (e) Implementing standards of performance. -- The Department of Environmental Protection may, to the extent permissible, establish and implement performance standards for existing fossil fuel fired electric generating unit through regulatory mechanisms that provide flexibility in complying with the standards, including the averaging of emissions, emissions trading, or other alternative implementation measures that are determined to further the interests of West Virginia and its citizens. (f) State plan requirement. -- The Department of Environmental Protection shall propose or submit to the U.S. Environmental Protection Agency a state plan which includes achievable performance standards for existing sources, and a combination of additional measures designed to meet the U.S. Environmental Protection Agency’s guidelines, consistent with the considerations, goals and parameters set forth in this section. WEST VIRGINIA SENATE ROLL CALL SEQ. NO. 0035. MAR BILL # HB 4346 8, 2014 R # 3 3:10 PM Yea: 34 Nay: 0 Absent: 0 Y BARNES Y GREEN Y SNYDER Y BEACH Y HALL, D. Y STOLLINGS Y BLAIR Y HALL, M. Y SYPOLT Y BOLEY Y JENKINS Y TUCKER Y CANN Y KIRKENDOLL Y UNGER Y CARMICHAEL Y LAIRD Y WALTERS Y CHAFIN Y MCCABE Y WELLS Y COLE Y MILLER Y WILLIAMS Y COOKMAN Y NOHE Y YOST Y EDGELL Y PALUMBO Y KESSLER Y FACEMIRE Y PLYMALE Y FITZSIMMONS Y PREZIOSO RCS # 293 WEST VIRGINIA HOUSE OF DELEGATES Second Regular Session HB 4346 Establishing separate standards of performance for carbon dioxide emissions RCS# 485 3/08/2014 11:17 PM PASSAGE-SENATE AMENDED HB YEAS: 97 NAYS: 0 NOT VOTING: 3 PASSED YEAS: 97 Ambler Anderson Andes Armstead Arvon Ashley Azinger Barill Barker Barrett Boggs Border Butler Cadle Campbell Canterbury Caputo Cooper Cowles Craig Diserio Eldridge Ellem Ellington Espinosa Evans, A. Evans, D. Faircloth Ferns Ferro Fleischauer Folk Fragale Frich Gearheart Guthrie Hamilton Hamrick Hartman Householder Howell Hunt Iaquinta Ireland Jones Kinsey Kump Lane Lawrence Longstreth Lynch Manchin Manypenny Marcum Marshall McCuskey Miller Moore Morgan Moye Nelson, E. O'Neal Overington Pasdon Paxton Perdue Perry Pethtel Phillips, L. Phillips, R. Pino Poling, D. Poling, M. Poore Reynolds Raines Walters NAYS: 0 NOT VOTING: 3 Nelson, J. Romine Rowan Shott Skaff Skinner Smith, P. Smith, R. Sobonya Sponaugle Staggers Stephens Storch Sumner Swartzmiller Tomblin Walker Wells Westfall White Williams Young Miley PRIVILEGED & CONFIDENTIAL Outline of Legal Issues For CAA §111(d) Rulemaking/Litigation This memorandum lists five key legal issues that should be central to the Southern Company rulemaking and litigation efforts on the proposed section 111(d) existing source performance standards. The memorandum also lists a number of legal and record-based issues being addressed by other parties. 1. 2. Issue One:Legal Framework for Evaluating EPA’s Interpretation of Section 111(d) a. The validity of EPA’s CAA §111(d) rules will depend on resolution of questions of statutory interpretation regarding the nature and scope of EPA’s authority under the Clean Air Act (CAA), as constrained by the Federal Power Act and related principles of constitutional law. It will be critical therefore to address the legal principles under which EPA’s statutory interpretation will be evaluated. There are two lines of authority that are particularly helpful. b. First, according to the Supreme Court, “[w]hen an agency claims to discover a long-extant and unheralded power to regulate ‘a significant portion of the American economy’ … we typically greet its announcement with a measure of skepticism.” UARG v. EPA, slip op. at 19 (quoting Brown & Williamson). The Supreme Court “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Id. As discussed below, CAA §111(d) does not “clearly” (or even implicitly) give EPA authority to restructure the electric utility industry, and the FPA specifically precludes it. c. Second, the Supreme Court has “declined to read federal law as intruding on … responsibility” that “our constitutional structure leaves … primarily to the States.” Bond v. U.S., 134 S.Ct. 2077, 2083 (June 2, 2014); accord Gregory v. Ashcroft, 501 U.S. 452 (1991). Where there is no “clear statement that Congress meant the statute to reach … conduct” that is primarily the States’ responsibility, therefore, courts refrain from construing the statute to authorize action that intrudes on State responsibilities. In this case, States not only have the primary responsibility to provide for the health and welfare of their citizens through the exercise of police powers, but the primary role of the States regarding both (i) the protection of public health and welfare and (ii) the production and local distribution of electricity to its citizens, is explicitly recognized in CAA §111(d) and the FPA. Issue Two: CAA §111’s narrow and exclusive focus is on stationary sources, not on state electricity markets. __ 3. 4. a. The language of §111(d) is exclusively focused on “standards of performance” for new and existing “sources” in defined “source categories.” This provision calls for setting standards that govern the “performance” of “sources.” This is not a delegation of authority to regulate system dispatch, or generation portfolios, or demand side efficiency measures, or other aspects of state electricity markets. b. The exclusive focus of §111(d)on the performance of stationary sources is supported by other language in that provision, by the structure of the CAA, by EPA’s own §111(d) regulations, by EPA’s prior implementation of §111, and by case law. c. EPA’s reading of the word “system” in the §111 definition of “performance standard” in isolation, in order to expand EPA’s §111(d)authority beyond the performance of “stationary sources” in the designated “source category,” is inconsistent with the statute and runs afoul of basic principles of statutory construction . UARG v. EPA. Issue Three: CAA §111(d) assigns to the States the responsibility to define “performance standards” for individual sources through a state plan, based on “guidance from EPA. EPA is not authorized to set binding state emission standards. a. Section 111(d) exemplifies the concept of cooperative federalism embedded in the Clean Air Act. As EPA said in promulgating §111(d) regulations in 1975: “States will have primary responsibility for developing and enforcing control plans under §111(d).” 40 Fed. Reg. at 53,343 (Nov. 17, 1975) (emphasis added). b. Furthermore, §111(d) on its face restricts EPA’s authority to the issuance of “procedural” regulations for state development (and EPA approval) of State plans. Section 111(d) authorizes States to take into account, in the development of those plans, the “remaining useful life” of the specific source and “other factors” relevant to the development of source-specific performance standards. Nothing in §111 authorizes EPA to impose state-wide emission limitations that states have no authority to adjust. c. Statutes may not be construed to reach conduct that is primarily the State’s responsibility without a ”clear statement” from Congress. Here, the only “clear statement” in §111(d) is an affirmation of State primacy. Issue Four: The Federal Power Act confirms State primacy with respect to the regulation ofelectricity markets. a. [Explain why EPA’s interpretation of its CAA authority runs afoul of the FPA.] b. [Tie this argument into the basic theme that agency decisions of “vast economic and political significance,” and that intrude on State primacy, must be premised on clear congressional authorization. Here, the FPA makes clear that States, not EPA, have authority over state electricity markets.] -2- 5. 