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ORAL ARGUMENT NOT YET SCHEDULED

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14-1112 & 14-1151

In the United States Court of Appeals
for the District of Columbia Circuit
IN RE: MURRAY ENERGY CORPORATION,
Petitioner.
___________________________________________
MURRAY ENERGY CORPORATION,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
REGINA A. MCCARTHY, ADMINISTRATOR,
Respondents.
Brief for Intervenor-Petitioners
National Federation of Independent Business and
Utility Air Regulatory Group
Allison D. Wood
Tauna M. Szymanski
HUNTON & WILLIAMS LLP
2200 Pennsylvania Ave., N.W.
Washington, D.C. 20037
Telephone: (202) 955-1500
awood@hunton.com

Robert R. Gasaway
Dominic E. Draye
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 879-5000
robert.gasaway@kirkland.com

Counsel for Intervenor-Petitioner
Utility Air Regulatory Group

Counsel for Intervenor-Petitioner
National Federation of
Independent Business

Additional Counsel Listed on Signature Page
December 30, 2014

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
CASES
Pursuant to D.C. Circuit Rule 28(a)(1), counsel certifies as follows:
A. Parties and Amici. Because these consolidated cases involve
direct review of agency action, the requirement to furnish a list of parties,
intervenors, and amici that appeared below is inapplicable. These cases
involve the following parties:
Petitioner: The petitioner in Case No. 14-1112 and Case No. 141151 is Murray Energy Corporation.
Respondents: The respondents in Case No. 14-1112 and Case No.
14-1151 are the United States Environmental Protection Agency and
Regina A. McCarthy, Administrator of the U.S. Environmental Protection
Agency.
Intervenor-Petitioners: The intervenor-petitioners in Case No.
14-1112 are the State of Alabama, State of Alaska, State of Indiana, State
of Kansas, Commonwealth of Kentucky, State of Louisiana, State of
Nebraska, State of Ohio, State of Oklahoma, State of South Dakota, State
of West Virginia, State of Wyoming, the National Federation of
Independent Business, and the Utility Air Regulatory Group.

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The intervenor-petitioners in Case No. 14-1151 are the State of
Indiana, the State of Kansas, the State of Louisiana, and the State of
South Dakota.
Intervenor-Respondents: The intervenor-respondents in Case No.
14-1112 are the State of California, State of Connecticut, State of
Delaware, Commonwealth of Massachusetts, State of Maine, State of
Maryland, State of New Mexico, State of New York, State of Oregon, State
of Rhode Island, State of Vermont, State of Washington, the District of
Columbia, the City of New York, Environmental Defense Fund, Natural
Resources Defense Council, and Sierra Club. There are no intervenorrespondents in Case No. 14-1151.
Amici Curiae for Petitioner: The amici curiae for petitioner in
Case No. 14-1112 are the State of South Carolina, the National Mining
Association, and the American Coalition for Clean Coal Electricity. There
are no amici curiae for petitioner in Case No. 14-1151.
Amici Curiae for Respondents: The amici curiae for respondents
in Case No. 14-1112 are the State of New Hampshire, Clean Wisconsin,
Michigan Environmental Council, and Ohio Environmental Council.
There are no amici curiae for respondents in Case No. 14-1151.
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Movant Amici Curiae for Petitioners: The following parties are
movant amici curiae for petitioners in Case No. 14-1112 and Case No. 141151: Chamber of Commerce of the United States of America; National
Association

of

Manufacturers;

American

Fuel

&

Petrochemical

Manufacturers; American Coatings Association, Inc.; American Iron and
Steel Institute; Council of Industrial Boiler Owners; Independent
Petroleum Association of America; and Metals Service Center Institute.
B. Rulings Under Review. The Petitions relate to EPA’s final
determination that it has authority to regulate electric generating units
under Section 111(d) of the Clean Air Act when those units are already
regulated under Section 112 and to EPA’s proposed rulemaking styled
Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units, 79 Fed. Reg. 34,830 (June 18, 2014) (to
be codified at 40 C.F.R. pt. 60).
C. Related Cases. This case is related to West Virginia v. EPA, No.
14-1146, which this Court has ordered to be argued on the same day and
before the same panel as the present case.
Dated: December 30, 2014

/s/Robert R. Gasaway
Robert R. Gasaway

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DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C.
Circuit Rule 26.1, Intervenors provide the following disclosure:
The National Federation of Independent Business (“NFIB”) is a
501(c)(6) non-profit mutual benefit corporation. NFIB is the nation’s
leading association of small businesses, representing 350,000 member
businesses. No publicly-held company has 10% or greater ownership of
NFIB.
The Utility Air Regulatory Group (“UARG”) is an ad hoc,
unincorporated association of individual electric generating companies and
industry groups that participates on behalf of its members collectively in
administrative proceedings under the Clean Air Act, and in litigation
arising from those proceedings, that affect electric generators. UARG has
no outstanding shares or debt securities in the hands of the public and has
no parent company. No publicly held company has a 10% or greater
ownership interest in UARG.

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TABLE OF CONTENTS
Page
STATEMENT OF ISSUES PRESENTED FOR REVIEW .................. XIV
STATUTES AND REGULATIONS ...................................................... XIV
INTRODUCTION ....................................................................................... 1
STANDARD OF REVIEW.......................................................................... 2
SUMMARY OF ARGUMENT .................................................................... 2
STANDING ................................................................................................. 4
ARGUMENT ............................................................................................... 5
I.

THE CLEAN AIR ACT PROHIBITS EPA’S PROPOSED
RULE.................................................................................................... 5
A.

B.

EPA Is Precluded from Regulating Under Section 111(d)
Sources Already Regulated Under Section 112. ..................... 6
1.

The Plain Language of Section 111(d) Precludes
Regulation of Sources Regulated Under Section
112. .................................................................................. 6

2.

Legislative History Confirms that Section 111(d)
Precludes Regulation of Sources Regulated Under
Section 112. ................................................................... 10

EPA’s Statutory Interpretation Violates Separation of
Powers Principles and the Non-delegation Doctrine. ........... 20

II. A WRIT OF PROHIBITION SHOULD ISSUE. ............................... 26
A.

This Case Presents a Rare Circumstance in Which the
Sole Stated Basis for EPA’s Proposed Rule Is a Provision
Under Which EPA Has No Authority to Regulate. .............. 26
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B.

The Proposed Rule Is Already Inflicting Costs on States
and Energy Producers and Consumers. ................................ 30

C.

Granting the Writ in This Rare Case Poses No Risk of
Opening the Floodgates. ........................................................ 36

III. THE APPROPRIATE REMEDY IS A WRIT PROHIBITING
EPA’S RULEMAKING. ..................................................................... 37
CONCLUSION ......................................................................................... 39

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TABLE OF AUTHORITIES
Page(s)
Cases
Alaska Dep’t of Envtl. Conservation v.
EPA, 540 U.S. 461 (2004) .................................................................. 2
Am. Elec. Power Co. v. Conn.,
131 S. Ct. 2527 (2011) ................................................................. 9, 10
Am. Petroleum Inst. v. SEC,
714 F.3d 1329 (D.C. Cir. 2013) ....................................................... 13
Bell Atlantic Cos. v. FCC,
131 F.3d 1044 (D.C. Cir. 1997) ....................................................... 25
Bryant v. Yellen,
447 U.S. 352 (1980) ........................................................................... 5
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984) ............................................................. 24, 25, 26
Conservation Force, Inc. v. Jewell,
733 F.3d 1200 (D.C. Cir. 2013) ....................................................... 34
Diamond v. Charles,
476 U.S. 54 (1986) ............................................................................. 5
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades
Council,
485 U.S. 568 (1988) ......................................................................... 26
EPA v. EME Homer City Generation, L.P.,
134 S. Ct. 1584 (2014) ..................................................................... 30
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ......................................................................... 29
In re Aiken County,
725 F.3d 255 (D.C. Cir. 2013) ......................................................... 29
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* In re Sealed Case,
151 F.3d 1059 (D.C. Cir. 1998) ........................................... 27, 28, 29
In re Wolf, 842 F.2d 464 (D.C. Cir. 1988) ............................................ 2, 26
Indep. Petroleum Ass’n v. Babbitt,
92 F.3d 1248 (D.C. Cir. 1996) ......................................................... 15
Int’l Bhd. of Teamsters v. Dep’t of Transp.,
724 F.3d 206 (D.C. Cir. 2013) ........................................................... 5
Kennecott Greens Creek Mining. Co. v. Mine Safety & Health Admin.,
476 F.3d 946 (D.C. Cir. 2007) ......................................................... 28
Leedom v. Kyne,
358 U.S. 184 (1958) ................................................................... 32, 33
Loving v. United States,
517 U.S. 748 (1996) ......................................................................... 22
Mallard v. U.S. Dist. Court,
490 U.S. 296 (1985) ......................................................................... 36
* New Jersey v. EPA,
517 F.3d 574 (D.C. Cir. 2008) ............................................... 3, 13, 38
POM Wonderful LLC v. Coca-Cola Co.,
134 S. Ct. 2228 (2014) ....................................................................... 9
Rapanos v. United States,
547 U.S. 715 (2006) ......................................................................... 18
Reynolds Metals Co. v. FERC,
777 F.2d 760 (D.C. Cir. 1985) ......................................................... 26
* Schlagenhauf v. Holder,
379 U.S. 104 (1964) ............................................................. 28, 29, 36
Scialabba v. Cuellar de Osorio,
134 S. Ct. 2191 (2014) ..................................................................... 25

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Shays v. Federal Election Comm’n,
414 F.3d 76 (D.C. Cir. 2005) ........................................................... 26
Sierra Club v. Whitman,
285 F.3d 63 (D.C. Cir. 2002) ....................................................... 2, 26
Stephan v. United States,
319 U.S. 423 (1943) ......................................................................... 12
Teva Pharms USA, Inc. v. Sebelius,
595 F.3d 1303 (D.C. Cir. 2010) ....................................................... 32
United States v. Rodriquez,
553 U.S. 377 (2008) ......................................................................... 18
Util. Air Reg. Grp. v. EPA,
134 S. Ct. 2427 (2014) ..................................................................... 29
Watt v. Alaska,
451 U.S. 259 (1981) ......................................................................... 19
West Virginia v. EPA case,
No. 14-1146 ...................................................................................... 31
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ................................................................... 22, 24
Statutes
28 U.S.C. § 1651........................................................................................ 26
42 U.S.C. § 7408.......................................................................................... 9
42 U.S.C. § 7410.......................................................................................... 9
42 U.S.C. § 7411(a),(d) .............................................................................. 30
42 U.S.C. § 7411(d) ..................................................................... 1, 9, 10, 11
* 42 U.S.C. § 7411(d)(1) .......................................................................... 7, 9
42 U.S.C. § 7411(d)(1)(A)(i) ...................................................................... 25
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42 U.S.C. § 7412.......................................................................................... 9
42 U.S.C. § 7412(a)(1) ................................................................................. 8
42 U.S.C. § 7412(a)(2) ................................................................................. 8
42 U.S.C. § 7412(c)...................................................................................... 8
42 U.S.C. § 7412(d) ..................................................................................... 8
42 U.S.C. § 7412(n) ..................................................................................... 8
42 U.S.C. § 7547........................................................................................ 37
42 U.S.C. § 7571........................................................................................ 37
42 U.S.C. § 7607(d)(9) ................................................................................. 2
5 U.S.C. § 706(2) ......................................................................................... 2
Pub. L. 91-604 § 4(a), 84 Stat. 1684 ......................................................... 10
Pub. L. No. 101-549, § 302,
104 Stat. 2399 (1990). ..................................................................... 11
U.S. Const. art. 1 § 1 ................................................................................ 21
U.S. Const. art. 1 § 7, cl. 2 ........................................................................ 21
Rules
D.C. Cir. R. 32(a)(1) .................................................................................... 1
Fed. R. App. P. 32(a)(7) .............................................................................. 1
Fed. R. App. P. 32(a)(7)(B)(iii).................................................................... 1
Fed. R. Civ. P. 35 ...................................................................................... 28
Regulations
42 Fed. Reg. 12,022 (Mar. 1, 1977) ............................................................ 6
42 Fed. Reg. 55,796 (Oct. 18, 1977) ........................................................... 6
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44 Fed. Reg. 29,828 (May 22, 1979) ........................................................... 7
45 Fed. Reg. 26,294 (Apr. 17, 1980) ........................................................... 7
61 Fed. Reg. 9905 (Mar. 12, 1996) ............................................................. 7
69 Fed. Reg. 4652 (Jan. 30, 2004) ............................................................ 14
70 Fed. Reg. 15,994 (Mar. 29, 2005) ...................................... 12, 13, 14, 19
77 Fed. Reg. 9304 (Feb. 16, 2012) ........................................................ 8, 15
79 Fed. Reg. 34,830 (June 18, 2014) .......................................... 4, 5, 30, 31
Other Authorities
Comments of Laurence H. Tribe and Peabody Energy Corporation,
Carbon Pollution Emission Guidelines for Existing Stationary
Sources: Electric Utility Generating Units, Docket ID No. EPAHQ-OAR-2013-0602-23587 (Dec. 1, 2014) ...................................... 23
EPA, Air Emissions from Municipal Solid Waste Landfills—Background
Information for Final Standards and Guidelines, Pub. No. EPA453/R-94-021 (1995), available at
http://www.epa.gov/ttn/atw/landfill/bidfl.pdf ................................. 13
H.R. Rep. No. 101-490 (1990) ................................................................... 11
Legal Memorandum for Proposed Carbon Pollution Emission Guidelines
for Existing Electric Utility Generating Units ...... 14, 18, 20, 24, 35
S. 1630, 101st Cong. § 112(e)(4)-(5)(D) (as passed by Senate, Apr. 3,
1990) ................................................................................................. 11
S. 1630, 101st Cong., § 108 (Oct. 27, 1990) ............................................. 17
White House Message .............................................................................. 16