6. Issue Five: The CAA provides EPA no authority to require States to impose enforceablerequirements that EPA cannot impose through Federal Implementation Plans. a. EPA explains in the proposal that, before EPA will approve a state plan, the plan must include measures that are “enforceable” under the CAA. Recognizing that its CO2 reduction goals cannot be achieved without requirements addressing each “building block,” EPA defines “emission standard” for purposes of its section 111(d) rule as “any compliance obligation,” and “affected entity” as any entity subject to a compliance obligation. b. Using these definitions, EPA suggests that states use “integrated resource plans”to address compliance obligations under each building block, and that these plans then be “federalized” and made enforceable by EPA and citizen suits.42 U.S.C. §7604. Once federalized, a state’s IRP could not be revised without EPA’s approval. And, if EPA did not approve a state’s IRP, EPA says that it would issue an enforceable resource plan for the state. c. Nothing in the CAA authorizes EPA to create Federal Implementation Plans that govern state electricity resources, or to regulate any type of “affected entity” it wants to regulate. And EPA cannot coerce States to adopt measures EPA has no authority to adopt. EPA’s proposed interpretation of §111 must be rejected, as it would bring about “an enormous and transformative expansion in [its] regulatory authority,” without “clear congressional authorization.” UARG v. EPA, slip op. at 19. Other legal issues regarding EPA’s lack of §111(d) regulatory authority. a. Because the EGU source category is already regulated under CAA §112, EPA lacks authority to regulate it under §111(d). • b. c. This argument will be made by states, the coal industry, and others. EPA has no authority to regulate EGUs under §111(d), because there is no §111(b) new source performance standard for §111(d) “affected entities.” • For an existing stationary source to be regulated under §111(d), there must be a §111(b) “new source performance standard” (NSPS) for the source subject to the §111(d) rule. • The §111(d) proposal defines the “affected entity” not as the stationary source, but as any entity subject to a compliance obligation under a state or federal plan. There is no corresponding NSPS for such affected entities and, hence, no basis for a §111(d) rule. • UARG is developing this argument. EPA’s §111(d) rule is unlawful because it is based on an invalid proposal. -3- d. • Contrary to CAA §307(d)(3), all materials on which the proposed rule was based were not in the docket at the time of proposal. • This issue will be pursued by states and various trade groups (e.g., UARG and ACCCE). EPA’s determination in the §111(b) “modified/reconstructed source” rule that improved efficiency is BSER for existing EGUs renders the §111(d) rule arbitrary and capricious. • e. The §111(d) rule is arbitrary and capricious because it is based on “efficiency improvements” that EPA says may be prohibited under its new source review rules. • 7. UARG is developing this argument. UARG is developing this argument. Record-based arguments a. EPA’s conclusions regarding the levels of emission reduction achievable with each “building block” are unsupported. • b. EPA’s 2020 and 2030 state emission goals are unsupported. • c. (UARG, ACCCE, and others are coordinating on technical work supporting each of these arguments.) UARG and ACCCE are coordinating with States and individual companies on these analyses. EPA has underestimated the impacts of the proposed rule on electricity consumers, electric reliability, and the economy. • ACCCE has commissioned NERA for an indepth study to be completed by September. This study will serve two functions: (i) to bolster the argument that EPA’s interpretation of §111(d) is an “enormous and transformative expansion in [its] regulatory authority,” UARG, slip op. 19, and (ii) to provide support for congressional and communications activities. -439377.000081 EMF_US 51687416v1 State of West Virginia Of?ce of the Attorney General Patrick Morrisey . (304) 558?2021 Att rG' r1 omey enera June 6? 2014 Fax (304) 558 0410 Via Certi?ed Mail Email The Honorable Gina McCarthy Administrator US. Environmental Protection Agency 1200 Ave, NW. Washington, DC 20460 McCarthy.Gina@EPA.gov Re: Asserted Authority Under Section 111(d) Of The Clean Air Act To Regulate C02 Emissions From Existing Coal-Fired Power Plants Dear Administrator McCarthy: On June 2, 2014, the United States Environmental Protection Agency launched one of the most far-reaching and expensive regulatory projects in American history: the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (?PrOposed The Proposed Rule seeks to impose limitations on C02 emitted from existing coal-?red power plants, requiring a staggering 30% reduction in the emissions from these plants across the country in a mere 15 years. West Virginia?a major consumer of coal- generated electricity and one of the leading producers of coal?will be uniquely harmed by the restrictions of the Proposed Rule. As the chief legal of?cer for the State of West Virginia, I respectfully request that you withdraw the Proposed Rule immediately because EPA lacks the legal authority to adOpt that Rule. In the Legal Memorandum for Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units (?Legal Memorandum? or that was issued together with and incorporated by reference into the Proposed Rule,2 EPA offers only one legal basis for the Rule: the rarer invoked Section 111(d) of the Clean Air Act See 42 U.S.C. 7411(d). The problem is that Section 111(d) af?rmatively excludes precisely what EPA is attempting to do in the Proposed Rule. 1 The Rule has not yet been published in the Federal Register and is currently available at 2 State Capitol Building 1, Room 1900 Kanawha Boulevard East, Charleston, WV 25305 The Honorable Gina McCarthy June 6, 2014 Page 2 As this letter explains, EPA lacks authority under the plain text of Section 111(d), as it appears in the United States Code, to promulgate the Proposed Rule. Section 111(d) expressly prohibits EPA from regulating ?any air pollutant . . . emitted from a[n] [existing] source category which is regulated under [the national emission regime in Section 112 of the 42 U.S.C. 7411(d). Given that EPA has imposed extensive and onerous regulations on existing coal-?red power plants under Section 112, the agency cannot now use Section 111(d) to require regulation of C02 emissions from those same existing plants. This conclusion is so apparent that even EPA concedes in its Legal Memorandum that a ?literal reading? of Section 111(d) prohibits the Proposed Rule. Mem. 26; see also 70 Fed. Reg. 15,994, 16,032 (Mar. 29, 2005) (EPA making the same admission in a prior rulemaking). The only textual justi?cation that Legal Memorandum offers for departing from the ?literal? terms of Section 111(d) is unpersuasive. The agency relies entirely on a one- sentence clerical entry in the 1990 Amendments to the Clean Air Act that was not codi?ed in the U.S. Code but appears in the Statutes at Large. That entry, even EPA has admitted, was clearly a mistake because it sought to make a technical correction rendered moot by another amendment. See 70 Fed. Reg. at 16,031 (describing the entry as a ?drafting error?). Nevertheless, EPA now claims that it must give meaning to this mistake and, as a result, has announced an interpretation of Section 111(d) that directly con?icts with the language in the U.S. Code. interpretation rewrites Section 111(d) from a prohibition on the regulation of ?any air pollutant . . . emitted from a source category which is regulated under [Section 112],? as stated in the U.S. Code, to a more limited prohibition on the regulation of ?any hazardous air pollutant? emitted from such a source category. This sort of reasoning would be wrong under any circumstance, but it is particularly improper here, where it is being offered as the justi?cation for one of the most costly regulations in this Nation?s history. In light of the profound legal in?rmities with the Proposed Rule, unprecedented policy will not survive judicial review. As such, it would be contrary to the public interest to proceed with publication in the Federal Register. Failure to withdraw the Proposed Rule will only cause citizens, States, industry, and environmental groups to waste valuable resources analyzing and commenting on a futile endeavor. Moreover, given the short timeframe for compliance with the Rule?s objectives, many of these parties will be required to incur signi?cant and unnecessary costs. This will trigger unwarranted market responses