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GLOSSARY
CAA

Clean Air Act

EPA

United States Environmental Protection Agency

EGU(s)

Electric Utility Steam-Generating Unit(s)

NFIB

National Federation of Independent Business

UARG

Utility Air Regulatory Group

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STATEMENT OF ISSUES PRESENTED FOR REVIEW
In the extraordinary circumstance where a federal agency bases a
proposed regulation on a single statutory provision that entirely prohibits
the type of regulation proposed by the agency, should a writ of prohibition
issue to halt the rulemaking proceedings where the agency’s erroneous
determination that it has authority to initiate the rulemaking raises
serious constitutional concerns and the proceedings themselves are
imposing tangible, demonstrable harms on the States that must
implement the regulations and the parties targeted for regulation and
their customers?
STATUTES AND REGULATIONS
All applicable statutes and regulations are contained in the Brief for
petitioner Murray Energy Corporation (“Murray”).

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INTRODUCTION
As

explained

by

petitioner

Murray,

the

proposed

Environmental Protection Agency (“EPA”) rule at issue contemplates
regulation of electric generating unit (“EGU”) emissions on the
authority of Section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C.
§ 7411(d), even though EPA lacks any authority to regulate these
sources under that provision. As Murray further explains, both the
Agency itself and this Court have previously construed the CAA to
say the opposite of the Agency’s current Section 111(d)
interpretation. Because Section 111(d) is the only basis for the
proposed rule cited by the Agency in the rulemaking at issue;
because Section 111(d) forecloses any regulation under its auspices of
the EGUs targeted by EPA, which are already regulated under
Section 112; because EPA’s misinterpretation of Section 111(d) raises
serious constitutional concerns; and because the very pendency of
this rulemaking is imposing current, tangible, demonstrable harms
on utilities and their customers, this Court should issue an
extraordinary writ of prohibition to prevent the Agency from
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STANDARD OF REVIEW
Courts reviewing agency action shall “hold unlawful and set
aside agency action” that is “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; [or] (C) in excess
of statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2); see also 42 U.S.C. § 7607(d)(9).
This standard applies to petitions for review of agency action.
Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 496-97
(2004). In the context of a writ of prohibition, the petitioner must
also establish a “clear and indisputable right” to relief. In re Wolf,
842 F.2d 464, 465 (D.C. Cir. 1988) (internal quotation omitted) (per
curiam). Review of non-final rules adds another step of analysis—
the petitioner must establish that it has “no other adequate forum in
which to seek relief.” Sierra Club v. Whitman, 285 F.3d 63, 69 (D.C.
Cir. 2002).
SUMMARY OF ARGUMENT
A writ of prohibition is uncommon relief, but this EPA
rulemaking is uncommonly unlawful.

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In this rulemaking, the Agency has announced its definitive
legal conclusion that it enjoys authority to regulate existing EGUs
based on a provision of the CAA—Section 111(d)—that entirely
precludes EPA from regulating those sources. The text of Section
111(d), EPA’s own interpretations of the provision, the precedent of
this Court, and legislative history all confirm that sources that are
regulated under Section 112, like the EGUs at issue here, may not be
further regulated under Section 111(d). See New Jersey v. EPA, 517
F.3d 574, 583 (D.C. Cir. 2008) (“[U]nder EPA’s own interpretation of
the section [111(d)], it cannot be used to regulate sources listed
under section 112.”). (See Section I infra).
In this extraordinary and rare case, an extraordinary writ of
prohibition should issue. EPA bases its rulemaking proceeding
solely on a statutory provision that entirely prohibits the
contemplated regulation—and then mistakenly justifies its proposal
on interpretive grounds that give rise to violations of separation-ofpowers principles and the non-delegation doctrine. Moreover, the
mere pendency of the proposed rule is already imposing substantial
costs on States, utilities, and their customers. Accordingly, the
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Court should reach the merits of Murray Energy’s challenge now and
issue the requested extraordinary relief as a proportionate response
to the Agency’s extraordinary transgression of the bounds on its
authority. (See Section II infra.)
STANDING
Intervenor-Petitioners have standing to challenge EPA’s
rulemaking.
The National Federation of Independent Business (“NFIB”)
includes numerous businesses that purchase electricity from the
grid. See Decl. of K. Harned (Attachment A). Increases in the cost of
electricity disproportionately impact small businesses, and EPA
itself concedes that its contemplated rule will increase energy costs.
79 Fed. Reg. at 34,934 (“average nationwide retail electricity prices
are projected to increase by roughly 6 to 7 percent in 2020 relative to
the base case, and by roughly 3 percent in 2030”). NFIB’s own
research confirms that these costs are a major concern of its
members. See Decl. of K. Harned at 2. Because one or more of
NFIB’s member organizations would have standing to participate in
this case, and the issue presented for review is germane to