and economic dislocation from coerced reduction of the use of coal as parties struggle to meet the anticipated requirements. This is unacceptable. No matter how fervent the desire by some to advance the policies underlying these regulations, EPA cannot?and should not?do so at the expense of the rule of law. A. EPA Has Conceded That The Proposed Rule Is Unlawful Under The ?Literal? Terms Of The Clean Air Act The only authority invoked by EPA for the onerous requirements in the Proposed Rule is Section 111(d) of the Clean Air Act, a little?used provision that grants EPA limited power to require States to regulate air pollutants from existing sources. Mem. 11-12. As it appears in the U.S. Code, Section 111(d) requires the EPA Administrator under narrow circumstances to The Honorable Gina McCarthy June 6, 2014 Page 3 ?prescribe regulations which shall establish a procedure . . . under which each State shall submit to the Administrator a plan which establishes standards of performance? for certain existing sources and certain air pollutants. Among other things, the statutory provision specifically excludes from the Administrator?s authority the power to prescribe regulations relating to ?standards of performance for any existing source for any air pollutant . . . emitted from a source category which is regulated under section 7412 of this title Section 112 of the 42 U.S.C. 7411(d). EPA admits in its Legal Memorandum for the Proposed Rule that ?a literal reading of that language? means that c[an] not regulate any air pollutant from a source category regulated under section 112? of the Clean Air Act. Mem. 26 (emphasis added); accord 70 Fed. Reg. at 16,032 (EPA reaching the same conclusion). Simply put, Section plain text provides that if an existing source category is regulated under Section 112, that source category may not also be regulated under Section 111(d). The regime codi?ed in Sections 112 and 111 is part of a measured, coherent approach to regulating air pollutants from new and existing pollution sources. Section 112 of the Clean Air Act concerns national emissions standards for hazardous air pollutants emitted from any number of new and existing sources. See 42 U.S.C. 7412. Whether a source category is regulated under Section 112 is generally dependent upon a number of factors. Id. 7412(0). With regard to coal-fired power plants, Congress specially provided that those sources need only be regulated under Section 112 if the Administrator finds such regulation to be ?appropriate and necessary.? Id. 7412(n). Section 111(d) in turn addresses the emission of air pollutants emitted from existing sources not regulated under Section 112. Speci?cally, when EPA has chosen not to regulate a source category nationally under Section 112, emissions from existing sources within that category must be subject instead to state-by-state emission standards under Section 111(d), assuming certain other predicates have been satis?ed. The rest of Section 111, which is not at issue here, is not restricted by the scope of Section 112 and concerns national emissions standards for air pollutants emitted from new sources. In the present case, it is clear that EPA has no authority under Section 111(d) to regulate ?any? emission from coal-fired power plants, including C02 emissions. EPA categorized coal? fired power plants as part of a ?source category? under Section 112 in 2000, see 65 Fed. Reg. 79,825, 79,826 (Dec. 20, 2000), and the DC. Circuit in 2008 rejected attempt to withdraw that ?nding, see New Jersey 12. EPA, 517 F.3d 574 (DC. Cir. 2008). Then, in 2012, EPA imposed significant Section 112 restrictions on coal??red power plants, see 77 Fed. Reg. 9,304 (Feb. 16, 2012); 40 CPR. Part 63 subpart which the DC. Circuit recently upheld, see also White Stallion Energy CIR, LLC v. EPA, 2014 WL 1420294 (DC. Cir. Apr. 15, 2014). Under the ?literal? reading of Section 111(d), Mem. 26, these rules regulating existing coal-?red power plants under Section 112 prohibit EPA from invoking Section 111(d) to adopt the Proposed Rule. B. Arguments Based Upon A Clerical ?Drafting Error? In The 1990 Clean Air Act Amendments Cannot Displace The ?Literal? Terms Of Section 111(d) Faced with the unambiguous terms of Section 111(d) in the US. Code, EPA falls back in its Legal Memorandum to an erroneous prior analysis that the agency conducted in 2005, in The Honorable Gina McCarthy June 6, 2014 Page 4 which it concluded that Section is actually ?ambiguous? and therefore subject to the agency?s ?reasonable? interpretation. Mem. 8, 26. That 2005 analysiswwhich was part of a rule under Section that the DC. Circuit vacated in New Jersey 12. EPA, 517 F.3d 574?based its conclusion entirely upon a clerical entry in the 1990 Amendments to the Clean Air Act that was not codi?ed in the US. Code but appears in the Statutes at Large. According to EPA, the 1990 Amendments included two entries relevant to Section Both entries appear in the Statutes at Large, but only the ?rst amendment?described by EPA as the ?substantive? one-? was incorporated into the US. Code. EPA argues that the mere existence of the second, clerical amendment creates an ambiguity suf?cient to call into doubt the language of Section in the US. Code. attempt to displace the plain terms of Section was wrong in 2005 and remains so today. 1. The Clerical ?Drafting Error? In The 1990 Clean Air Act Amendments Does Not Create An Ambiguity In The Terms Of Section 111(d) As a threshold matter, analysis is wrong because the one-sentence clerical entry referred to by EPA falls far short of the showing necessary to cast doubt on the plain terms of Section as they appear in the US. Code. The ?Code of Laws of the United States current at any time shall . . . establish prima facie the laws of the United States.? 1 U.S.C. 204(a). As ?prima facie? evidence, the language of Section in the US. Code is displaced only where the US. Code is ?inconsistent? with the Statutes at Large. See Stephan v. United States, 319 US. 423, 426 (1943). There is no inconsistency here. A review of the two relevant entries in the Statutes at Large reveals that the clerical entry does not create an ambiguity or inconsistency, but rather is?as even EPA has admitted?a ?drafting error [that] should not be considered.? 70 Fed. Reg. at 16,031. The ?rst relevant entry appears in the Statutes at Large among a list of other entries making substantive amendments to Section 111. Prior to these amendments in 1990, Section 1 1 1(d) had prohibited EPA from requiring state?by-state regulation of any air pollutant on the list of HAPs published under Section This particular amendment made a significant substantive change by replacing the reference to with the language that now appears in the US. Code??emitted from a source category which is regulated under section 112.? Pub. L. No. 101-549, 108(g), 104 Stat. 2399, 2467 (1990). As a result, the restriction in Section changed from one focused on HAPs regulated under Section 112 to one focused instead on source categories regulated under that section. The second relevant entry appears much later in the Statutes at Large among a list of purely cZerical changes?entitled ?Conforming Amendments.? Pub. L. No. 101-549, 302(a), 104 Stat. 2399, 2474 (1990). As explained in the Senate?s Legislative Drafting Manual, ?Conforming Amendment[s]? are ?amendment[s] of a provision of law that [are] necessitated by the substantive amendments or provisions of the bill.? Senate Legislative Drafting Manual They effectuate the sorts of ministerial changes required to clean up a statute after it has been substantively amended. Thus, conforming amendments ?include[] amendments, The Honorable Gina McCarthy June 6, 2014 Page 5 such as amendments to the table of contents, that formerly may have been designated as clerical amendments.? 