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Intervenor’s purpose, NFIB enjoys standing under this Court’s
organizational standing doctrine. Int’l Bhd. of Teamsters v. Dep’t of
Transp., 724 F.3d 206, 212 (D.C. Cir. 2013).
The members of the Utility Air Regulatory Group (“UARG”) are
electric generating companies and trade associations that are the
target of the regulation at issue. UARG’s standing under Teamsters
is therefore self-evident. If more were needed, however, it is clear
that electric generating companies are already suffering actual
injury in fact from EPA’s mere promulgation of the proposed
regulation. See Decl. of W. Penrod (Attachment B).
Finally, Intervenor-Petitioners note that EPA is challenging
Murray’s standing to bring this case. NIFB and UARG contend that
Murray enjoys standing. Should Murray be found to lack standing,
however, the standing of the Intervenor-Petitioner States, NFIB, and
UARG would allow the case to proceed. See Diamond v. Charles, 476
U.S. 54, 68 (1986); Bryant v. Yellen, 447 U.S. 352, 366, 368 (1980).
ARGUMENT
I.

The Clean Air Act Prohibits EPA’s Proposed Rule.
EPA rests its proposed rule on a single statutory foundation—

“the authority of Clean Air Act (CAA) section 111(d).” 79 Fed. Reg.
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at 34,832. But as petitioner Murray explains, the statute in fact
precludes EPA from regulating under Section 111(d) the sources
targeted by the Agency’s proposal. Indeed, EPA’s efforts to obscure
the clarity of Section 111, and the related provisions of CAA Section
112, are not only unpersuasive; they give rise to violations of the
Constitution’s non-delegation and separation-of-powers doctrines.
As explained below, these constitutional infirmities are avoidable
simply by interpreting and applying the statute as written.
A.

EPA Is Precluded from Regulating Under Section
111(d) Sources Already Regulated Under Section
112.

This Court’s precedent, the Act’s legislative history, and EPA’s
own past administrative practice all confirm that sources regulated
under Section 112 are unambiguously exempt from further
regulation under Section 111(d).
1.

The Plain Language of Section 111(d)
Precludes Regulation of Sources Regulated
Under Section 112.

Section 111(d) is an obscure, seldom-used CAA provision,
employed by EPA only four times between 1970 and 1990 and only
once after the 1990 amendments. 42 Fed. Reg. 12,022 (Mar. 1, 1977)
(phosphate fertilizer plants); 42 Fed. Reg. 55,796 (Oct. 18, 1977)
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(sulfuric acid production facilities); 44 Fed. Reg. 29,828 (May 22,
1979) (Kraft pulp mills); 45 Fed. Reg. 26,294 (Apr. 17, 1980) (primary
aluminum plants); 61 Fed. Reg. 9905 (Mar. 12, 1996) (municipal
solid waste landfills).
To briefly recap, Section 111(d) requires the Administrator to
prescribe regulations for controlling pollution from “any existing
source”:
i.

for which air quality criteria have not been
issued or which is not included on a list
published under section 7408 (a) of this title or
emitted from a source category which is
regulated under section 7412 of this title but

ii.

to which a standard of performance under this
section would apply if such existing source were
a new source....

42 U.S.C. § 7411(d)(1) (emphasis added).
Section 111(d) thus applies by its terms only to sources that are
“not ... regulated under section 7412 [i.e., Section 112] of this title.”
Id. The only merits question in this very straightforward case is,
accordingly, whether existing EGUs are a source category regulated
under Section 112.
Turning to Section 112, the CAA requires the Administrator to
identify categories of “major sources” and “area sources,” id.
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§ 7412(c), and to “promulgate regulations establishing emission
standards” for those sources in accordance with the statute, id.
§ 7412(d). And consulting the various subsections of Section 112
leaves no doubt that, under appropriate circumstances and based on
appropriate EPA showings, existing EGUs may be regulated under
that provision. 42 U.S.C. § 7412(a)(1) (defining “major source”); id.
§ 7412(a)(2) (defining “area source”); id. § 7412(n) (providing the EPA
Administrator “shall regulate electric utility steam generating units
under this section, if the Administrator finds that such regulation is
appropriate and necessary” after considering the results of a
mandated study).
As explained in detail by petitioner Murray, EPA has in fact
invoked its Section 112(n) authority to regulate emissions from
existing EGUs. Br. for Petitioner at 3-5; see also 77 Fed. Reg. 9304
(Feb. 16, 2012) (the “MATS rule”) (“Pursuant to CAA section 112, the
EPA is establishing NESHAP that will require coal- and oil-fired
EGUs to meet hazardous air pollutant (HAP) standards reflecting
the application of the maximum achievable control technology.”).

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Because EPA has adopted the MATS rule for existing EGUs
under Section 112, it is crystal clear that EPA may not
simultaneously regulate existing EGUs under Section 111(d). As the
Supreme Court recently affirmed, “traditional rules of statutory
interpretation” do not “change because an agency is involved.” POM
Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014).
Given that EPA is currently regulating existing EGUs under Section
112, the carve-out from Section 111(d) unambiguously withholds
authority for EPA to layer on additional Section 111(d) regulations of
those same sources. See Am. Elec. Power Co. v. Conn., 131 S. Ct.
2527, 2537 n.7 (2011) (“EPA may not employ § 7411(d) if existing
stationary sources of the pollutant in question are regulated under
the national ambient air quality standard program, §§ 7408–7410, or
the ‘hazardous air pollutants’ program, § 7412.”) (citing 42 U.S.C.
§ 7411(d)(1)). Regardless of what EPA might do to tweak, tailor, or
trim back its proposed regulatory program in light of rulemaking
comments, the plain terms of the CAA render unlawful any
regulation under Section 111(d) of existing EGUs already being
regulated under Section 112.
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Legislative History Confirms that Section
111(d) Precludes Regulation of Sources
Regulated Under Section 112.