1d. Consistent with its description as a conforming amendment, this particular entry sought simply to bring up to date the cross?reference in Section 111(d) to Section Other amendments to the Clean Air Act in 1990 had eliminated Section 112(b)(1)(A) entirely and replaced it with Sections 112(b)(1), 112(b)(2), and 112(b)(3). This clerical amendment was designed solely to account for those changes. Speci?cally, it provided that ?Section 111(d)(1) of the Clean Air Act is amended by striking and inserting in lieu thereof Pub. L. No. 101-549, 302(a). Unlike the substantive amendment described above, this non?substantive amendment would not have changed the restriction in Section 111(d) from its pre-l990 focus on hazardous air pollutants regulated under Section 112. In light of the substantive amendment, however, the second non-substantive amendment was clearly an unnecessary mistake or?drafting error.? When the conforming amendment is applied after the substantive amendment, as is required by the very nature of conforming amendments, there is no clerical correction left to make because the cross- reference to ll2(b)(1)(A) has already been removed by the substantive amendment. This is consistent with the codifier?s notation in the US. Code that the clerical amendment ?could not be executed.? Revisor?s Note, 42 U.S.C. 7411. \Vhere a conforming amendment is entirely unnecessary, it is understood as a clerical mistake that need not be given any effect. See Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1336-37 (DC. Cir. 2013). EPA has correctly recognized as much?noting in 2005, for example, that the clerical entry ?is a drafting error and therefore should not be considered??but it then wrongly determined that it nevertheless ?must attempt to give effect to both the [substantive] and [clerical] [entries], as they are both part of the current law.? 70 Fed. Reg. at 16,031; accord Mem. 21 (recognizing ?apparent drafting errors during enactment of the 1990 CAA Amendments?). This fundamental flaw dooms analysis. As the DC. Circuit recently explained, where a mistake in renumbering a statute and correcting a cross-reference con?icts with substantive provisions of that statute, the mistake should be considered most likely ?the result of a scrivener?s error[]? and should not be treated as ?creating an ambiguity.? Am. Petroleum, 714 F.3d at 1336-37. Under this reasoning, it is clear that the clerical entry simply ?should not be considered,? as EPA originally concluded. 70 Fed. Reg. at 16,031. At the very minimum, the existence of such a non?substantive, ?drafting error? is not enough to overcome the fact that language codi?ed in the US. Code is ?prima facie? evidence of ?the laws of the United States.? 1 U.S.C. 204(a). Put another way, EPA now asserts that the non-substantive and substantive amendments?if each were implemented into Section prior text standing alone?would create two separate versions of Section 111(d). Mem. 24. The ?rst version incorporates only the non-substantive amendment and therefore retains the pre-1990 prohibition on regulating HAPs under Section 111(d), regardless of Whether the source category emitting those HAPs is regulated under Section 112. The second version is the one that actually appears in the US The Honorable Gina McCarthy June 6, 2014 Page 6 Code and substantively changes the prohibition to forbidding EPA from regulating under Section 111(d) any air pollutants emitted by any existing source regulated under Section 112. Mem. 24. But this approach of treating both amendments as, in effect, creating two different version of 111(d) directly contradicts concession that the inclusion of the non-substantive entry in the Statutes at Large was merely a clerical ?drafting error.? Critically, the only evidence EPA may use in its attempt to rebut the terms of Section 111(d) as expressed in the US. Code is the Statutes at Large, see Stephan, 319 US. at 426, and the Statutes at Large simply do not re?ect two separate versions of Section 111(d). Rather, they re?ect only two amendments?one a substantive change and one a mere clerical entry?and the clerical entry is rendered moot by the substantive amendment.3 2. EPA ?5 Policy Arguments Create No Ambiguity In Section 111(d) policy arguments against the ?literal? terms of Section 111(d) also cannot generate an ambiguity where none exists in the plain statutory text. As a threshold matter, even if EPA were correct that the ?literal? terms of Section 111(d) produce overly harsh results for regulatory authority, EPA may not ?redraft a statute in order to avoid what the agency characterized as the ?absurd results? that would ?ow from the statute?s language? where it is, as here, ??not inconceivable that Congress meant what the statute says.?? Ass ?14 of Am. RRS. v. Surface Transp. Bd, 162 F.3d 101, 105 (DC. Cir. 1998) (quoting Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1072 (DC. Cir. 1998)). In any event, policy arguments miss the mark because the ?literal? terms of Section 111(d) are part of a rational regulatory scheme. This regime quite logically avoids subjecting existing sources to both new national standards for hazardous pollutants under Section 112 as well as new state-by-state standards under Section 111, while permitting regulation under both Section 111 and Section 112 of new sources. Unlike with new sources, the imposition of additional regulatory burdens on existing sources raises questions of fairness and lost investments, as existing sources that were built under a different regulatory regime may or may not have the technological or ?nancial ability to come into compliance with two sets of new rules. Indeed, both Sections 112 and 111(d) recognize that the cost of compliance must be weighed against maximum achievable reductions. See 42 U.S.C. 3 Although some had argued in 2005 and 2008 that the clerical entry should take precedence over the substantive entry, EPA repeatedly and properly rejected those arguments as having ?no merit.? Final Brief of Respondent EPA, New Jersey v. EPA, 517 F.3d 574 (DC. Cir. 2008), 2007 WL 2155494, at *103 n.33; accord 70 Fed. Reg. at 16,031- 32. For example, the agency has explained that the so-called ?last in point of arrangement? rule of statutory construction ?is inapplicable here, as it applies to discrete sections of the same Act, not competing amendments to the same section of an Act, as is the case here.? 2007 WL 2155494, at *103 n.33. Indeed, EPA emphatically declared that it is ?hard to conceive? that Congress would have intended to give effect to the clerical change over the substantive change, because, among other things, only the substantive change gives meaning to Section which was also adopted during the 1990 Amendments to the Clean Air Act. Section 112(n)(1)(A) required EPA to conduct a study to determine whether coal?fired power plants ?should even be regulated under section 112.? 70 Fed. Reg. at 15,995. As EPA recognized, this provision is strong evidence that Congress did not wish to subject such power plants to ?duplicative or overlapping regulation,? but rather sought to force EPA to choose between regulating power plants as a source category under Section 112 or 111(d), consistent with the substantive change and not the clerical one. id. at 16,031. The Honorable Gina McCarthy June 6, 2014 Page 7 7411(a)(1), 7411(d), 7412(d). In establishing this regime, under which regulation of existing sources occurs either under Section 112 or Section 111(d), Congress properly determined that requiring the same existing source categories to comply with two ?mctionally-independent regulatory regimes would threaten these sources? economic viability. Indeed, EPA has recently imposed costly regulations on coal-?red power plants, which will cost those plants more than $9 billion dollars per year. See EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards at 3?13 (Dec. 2011), available at lmatsria?nalpdf. Proposed Rule would subject those same plants to billions of dollars of additional costs, through the imposition of duplicative regulatory requirements, forcing many of those plants to close. That is the exact scenario Congress intended to avoid when it amended Section 111(d). In light of this understanding, policy arguments in favor of ignoring Section plain language are insubstantial. EPA ?rst claims that a ?literal reading? of Section 111(d) would be contrary to ?Congress? desire in the 1990 CAA Amendments to require EPA to regulate more substances.? Mem. 25-26. But the mere fact that one of the broad purposes behind the 1990 Amendments was to require EPA to regulate more substances under Section 112 does not mean that Congress was not cognizant of other values, such as the need to avoid costly double regulation. In fact? as EPA itself admitted in its 2005 analysis?the text, structure, and history of the 1990 Amendments indicates a desire by Congress to limit ability to doubly regulate coal-?red power plants. As explained above, the discussion and ultimate adoption of Section 112(n)(1)(A) ?reveals? that Congress did not want to subject coal-?red power plants to ?duplicative or otherwise inef?cient regulation.? 70 Fed. Reg. at 15,999. It is perfectly reasonable to understand Section 111(d) as seeking to forward this same general goal of avoiding duplicative regulation. other policy argument is ?the fact that the EPA has historically regulated non~ HAPs under section 111(d), even where those air pollutants were emitted from a source category actually regulated under section 112.? Mem. 26. But it is no answer to the unambiguous textual requirement in the 1990 Amendments to point to pres-amendment practice of regulating non-HAPs under Section 111(d). EPA at one time enjoyed the power of regulating existing source categories on separate regulatory tracks. See Mem. 9-10 n. 17. When Congress amended the Clean Air Act in 1990 to require EPA to regulate more HAPs under Section 112, however, Congress sensibly paired that increased power with a textual limitation?embodied in Section using that enhanced authority to impose duplicative regulations on the same existing source categories. argument that the ?literal? terms of Section 111(d) would hamstring it from using a provision that it has only used to regulate ?four pollutants from ?ve source categories? in ?forty years,? Mem. 9, cannot possibly provide a basis for disregarding the literal terms of the Clean Air Act. The Honorable Gina McCarthy June 6, 2014 Page 8 3. EPA ?s Attempt To Resolve The Supposed Ambiguity Is Nevertheless Impermissible Even if the clerical error created an ambiguity in Section ?literal? text, analysis would still fail. To begin with, the agency?s claim to some unidenti?ed form of ?deference? for its attempt to rewrite Section 111(d) is meritless. Mem. 12. Courts defer to agencies under the test set forth in Chevron USA, Inc. v. Natural Resources Defense Council, Inc, 467 US. 837 (1984), because there is reason to believe that when Congress ?left ambiguity in a statute,? it ?understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.? Smiley v. Citibank (South Dakota), NA, 517 US. 735, 740-741 (1996). EPA could not possibly argue that Congress intended EPA to resolve the import of Congress?s inadvertent clerical ?drafting error.? Indeed, EPA does not so argue. EPA offers no justi?cation whatsoever for its bald assertion that it is entitled to deference on this issue, and does not even cite to Chevron in its discussion of the issue. In any event, EPA could not possibly prevail under Chevron?or some other similar form of deference?because it offers an ?impermissible construction? of the supposedly ambiguous statute. Aid Ass ?n for Lutherans v. US. Postal Serv, 321 F.3d 1166, 1178 (DC. Cir. 2003). EPA would interpret Section 111(d) as follows: ?Where a source category is regulated under section 112, a section 111(d) standard of performance cannot be established to address any HAPs listed under section 112(b) that may be emitted from that particular source category.? Mem. 26. This is ?atly inconsistent with the substantive provision, embodied in the US. Code, that EPA may not ?establish[] standards of performance for any existing source for any air pollutant . . . emitted from a source category which is regulated under [Section 112 of the 42 U.S.C. 7411(d) (emphasis added). proffered interpretation effectively replaces the term ?any air pollutant? with the term ?hazardous air pollutant.? Even under Chevron, an agency is not entitled to deference when its interpretation is so ?manifestly contrary to the statute.? Mayo Found. for Med. Educ. Research v. United States, 131 S. Ct. 704, 711 (2011) (internal quotations omitted); accord Petit v. US. Dep ?t ofEduc, 675 F.3d 769, 785 (DC. Cir. 2012). If EPA wanted to give effect to its view of both the substantive and the clerical entries in the Statutes at Large?which, as explained above, EPA nonsensically claims create two versions of Section imperrnissibly changing the text of either, it could have done so. As one commentator has explained, all of textual concerns could be satis?ed by interpreting Section 111(d) to prohibit the regulation of ?any air pollutant . . . which is not included on a list published under . . .112(b) [revision of the prior version of Section 111(d) after inputting the clerical entry] or emitted from a source category which is regulated under section 112 [revision of the prior version of Section 111(d) after inputting the substantive entry].? William J. Haun, The Clean Air Act as an Obstacle to the Environmental Protection Agency is Anticipated Attempt to Regulate Greenhouse Gas Emissions ?om Existing Power Plants, 14 Engage: J. Federalist Soc?y Prac. Groups 35, 38 (Mar. 2013) (parentheticals revised). EPA does not??and could not? dispute that this is the only interpretation that gives full effect and meaning to every word of both ?versions? of Section 111(d) that it believes the Statutes at Large embodies. Accordingly, to the extent EPA continues to reject the position that the non-substantive entry must be discarded as an The Honorable Gina McCarthy June 6, 2014 Page 9 inadvertent ?scrivener?s see Am. Petroleum, 714 F.3d at 1337, the agency is duty-bound to adopt this alternative interpretation. refusal to advance or acknowledge this alternative is unsurprising, of course, because under this approach the Proposed Rule would still be unlawful. Under this alternative interpretation, EPA would be prohibited from using Section 111(d) both: (1) to require regulation of any HAP listed in Section 112(b), regardless of whether the HAP is being emitted from a source regulated under Section 112; and (2) to require regulation of any pollutant emitted from a source category that is regulated under Section 112. Even under this alternative reading, EPA still cannot rely on Section 111(d) as a basis for the Proposed Rule because of the regulatory scheme established under Section 112.4 EPA has fundamentally erred in relying upon the ?awed reasoning in the vacated 2005 rule to justify the Proposed Rule. It is simply unconscionable for EPA to go forward with this massive and costly regulation based entirely upon what it has admitted to be a clerical ?drafting error.? I urge you to withdraw the Proposed Rule immediately and avoid needless litigation. Sincerely, WW Wm Patrick Morrisey Attorney General of West Virginia cc: Avi Garbow General Counsel, Environmental Protection Agency Hon. Eric Holder Attorney General, United States Department of Justice 4 In its prior brie?ng on this issue, EPA cited to Citizens to Save Spencer County v. EPA, 600 F.2d 844 (DC. Cir. 1979), to justify its claim that it is entitled to deference. Final Brief of Respondent EPA, New Jersey v. EPA, 517 F.3d 574 (DC. Cir. 2008), 2007 WL 2155494, at *103. In its Legal Memorandum here, EPA does not cite or rely upon this case, and with good reason. In Citizens to Save Spencer County, EPA was forced to deal with a situation where one unquestionably substantive provision speci?cally con?icted with another unquestionably substantive provision. Faced with this truly irreconcilable con?ict between two substantive provisions, the DC. Circuit upheld adeption of an interpretation that gave ?maximum possible effect to both.? 600 F.2d at 872. In the present case, in contrast, the so-called con?ict is between a substantive amendment and a clerical ?drafting error,? in which case the substantive amendment simply prevails. Am. Petroleum, 714 F.3d at 1336?37. In addition, while EPA in Citizens to Save Spencer County had no option but to adopt a middle ground between two irreconcilable statutory commands, here EPA