Although the statutory text needs no reinforcement, the history
underlying Section 111(d)’s enactment confirms what the text
establishes and American Electric Power recognizes.
For the first two decades of its existence, the exclusion in
Section 111(d) applied to “any existing source for any air pollutant ...
not included on a list published under section 108(a) or
112(b)(1)(A)....” Pub. L. 91-604 § 4(a), 84 Stat. 1684. The Clean Air
Act amendments of 1990 then amended the exclusion to focus on
source categories as well as pollutants:
“any existing source for any air pollutant ... not included
on a list published under section 7408(a) of this title or
emitted from a source category which is regulated under
section 7412 of this title….”
42 U.S.C. § 7411(d) (emphasis added). Accordingly, both before and
after the 1990 amendments, the exclusion based on Section 108 (the
NAAQS regime) focused on the pollutant at issue—that is, the
Section 108 exclusion turned on whether the pollutant was already
covered by a NAAQS.

The exclusion for Section 112 pivoted,

however, from focusing on pollutants regulated under Section 112(b)
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to asking whether particular source categories were subject to
Section 112 regulation—regardless of whether or not the pollutant in
question was limited by those Section 112 regulations.
This shift in focus emerged from a drafting process in which
the Senate and House of Representatives initially passed different
language amending Section 111(d). The House bill provided the
language currently found in 42 U.S.C. § 7411(d). See Pub. L. No.
101-549, § 302, 104 Stat. 2399, 2467 (1990). The Senate, which first
passed its bill two months before the House adopted its substantive
change to Section 111(d), initially adopted a simple clerical change to
Section 111(d), one that merely updated a cross-reference from
“112(b)(1)(A)” to “112(b).” See 104 Stat. 2574. S. 1630 (containing
the ministerial cross-reference) passed on April 3, 1990, while H.R.
3030 (containing the substantive provision) passed on May 23, 1990.
See H.R. Rep. No. 101-490, at 454 (1990), JA__, reprinted in 2 A
LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990
(“LEG. HISTORY”), at 3021, 3478 (1993) (report to accompany H.R.
3030); S. 1630, 101st Cong. § 112(e)(4)-(5)(D) (as passed by Senate,
Apr. 3, 1990), JA__, reprinted in 3 LEG. HISTORY, at 4119, 4431-33.
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Although the Senate’s technical amendment had a role to play prior
to the House’s substantive amendment, once the House amendment
was adopted, inclusion of the earlier technical amendment in the
Statutes at Large was simply a “drafting error,” as EPA has
previously and properly recognized. 70 Fed. Reg. 15,994, 16,031
(Mar. 29, 2005). Hence, while the Statutes at Large do include both
amendments, those amendments’ codification in the United States
Code rightly embodies the House’s later, substantive amendment in
total preference to the Senate’s earlier, conforming amendment.
To be sure, the Statutes at Large would control in the event
this codification decision were ever determined to be in error. See
Stephan v. United States, 319 U.S. 423, 426 (1943). But as to these
provisions, the decision of the codifier and the text of the United
States Code are entirely correct.
In its first action under Section 111(d) following the 1990
amendments, EPA recognized the legal necessity and logical
persuasiveness of conforming the exclusion in amended Section
111(d) to align with the amended version of Section 112. EPA, Air
Emissions from Municipal Solid Waste Landfills—Background
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Information for Final Standards and Guidelines, Pub. No. EPA453/R-94-021,

at

1-5

to

1-6

(1995),

http://www.epa.gov/ttn/atw/landfill/bidfl.pdf,

JA__

available
(“EPA

at
also

believes that [the House amendment] is the correct amendment
because the Clean Air Act amendments revised section 112 to
include regulation of source categories in addition to regulation of
listed hazardous air pollutants, and [the House amendment] thus
conforms to other amendments of section 112.”).
Moreover, as EPA previously maintained before this Court—
again correctly—the Senate’s conforming amendment, which was
rendered unnecessary by the later, substantive House amendment,
was a mere “drafting error.”

See 70 Fed. Reg. at 16,031.

Accordingly, as this Court stated, “under EPA’s own interpretation of
the section [111(d)], it cannot be used to regulate sources listed
under section 112.” New Jersey v. EPA, 517 F.3d at 583; see also Am.
Petroleum Inst. v. SEC, 714 F.3d 1329, 1336-37 (D.C. Cir. 2013)
(courts should disregard drafting errors in interpreting statutes).
Accordingly, EPA has repeatedly conceded that a “literal” reading of
the Code precludes the Agency from regulating a source category
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under both Section 112 and Section 111(d). 70 Fed. Reg. at 16,031;
accord Legal Memorandum at 26 (“[A] literal reading ... would mean
that the EPA could not regulate any air pollutant from a source
category regulated under section 112.”); Br. of EPA, New Jersey v.
EPA, No. 05-1097, 2007 WL 2155494 at 105 (D.C. Cir. July 23, 2007)
(“[A] literal reading ... could bar section 111 standards for any air
pollutant, hazardous or not, emitted from a source category that is
regulated under section 112.”); 69 Fed. Reg. 4652, 4685 (Jan. 30,
2004) (“A literal reading ... is that a standard of performance under
CAA section 111(d) cannot be established for any air pollutant that is
emitted from a source category regulated under section 112.”).
After decades of correctly interpreting the statute, however,
EPA now describes Section 111(d) as an “ambiguous provision[]” and
argues that the Agency is free to disregard the controlling House
Amendment. See Legal Memorandum for Proposed Carbon Pollution
Emission Guidelines for Existing Electric Utility Generating Units
(“Legal Memorandum”) at 21.

As an initial matter, this view

represents a reversal of EPA’s past practice without providing a
legitimate reason for the change. See Indep. Petroleum Ass’n v.
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Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996) (“An agency must treat
similar cases in a similar manner unless it can provide a legitimate
reason for failing to do so.”). EPA has provided no legitimate reason
for changing its position at this juncture and inaugurating
duplicative Section 111(d) and Section 112 regulation of the same
sources. Indeed, EPA claims that the MATS rule will reduce carbon
dioxide emissions from EGUs, the exact focus of the proposed Section
111(d) rule. 77 Fed. Reg. at 9428.
More fundamentally, however, the relevant legislative history
confirms that the codification appearing in the United States Code
correctly reflects the law enacted by Congress.
The 1990 Clean Air Act amendments significantly widened
Section 112’s regulatory ambit, in part by shifting the focus of that
provision from risk-based regulation of individual hazardous
pollutants to control technology-based regulation of categories of
major sources emitting hazardous pollutants. See EPA, “Summary
of

the

Clean

Air

Act,”

http://www2.epa.gov/laws-

regulations/summary-clean-air-act, JA__; H.R. Rep. No. 101-490, at
151 (1990), JA__, reprinted in 2 LEG. HISTORY, at 3175; S. Rep. No.
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101-228, at 148 (1990), JA__, reprinted in 5 LEG. HISTORY at 8338,
8488.
But just as the focus of Section 112 regulation changed from
risk-based regulation of pollutants to control technology-based
regulation of source categories, so too did the focus of the Section
111(d) carve-out. In the wake of the 1990 amendments, Section
111(d) now operates unambiguously to forbid simultaneous
regulation of the same sources under Sections 111(d) and 112—both
of which now authorize control technology-based regulations.
Significantly, the White House proposed precisely this shift in
Section 111(d), which was ultimately passed by the House, accepted
by the Senate, and codified into law. See White House Message at
112, JA__ (“(d) Regulation of Existing Sources. — Section
111(d)(1)(A)(i) of the Clean Air Act is amended by striking ‘or
112(b)(1)(A)’ and inserting ‘or emitted from a source category which
is regulated under section 112’.”). The White House proposal thus
embodied both transformative changes to (and a vast expansion of)
regulation under Section 112 in tandem with the elimination of the

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authority to regulate simultaneously the same source categories
under both Sections 111(d) and 112.
Although the Senate initially passed a non-substantive
conforming amendment (described above), the managers of the
Senate bill stated expressly in their conference report reconciling
alternate versions of the 1990 amendments that they were deferring
or “receding” to the substantive House amendment:
Conference agreement. The Senate recedes to the House
except that with respect to the requirement regarding
judicial review of reports, the House recedes to the
Senate, and with respect to transportation planning, the
House recedes to the Senate with certain modifications.
S. 1630, 101st Cong., § 108 (Oct. 27, 1990), JA__, reprinted in 1 LEG.
HISTORY at 885 (1998) (Chafee-Baucus Statement of Senate
Managers) (emphasis added).

Both Houses of Congress thus

announced their understanding that the 1990 amendments would do
away with the outdated pollutant-based exclusion appearing in the
pre-1990 version of Section 111(d) and replace it with a source
category-based exclusion aligned with the newly amended, and now
control technology-based, provisions of Section 112.

Congress

wanted to avoid costly, onerous, duplicative regulation of source

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categories under both Sections 111(d) and 112. Congress wanted to
avoid costly, onerous, duplicative regulation of source categories
under both Sections 111(d) and 112.
Nonetheless, in an unexplained reversal of its prior position,
EPA now relies on its own divination of congressional purposes,
rather than employing traditional tools for reading statutes in light
of statutory text, structure, and legislative history. E.g., Legal
Memorandum at 26. But these arguments based on “advancing ‘the
purpose of the Act’” are mistaken. Rapanos v. United States, 547
U.S. 715, 752 (2006) (“[N]o law pursues its purpose at all costs, and
... the textual limitations upon a law’s scope are no less a part of its
‘purpose’ than its substantive authorizations.”); see also United
States v. Rodriquez, 553 U.S. 377, 385 (2008) (rejecting an “argument
based on [the statute’s] ‘manifest purpose’”).
Furthermore, EPA’s current legal analysis overlooks that the
Senate passed only a “conforming amendment[],” a fact it has
previously conceded. Pub. L. No. 101-549, § 302, 104 Stat. 2399
(1990); 70 Fed. Reg. 16,030. Hence, even assuming an examination
of “general purposes” were appropriate (and it is not), the one and
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only purpose of the Senate amendment was to conform Section
111(d) to the newly amended provisions of Section 112. And, as
explained by petitioner Murray, this goal is fully and fairly
accomplished simply by giving effect to the House amendment.
In the alternative, however, even assuming EPA now wishes to
depart from its previously established and correct view that
inclusion of the Senate amendment in the Statutes at Large was a
mere drafting error, its new Section 111(d) interpretation remains
fatally flawed. Any such change in agency position—even if such an
alternative interpretation were permissible—would still have to give
effect to each individual clause appearing in the Statutes at Large.
See Watt v. Alaska, 451 U.S. 259, 267 (1981). Hence, under such an
alternative construction, the House amendment would remain
operative and would still prohibit EPA from regulating any
emissions from a source category (in this case, the EGU source
category) regulated under Section 112, while the Senate amendment
would, under this scenario, further prohibit EPA from regulating any
pollutant covered by Section 112.

Under such an alternative

construction, then, the provisions would operate in parallel and
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would together prohibit EPA from establishing standards of
performance under Section 111(d) if either the source category or the
pollutant in question were regulated under Section 112. Embracing
an alternative construction giving substantive effect to the Senate’s
amendment, even assuming such a construction were permissible,
thus serves only to further restrict EPA’s authority.

Such a

construction does nothing to broaden the Agency’s authority under
the Act.
B.

EPA’s Statutory Interpretation Violates Separation
of Powers Principles and the Non-delegation
Doctrine.