has ignored an interpretation that would give ?maximum effect? to its own view of both the substantive and non-substantive provisions. Search AGG Atterney General a Press Reem 2d1r?1 Press Releases :rAtterney General Patricl-r. lvlerrisey Leads Bipartisan Greup e112 Slates Beet-ting te Gempel EPA te Withdraw Prepesed Regulatien Atterneyr General Patrick lvlerrisey Leads Bipartisan Greup cf 12 States Seeking te Cempel EPA te Withdraw Prepesed Regulatien $1112th Atterney General Patricx fvierrisey teday anneunced that West Virginia led a bipartisan greup ef12 statesthat are asking the U3. Geuri eprpeals in Washingten. D-G-- te declare illegal a settlement agreement in which EPA premised te issue its new-pending rule cencerning existing seal-fired pewer plants- Entered inte in 3311- the settlement agreement cemmitted regulate careen diexide emissiens frem existing ceal-fired pewer plants under Sectien 111(de efthe Clean Air Act- The lawsuit centends that the agreement is illegal eecause ceal-flred pewer plants already are regulated under a separate sectien efthe Clean Air Act and the law expressly prehie'rts the deuele regulatien ef such plants. The greup ef states are challenging the settlement agreement new that EPA has chesen te fellew threugh with its illegal premise- A ruling that EPA made an unlawful ceuld ferce EPA te aeanden currently pending rule- "This lawsuit represents anether effert ey eur ef?ce te invalidate the EPA's prepesed rule that will have devastating effects en Westvirginia'sjees and its ecenemy-" Atterney General rvierrisey said- "Gur Gf?ce will use every legal teel availaele te pretect ceal miners and theirfamilies frem the Geama Administratien and its everreach- We can't afferd te see mere anneuncements like we saw with Alpha Natural Reseurces yesterday-" Alpha Natural Reseurces netified 1.1titl empleyees en Thursday efpetential layeffs and reduced eperatiens at 11 ef mines acress the state. West Virginia wasjeined in the lawsutt ey a bipartisan greup ef states including Alaeama. Indiana, Kansas, Hentucl-ty. Leuisiana- Neerasl-ta- Ghie- Gl-tlahema- Geuth Garelina- Geuth Dal-teta- and Wyeming- A cepy ef the lawsuit can he viewed here- Gentact lnfermatien Eleth Ryan- {dual 558-3321- IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF WEST VIRGINIA, STATE OF ALABAMA, STATE OF INDIANA, STATE OF KANSAS, COMMONWEALTH OF KENTUCKY, STATE OF LOUISIANA, STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF SOUTH DAKOTA, and STATE OF WYOMING Petitioners, PETITION FOR REVIEW V. Case No. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The States of West Virginia, Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina, and Wyoming, and the Commonwealth of Kentucky, respectfully petition this Court, pursuant to Rule 15(a) Of the Federal Rules of Appellate Procedure and the Clean Air Act, 42 U.S.C. 7401 et seq. for review of a ?nal settlement agreement pursuant to Which United States Environmental Protection Agency committed to proposing and then ?nalizing a rule requiring States to regulate existing coal-?red power plants under Section of the CAA, see 42 U.S.C. 7411(d). The settlement agreement is between EPA and various non-party States, governmental entities and private organizations who had threatened litigation against the agency. EPA published a notice of the proposed settlement agreement on December 30, 2010. See 75 Fed. Reg. 82,392 (Dec. 30, 2010). Following a notice and comment period, the settlement agreement was approved as ?nal by EPA on March 2, 2011. See Memorandum from Scott Jordan, Air and Radiation Law Of?ce, to Scott C. Fulton, General Counsel (March 2, 2011). On June 13, 2011, EPA modi?ed the settlement agreement to change certain suggested dates for actions, without otherwise altering commitment to propose and then to ?nalize a Section existing coal-?red power plants rule. This Court has jurisdiction over ?nal actions of EPA pursuant to the CAA, 307(b)(l 42 U.S.C 7607(b)(l). The present petition is, at a minimum, timely under the Clean Air Act?s statutory after-arising-ripeness exception. The CAA requires a petition for review to be brought ?within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.? 42 U.S.C. 7607(b)(1). The CAA speci?cally recognizes an exception to the 60?day requirement for claims that are ?based solely? on grounds that occur after the 60-day period. M. This Court has held that under this statutory exception, a party may bring a challenge to a ?nal agency action within 60 days of an ?occurrence of an event that ripens a claim.? Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 129 (DC. Cir. 2012), a??d in part and vacated in part on other grounds by Utility Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014). Petitioners? claim challenging the legality of the settlement agreement ripened, for purposes of the exception, when EPA declared its ?nal position that it has legal authority to propose and adopt a rule under Section regarding coal-?red power plants notwithstanding intervening events that have rendered such a rule clearly unlawful. On June 11, 201 l, the Supreme Court explained that may not employ [Section if existing stationary sources of the pollutant in question are regulated under . . . the ?hazardous air pollutants? program, 7411(d) [Section 112].? Am. Elec. Power, Inc. v. Connecticut, 131 S. Ct. 2527, 2537 n.7 (2011). Then, on February 16, 2012, EPA ?nalized Section 112 regulations on ?stationary sources? that included coal-?red power plants. See 77 Fed. Reg. 9,304 (Feb. 16, 2012). Notwithstanding the fact that these developments had rendered any Section coal-?red power plants rule plainly unlawful, on June 2, 2014, EPA issued a legal memorandum explaining that EPA had determined that it retains the legal authority to issue just such a Section 1 1(d) rule.1 Consistent with 1 EPA, Legal Memorandum for Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units (?Legal Memorandum? or available at 602-legal-memorandum.pdf. this legal memorandum and the settlement, on June 18, 2014, EPA announced in the Federal Register a proposed rule regarding coal??red power plants under Section In light of these developments, both elements of ripeness are now satis?ed. It was not until announcement of its ?awed View of its Section authority that the ??tness of the issues? that Petitioners seek to raise against the legality of the settlement became ripe ?for judicial resolution.? Abbott Labs. v. Gardner, 387 US. 136, 149 (1967). In addition, the ?hardship to the parties of withholding court consideration? now would be substantial because without this Court?s prompt intervention, Petitioners will be forced to undertake burdensome measures in the coming months to meet the demands of the unlawful rule that EPA committed to proposing and then ?nalizing under the settlement agreement. Id. Petitioners ask this Court: (1) to hold the settlement agreement unlawful to the extent that the settlement commits EPA to proposing a coal-?red power plant rule under Section (2) to hold the settlement agreement unlawful to the extent that the settlement commits EPA to ?nalizing a coal-?red power plant rule under Section (3) to enjoin EPA from complying with the settlement agreement by continuing the present ongoing comment period regarding 2 79 Fed. Reg. 34,830 (June 18, 2014). proposed coal??red power plants rule under Section 111(d); (4) to enjoin EPA from complying with the settlement agreement by ?nalizing a coal-?red power plants rule under Section 111(d); (5) to vacate the settlement agreement in relevant part; and (6) to grant such other relief as this Court deems appropriate. Dated: July 31, 2014 Respectfully submitted, Wax dot/v Patrick Morrisey Attorney General of West Virginia Elbert Lin Solicitor General Counsel ofRecord Misha Tseytlin Deputy Attorney General J. Zak Ritchie Assistant Attorney General State Capitol Building 1, Room 26-E Charleston, WV 25305 Tel. (304) 558-2021 Fax (304) 558-0140 Email: elbert.lin@wvago.gov Counsel for Petitioner State of West Virginia WW Luther Strange Attorney General of Alabama Andrew Brasher Solicitor General Counsel of Record 501 Washington