EPA’s principal response to the unambiguous terms of Section
111(d) is to rely on what it describes as a newly discovered
“ambiguity” in the statutory text. Specifically, EPA posits that
“ambiguities” resulted from the “drafting errors that occurred during
the enactment of the 1990 CAA amendments.” Legal Memorandum
at 21. As a result, the Agency maintains, “two different amendments
to section 111(d) were enacted.” Id. According to the Agency, these
two amendments “conflict with each other,” and this “conflict”

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empowers EPA to construe Section 111(d) to allow regulation of
sources covered by Section 112. Id. at 23.
Of course, the “drafting errors” cited by EPA are none other
than the all-too-familiar differences between the House amendment
and the Senate’s ultimately unnecessary conforming amendment,
which EPA has been aware of for years. Accordingly, the whole
premise of EPA’s interpretation is mistaken.
But beyond mistaken, EPA’s interpretation is unconstitutional.
The Constitution vests “[a]ll legislative Powers” granted to the
federal government in “a Congress of the United States, which shall
consist of a Senate and House of Representatives.” U.S. Const. art. 1
§ 1. The Constitution further provides that every “Bill,” in order to
“become a Law,” must pass both the House of Representatives and
the Senate and either be approved by “the President of the United
States” or be “approved by two thirds” of both Houses, thus
overriding the President’s veto. Id. art. 1 § 7, cl. 2.
Because the Constitution vests all federal legislative powers in
Congress, and because Congress can enact laws only by following the
constitutional requirements of bicameralism and presentment to the
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President, the Constitution does not allow agencies to pick and
choose between supposedly conflicting legislative enactments.
Rather, “[t]he fundamental precept of the delegation doctrine is that
the lawmaking function belongs to Congress ... and may not be
conveyed to another branch or entity.” Loving v. United States, 517
U.S. 748, 758 (1996). As the Supreme Court has explained, among
the possible forms that unconstitutional delegation may assume is a
delegation by Congress to an agency of a choice between competing
versions of a statute. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
473 (2001) (“The very choice of which portion of the power to exercise
... would itself be an exercise of the forbidden legislative authority.”)
(emphasis original). Accordingly, where Congress enacts a law and
contemplates that it will be carried into execution by an executive
officer or agency, Congress itself (not the officer or agency) must
articulate a constitutionally adequate “intelligible principle” to guide
the executive action. Id. at 472.
As Professor Laurence Tribe aptly observes, EPA’s interpretive
approach in this rulemaking violates these fundamental precepts by
seeking to license the Agency “to operate as a junior-varsity
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Comments of Laurence H. Tribe and

Peabody Energy Corporation, Carbon Pollution Emission Guidelines
for Existing Stationary Sources: Electric Utility Generating Units,
Docket ID No. EPA-HQ-OAR-2013-0602-23587, at 29 (Dec. 1, 2014).
As Professor Tribe felicitously puts it, “not even Congress is
authorized to legislate by tossing two substantively different
versions of a law into the air and empowering an executive agency to
decide which one to catch and run with.” Id. at 28; see also id. at 5
(“EPA’s claim that it is entitled to pick and choose which version [of
section 111(d)] it prefers represents an attempt to seize lawmaking
power that belongs to Congress.”) (emphasis original).
EPA nonetheless reads Section 111(d) in a manner that
maintains that no single statutory text empowers the Agency to act,
and no single intelligible principle, or set of intelligible principles,
channels the Agency’s exercise of discretion under the law. Instead
of a single enacted law, the Agency posits “two conflicting
amendments.” Legal Memorandum at 25. EPA then goes on to
maintain that the Agency may reconcile this purported conflict—in
what is itself an act of discretion—by curtailing the reach of
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substantive provisions of law that the House framed, the Senate
accepted, and the President signed. Id.; see also id. at 26 (“[I]t is not
reasonable to give full effect to the House language”).
EPA’s whole underlying premise—that two 1990 amendments
were enacted, each containing a competing “intelligible principle”—
thus acknowledges that the Agency’s interpretation reflects precisely
the sort of agency “choice” regarding “which portion of [statutory]
power to exercise” that Whitman rejects as “itself ... an exercise of
the forbidden legislative authority.” 531 U.S. at 473 (emphasis
original).
Finally, EPA asserts that its statutory interpretation is
“entitled to deference.” Legal Memorandum at 12. But EPA’s new
interpretation is entitled to no deference under Chevron U.S.A., Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984), nor under
any other doctrine governing judicial deference to administrative
interpretations of law.

At the first step of Chevron’s two-step

analysis, an Agency must deploy all traditional canons of statutory
construction to determine whether Congress’s intent with respect to
a specific question is unambiguous. See Bell Atlantic Cos. v. FCC,
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131 F.3d 1044, 1047 (D.C. Cir. 1997). But, as discussed above, the
carve-out from Section 111(d) for pollution “emitted from a source
category which is regulated under section 7412 of this title” contains
no ambiguity.

42 U.S.C. § 7411(d)(1)(A)(i).

And even if such

ambiguity existed, resort to legislative history and past agency
practice confirms that the Agency’s novel, constitutionally
problematic interpretation is not permissible. See supra Part I.A.
EPA engages none of this analysis and instead discovers
ambiguity in what it describes as contradictory amendments. Legal
Memorandum at 23. But even if two lawfully enacted provisions of
law are irreconcilable, “Chevron is not a license for an agency to
repair a statute that does not make sense.” Scialabba v. Cuellar de
Osorio, 134 S. Ct. 2191, 2214 (2014) (Roberts, C.J., concurring). In
other words, “[d]irect conflict is not ambiguity, and the resolution of
such a conflict is not statutory construction but legislative choice.”
Id. (emphasis added).

Here, the Agency endeavors to “concoct

ambiguity” for purposes of invoking Chevron. Shays v. Federal
Election Comm’n, 414 F.3d 76, 108 (D.C. Cir. 2005). But as in Shays,
so too here the Court should reject this effort, especially in view of
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the serious constitutional questions that would otherwise result.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 576-77 (1988) (rejecting agency’s
interpretation in light of constitutional difficulties).
II.

A Writ of Prohibition Should Issue.
EPA’s proposed rulemaking gives rise to extraordinary

circumstances that justify a writ of prohibition.
A.

This Case Presents a Rare Circumstance in Which
the Sole Stated Basis for EPA’s Proposed Rule Is a
Provision Under Which EPA Has No Authority to
Regulate.