Ave. Montgomery, AL 36130 Tel. (334) 590-1029 Email: abrasher@ago.state.al.us Counsel for Petitioner State of Alabama Gregory F. Zoellei/ Attorney General of Indiana Timothy Junk Deputy Attorney General cause! of Record Indiana Government Ctr. South, Fifth Floor 302 West Washington Street Indianapolis, IN 46205 Tel. (317) 232-6247 Email: Counseifor Petitioner State of Indiana Cite/mg, Mf Deiek ?sch??iidt Attorney General of Kansas Jeffrey A. Chanay Deputy Attorney General Counsel of Record 120 SW 10th Avenue, 3d Floor Topeka, KS 66612 Tel. (785) 368-8435 Fax (785) 291-3767 Email: jeff.chanay@ag.ks. gov Counsel for Petitioner State of Kansas Jack Conway Attorney General of Kentucky Sean Riley Chief Deputy Attorney General Counsel of Record 700 Capital Avenue Suite 1 18 Frankfort, KY 40601 Tel: (502) 696-5650 Email: Sean.Ri1ey@ag.ky.gov Counsel for Petitioner Commonwealth of Kentucky MW James ?Buddy? Caldwell Attorney General of Louisiana Megan K. Terrell Deputy Director, Civil Division Counsel of Record 1885 N. Third Street Baton Rouge, LS 70804 Tel. (225) 326-6705 Email: TerrellM@ag.state.la.us Counsel for Petitioner State of Louisiana Kat/?02 WK M7 Jon Bruning Attorney General of Nebraska Katie Spohn Deputy Attorney General Counset ofRecord 2115 State Capitol Lincoln, NE 68509 Tel. (402) 471-2834 Email: Katie.spohn@nebraska.gov Counsel for Petitioner State of Nebraska Michael DeWine a Attorney General of Ohio Eric E. Murphy State Solicitor Counsel of Record3 30 E. Broad St., 17th Floor Columbus, OH 43215 Tel. (614) 466-8980 Email: gov Counsel for Petitioner State of Ohio Wot/Juice we, MI E. Scott Pruitt Attorney General of Oklahoma Patrick R. Wyrick Solicitor General Counsel of Record P. Clayton Eubanks Deputy Solicitor General 313 NE. let Street Oklahoma City, OK 73105 Tel. (405) 521-3921 Email: Clayton.Eubanks@oag.ok.gov Counsel for Petitioner State of Oklahoma 9W4 ,g/r/W Wilson Attorney General of South Carolina Robert D. Cook Solicitor General James Emory Smith, Jr. Deputy Solicitor General Counsel of Record PO. Box 11549 Columbia, SC 29211 Tel. (803) 734-3680 Fax (803) 734-3677 Email: ESmith@scag.g0V Counsel for Petitioner State of South Carolina 3 Application for admission forthcoming. WW Marty J. ackley Attorney General of South Dakota Roxanne Giedd Deputy Attorney General Counsel of Record 1302 E. Highway 14, Suite 1 Pierre, SD 57501 Tel. (605) 773-3215 Email: roxanne.giedd@state.sd.us Counsel for Petitioner State of South Dakota WM <9 . Mf Pgter K. Michael Attorney General of Wyoming James Kaste Deputy Attorney General Michael J. McGrady Senior Assistant Attorney General Jeremiah I. Williamson Assistant Attorney General Counsel ofRecord 123 State Capitol Cheyenne, WY 82002 Tel. (307) 777-6946 Fax (307) 777-3542 Email: jeremiah.williamson@wyo.gov Connselfor Petitioner State of Wyoming IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF WEST VIRGINIA, STATE OF ALABAMA, STATE OF INDIANA, STATE OF KANSAS, COMMONWEALTH OF KENTUCKY, STATE OF LOUISIANA, STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF SOUTH DAKOTA, and STATE OF WYOMING, Petitioners, PETITION FOR REVIEW v. Case No. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PROVISIONAL CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rules 15(e)(3) and Petitioners state as follows: (A) Parties and Amici: The parties in this case are the State of West Virginia (Petitioner), the State of Alabama (Petitioner), the State of Indiana (Petitioner), the State of Kansas (Petitioner), the Commonwealth of Kentucky (Petitioner), the State of Louisiana (Petitioner), the State of Nebraska (Petitioner), the State of Ohio (Petitioner), the State of Oklahoma (Petitioner), the State of South Carolina (Petitioner), the State of South Dakota (Petitioner), the State of Wyoming (Petitioner), and the United States Environmental Protection Agency (Respondent). There are currently no intervenors or amici. (B) Rulings Under Review: Under review in this case is a settlement agreement between EPA and the States of New York, California, Connecticut, Delaware, Maine, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Massachusetts, the District of Columbia, the City of New York, Natural Resources Defense Council, Sierra Club, and Environmental Defense Fund. The settlement was approved by EPA on March 2, 2011 and modi?ed on June 13, 2011. (C) Related Cases: In re: Murray Energy Corporation, No. 14?1112. Dated: July 31, 2014 Respectfully submitted, Patrick Morrisey Attorney General of West Virginia Elbert Lin Solicitor General Counse! of Record Misha Tseytlin Deputy Attorney General J. Zak Ritchie Assistant Attorney General State Capitol Building 1, Room Charleston, WV 25305 Tel. (304) 558-2021 Fax (304) 558-0140 Email: elbert.1in@wvago. gov Counsel for Petitioner State of West Virginia Ann/W ?ner/Law M7 Luther Strange Attorney General of Alabama Andrew Brasher Solicitor General Counsei of Record 501 Washington Ave. Montgomery, AL 36130 Tel. (334) 590-1029 Email: abrasher@ago.state.al.us Counsel for Petitioner State of Alabama (7mm Gregory F. Zoellerv Attorney General of Indiana Timothy Junk Deputy Attorney General Co nnsei of Record Indiana Government Ctr. South, Fifth Floor 302 West Washington Street Indianapolis, IN 46205 Tel. (317) 232-6247 Email: gov Counsel for Petitioner State of Indiana I 34/. ween/(6% Mi? Die/rel: Sehmbidt Attorney General of Kansas Jeffrey A. Chanay Deputy Attorney General Counsel of Record 120 SW 10th Avenue, 3d Floor Topeka, KS 66612 Tel. (785) 368-8435 Fax (785) 291-3767 Email: jeff.ehanay@ag.ks.gov Counsel for Petitioner State of Kansas Jack ConwayU Attorney General of Kentucky Sean Riley Chief Deputy Attorney General Counsel of Record 700 Capital Avenue Suite 118 Frankfort, KY 40601 Tel: (502) 696-5650 Email: Sean.Ri1ey@ag.ky.gov Counsel for Petitioner Commonwealth of Kentucky ?47% 67W Mr James ?Buddy? Caldwell Attorney General of Louisiana Megan K. Terrell Deputy Director, Civil Division Counsel ofRecord 1885 N. Third Street Baton Rouge, LS 70804 Tel. (225) 326-6705 Email: TerrellM@ag.state.la.us Counsel for Petitioner State of Louisiana wit/w M7 Jon Bruning Attorney General of Nebraska Katie Spohn Deputy Attorney General Counsel ofRecom? 2115 State Capitol Lincoln, NE 68509 Tel. (402) 471-2834 Email: Katie.spohn@nebraska.gov Counsel for Petitioner State of Nebraska 5 Michael DeWine I Attorney General of Ohio Eric E. Murphy State Solicitor Counsel of Record4 30 E. Broad St., 17th Floor Columbus, OH 43215 Tel. (614) 466-8980 Email: Counsel for Petitioner State of Ohio . 20W Mr E. Scott Pruitt a Attorney General of Oklahoma Patrick R. Wyrick Solicitor General Counsel of Record P. Clayton Eubanks Deputy Solicitor General 313 NE. let Street Oklahoma City, OK 73105 Tel. (405) 521-3921 4 Application for admission forthcoming. Email: Clayton.Eubanks@oag.ok.gov Counselfor Petitioner State of Oklahoma 9W W, Alan Wilson Attorney General of South Carolina Robert D. Cook Solicitor General James Emory Smith, Jr. Deputy Solicitor General Counsel of Record PO. Box 11549 Columbia, SC 29211 Tel. (803) 734?3680 Fax (803) 734-3677 Email: ESmith@scag.gov Counsel for Petitioner State of South Carolina WW Wei MT Marty J. ackley Attorney General of South Dakota Roxanne Giedd Deputy Attorney General Counsel of Record 1302 E. Highway 14, Suite 1 Pierre, SD 57501 Tel. (605) 773-3215 Email: roxanne.giedd@state.sd.us Counsel for Petitioner State of South Dakota (P/eter K. Michael Attorney General of Wyoming James Kaste Deputy Attorney General Michael J. McGrady Senior Assistant Attorney General Jeremiah I. Williamson Assistant Attorney General Counsel of Record 123 State Capitol Cheyenne, WY 82002 Tel. (307) 777-6946 Fax (307) 777-3542 Email: jeremiah.williamson@wyo. gov Counsel for Petitioner State of Wyoming CERTIFICATE OF SERVICE I hereby certify that I will cause to be served a true copy of the Docketing Statement, Petition for Review, and Petitioners? Provisional Certi?cate as to Parties, Rulings, and Related Cases via US. mail on the 1st day of August, 2014, upon the following: Regina A. McCarthy, Administrator United States Environmental Protection Agency Of?ce of the Administrator, 1 101A 1200 Ave., NW. Washington, DC 20460 United States Environmental Protection Agency Of?ce of General Counsel, 2310A 1200 Ave., NW Washington, DC 20460 Dated: July 31, 2014 Respectfully submitted, Wt 7' Elbert Lin Counsel for Petitioner State of West Virginia Wayne Stenehjern ATTORNEY GENERAL OFF The Honorable John F. Ker Secretary of State Harry S. Truman Building 2201 Street, NW. Washington, DC 20520 Dear Secretary Kerry: Currently, the United State application relating to the Petition, signed by the Attc issuance of that permit. The project, when approve energy infrastructure, and The pipeline will significai transportation for the devei transport of oil from the bu attribute will add to the co midsection of this nation. 7 Thank you for your conside Sincerely, W015i? Wayne Stenehjem Attorney General State of North Dakota STATE OF NORTH DAKOTA CE OF ATTORNEY GENERAL STATE CAPITOL 600 BOULEVARD AVE DEPT 125 BISMARCK, ND 58505?0040 (701) 328-2210 FAX (701) 328-2226 August 9, 2013 Department of State is reviewing the Presidential Permit expansion of the Keystone Pipeline project. The enclosed rrneys General of 21 states, encourages you to recommend will bolster the nation's economy, modernize the country?s .trengthen our national security. itly serve our national energy needs by providing primary opment of Canadian oil reserves. It will also facilitate the safe ?geoning Bakken oil field in North Dakota and Montana. Each ntry?s energy independence and to the economy of the entire :ration of the enclosed Petition. alfr? Chris Koster Attorney Generai State of Missouri - PETITION A Petition by the undersigned American Attorneys General in support of the transportation by pipeline of North American pr crude oil to American refineries, urging John Kerry, United States Secretary of State, to recommend approval of the Keystone XL pipeline project (?Keystone?). WHEREAS, more than 36% oi the oil that the United States imports comes from countries like Venezuela which are politicain unstable and hence our dependence on them constitutes a threat to national security; and WHEREAS, by doing business with such countries, the United States funds and thereby strengthens regimes which ay or do have anti-democratic and anti?American agendas; and WHEREAS, despite federal subsidies designed to encourage the production and use of renewable energy, the United States, as it economy rebounds, is years away from ending its utilization of nonrenewable resources; and WHEREAS, Canada, with which country the United States has a long term friendiy relationship, possesses vast oil reserves contained in the sands located in its Province of Alberta; and WHEREAS, there is not sufficient existing pipeline capacity to carry crude oil from Aiberta and the states, as well as other )rth American sources, to American refineries; and WHEREAS, increasing pipeline capacity through the construction of Keystone would substantially reduce the United States? dependence on crude oil sources outside of North America; and WHEREAS, the energy infrastructure of the United States and Canada, including their electricity grids and oil and gas pipeline networks, is integrated and Keystone would make it even more efficient; and WHEREAS, the granting of Keystone?s permit application would, in addition to creating untold long-term employment, constitute an immediate boost to the American economy by opening up thousands of construction and manufacturing jobs, and thus causing our unemployment rate to decline; and WHEREAS, a significant amount of the money used by American corporations to buy Canadian oil would likely end up being spent by Canadians, their companies and governments, on United States? goods and services, hereby further boosting our nationai economy; and Keystone Pipeline?Petition WHEREAS, approval of Keysto 1e would thus reduce dependence on oil imports from suppliers which are inherently unstable shield our country from threats to its security, and assure and sustain America?s economic re :overy; WE, the undersigned American Attorneys General, petition John F. Kerry, United States Secretary of State, to move expeditiously to recommend approval of the Keystone XL pipeline project, which has been seekir a presidential permit since 2008. Chris Koster Wayne tenehjem Missouri Attorney General North Dakota Attorney General Lubes/$er Luther Strange Michael Geraghty Alabama Attorney General Alaska Attorney General 48?; ?Eb Tom Horne John .Suthers Arizona Attorney General Colorado Attorney General 3.2 Pam Bondi Sam Olens Florida Attorney General Georgia Attorney General Lawrence G. Wasden re HOW F. ZOEller ldaho Attorney General lana Attorney General Keystone Pipeline-Petition :Dat Derek SChf?idt James ?Buddy? Caldwell Kansas Attorney General Louisiana Attorney General 4% Bill Schuette Tim Michigan Attorney General Montana Attorney General Mike DeWine Ohio Attorney General n\1 Scott Pruitt Oklahoma Attorney General Clam) MM Alan Wilson Marty Jackley South Carolina Attorney General South Dakota Attorney General Joh wallow Ken uccinelli Utah Attorney General Virginia Attorney General WW Wm Patrick Morrisey West Virginia Attorney Gene Brocker, Liz From: Stenehjem, Wayne K. Sent: Monday, April 21, 2014 1:27 PM To: Brocker, Liz Subject: FW: Meetings with UND and NDSU Importance: High From: Stenehjem, Wayne K. Sent: Monday, April 14, 2014 1:18 PM To: ttrenbeath@nd.gov Subject: FW: Meetings with UND and NDSU Importance: High From: -Info?Attorney General Sent: Monday, April 14, 2014 1:16 PM To: Stenehjem, Wayne K. Subject: FW: Meetings with UND and NDSU Importance: High FYI From: andrewpmiller?verizon.net Sent: Monday, April 14, 2014 12:51 PM To: -Info-Attomey General Subject: Meetings with UND and NDSU Wayne, I have received a copy of the agenda for the Williston Basin Conference in Bismarck, which I and John Arrell and Steve Moore of ATK will be attending on May 20th?22nd. I have a room reservation at the Wingate for the nights of May 19th- 20th. At present, however, I am homeless for the night of May 21 St! Should you have an idea as to where I might find a room, please let me know. In any event, as I mentioned at our dinner during the meetings in March, John, Steve and I wish to confer with representatives of both UND and NDSU when we are in Bismarck. I leave it entirely up to you as to whether there ought to be one joint meeting or separate meetings. The purpose of this initiative is to determine whether either university has an interest and the staff capacity to engage in research on hydraulic fracturing in collaboration with the University of Oklahoma. (You may recall that earlier proposal, for a research grant from RIPSEA, crashed when Congress deleted budget in its entirety as part of 1 sequester.) If there is an institutional interest and capacity on the part of each school, we will decide whether both or only one for them should be asked to become partners (a partner) in the project. Again, ATK will be guided by your perspectives. Needless to say, in light of the Bakken play in ND, I trust that the response from both universities to invitation to meet will be af?rmative. I leave it to you to decide where the meeting or meetings should take place. To this end and subject to your approval, I could reserve a conference room at the Wingate on the 20th from 8:00 AM. to 12:00 Noon. Should we have separate meetings, one could start at 8:00 AM. and the other at 10:00. If there is just one meeting, it could start at 9:00 AM. John?s presentation on new technology usually runs about an hour followed by which can last up to another hour. You, of course, need not attend the presentation(s) unless you want to, but are cordially welcome to do so. I will call you in order to get your suggestions on both a meeting place and the number of meetings. ATK, pursuant to your direction, also needs to know whom to invite from each school. Thus, I wish to thank you in advance for your support and look forward to collaborating with you in this further opportunity to involve universities in your State?s economic bonanza. Andy Andrew P. Miller 1503 35th St. NW Washington, DC 20007 202-337?1726 andrewpmillerdeerizonnet