A writ of prohibition is an extraordinary remedy authorized by
the All Writs Act, 28 U.S.C. § 1651. Reynolds Metals Co. v. FERC,
777 F.2d 760, 762 (D.C. Cir. 1985). To warrant issuance of the writ,
petitioners must establish that they enjoy a “clear and indisputable
right” to relief, In re Wolf, 842 F.2d 464, 465 (D.C. Cir. 1988)
(quotation marks and citation omitted), and that no other avenue of
relief would be adequate, Sierra Club, 285 F.3d at 69; In re Sealed
Case, 151 F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (explaining that the
grounds for issuing writs of prohibition and mandamus are “virtually

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identical” and hence the writs can be employed interchangeably).
This standard is demanding, but not insurmountable.
Here, EPA’s very initiation of this rulemaking represents a
remarkable lapse in the Agency’s adherence to law—one that greatly
and immediately prejudices utility customers (like NFIB’s members),
utility suppliers (like Murray), utility regulators (like those
represented by various state intervenors), and utilities themselves
(like UARG’s members). As explained above, the Agency’s stated
legal basis for this rulemaking offers no possibility that the Agency
might promulgate a lawful final rule within the scope of its proposal.
Any final rule regulating EGUs on authority of Section 111(d) would
be plainly unlawful. And any final rule regulating sources other
than EGUs under Section 111(d), or regulating EGU emissions
under a CAA provision other than Section 111(d) would not be a
“logical outgrowth” of EPA’s proposed rule. Kennecott Greens Creek
Mining. Co. v. Mine Safety & Health Admin., 476 F.3d 946, 950 (D.C.
Cir. 2007). In these highly unusual circumstances, EPA has only one
lawful course of action—to withdraw its proposal in its entirety.

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This Court’s decision in In re Sealed Case is instructive. That
decision identifies a “category of cases in which mandamus is
appropriate” based on the Supreme Court decision in Schlagenhauf
v. Holder, 379 U.S. 104 (1964). In re Sealed Case, 151 F.3d at 1066.
In Schlagenhauf, a district court construed Federal Rule of Civil
Procedure 35 to order a civil defendant to undergo a physical
examination, 379 U.S. at 108-09, even though the plain text of the
Rule precluded this construction.

Because the Schlagenhauf

petitioner’s question was purely legal, presented an issue of first
impression, and was easily resolved based on the Rule’s text, the
Supreme Court held that the question was properly decided on
mandamus. Id. at 110.
In the wake of Schlagenhauf, this Court has held that
petitioners demonstrate a “clear and indisputable” right to relief in
cases where an agency or lower court decides an “important” legal
question in plain violation of the law. In re Sealed Case, 151 F.3d at
1066-67. Here, the legal question at the heart of this case is at least
as important and straightforward as the questions at issue in
Schlagenhauf and In re Sealed Case. For reasons explained in Part I
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supra, provided EGUs are regulated under Section 112, which they
are, EPA cannot deploy Section 111(d) in any way to regulate those
same EGUs. Moreover, any question regarding the importance of
EPA’s statute-stretching effort to regulate greenhouse gas emissions
was resolved by the Supreme Court earlier this year, when the Court
pointedly rebuked EPA’s claims to “unheralded power to regulate ‘a
significant portion of the American economy.’” Util. Air Reg. Grp. v.
EPA, 134 S. Ct. 2427, 2444 (2014) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). This Court has
likewise recognized separation-of-powers concerns as worthy of
protection via extraordinary writ. In re Aiken County, 725 F.3d 255,
267 (D.C. Cir. 2013) (“[O]ur constitutional system of separation of
powers would be significantly altered if we were to allow executive
and independent agencies to disregard federal law....”). Accordingly,
Schlagenhauf applies with full force, and “under these unusual
circumstances and in light of the authorities,” an extraordinary writ
is appropriate. 379 U.S. at 110.

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The Proposed Rule Is Already Inflicting Costs on
States and Energy Producers and Consumers.

Although still a proposed rulemaking, EPA’s action is already
ripe for review. The proposed rule is imposing costs on States, utility
customers, and electric generators, which have commenced efforts
now to meet the deadlines the Agency has announced. The issues in
this case are therefore appropriately postured for review.
Standing.

The structure of the CAA aims to promote

“cooperative activities” between EPA and the States. EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584, 1594 (2014). Section
111(d) serves this goal through a system by which EPA identifies the
“best system of emission reduction” and States then develop
implementation plans for the sources within their borders. 42 U.S.C.
§ 7411(a), (d). Under normal conditions, state plans target a specific
pollutant and impose burdens on a small subset of the local economy.
EPA’s current rulemaking, however, departs from this model.
Instead of identifying a specific “best system of emission reduction,”
it announces emissions targets at the state level, leaving to the
States the massive task of altering the entire network of electricity
production to meet those targets. See, e.g., 79 Fed. Reg. at 34,925
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(“Instead, the EPA is proposing to establish state emission
performance goals for the collective group of affected EGUs in a
state....” (emphasis added)); id. at 34,833 (“this proposal lays out
state-specific CO2 goals”).
Because of the massive task bearing down on them, States
have no choice but to begin preparing now so they can reorganize
their energy markets to comply with EPA’s proposed rule in
accordance with EPA’s announced timeframes.

Absent special

circumstances, the proposed rule requires States to submit their
plans to EPA by June 30, 2016. 79 Fed. Reg. at 34,915. With such a
compressed timeframe in which to plan for such a major alteration to
their economies, States have no choice but to begin modeling and
designing their state plans and standards of performance now.
Alabama, Indiana, Kansas, Kentucky, South Dakota, West Virginia,
and Wyoming have filed declarations in the related West Virginia v.
EPA case, No. 14-1146, attesting to the costs they have incurred
from EPA’s determination that it enjoys authority to regulate EGUs
under both Section 112 and Section 111(d).

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Moreover, this Court has held that “it makes no difference to
the ‘injury’ inquiry whether the agency adopted the policy at issue in
an adjudication, a rulemaking, a guidance document, or indeed by
ouija board; provided the projected sequence of events is sufficiently
certain, the prospective injury flows from what the agency is going to
do....” Teva Pharms USA, Inc. v. Sebelius, 595 F.3d 1303, 1312 (D.C.
Cir. 2010) (emphasis added) (citation omitted).

Given EPA’s

assertion of authority under Section 111(d), the States face a
“realistic threat” that the chain of events already in motion will end
in mandates that contradict the terms of the CAA.
Beyond the States’ standing, private parties like petitioner
Murray and Intervenors NFIB and UARG also have standing to
challenge EPA’s action in excess of its statutory authority. When a
labor organization subject to regulation by the National Labor
Relations Board challenged that body’s certification of a bargaining
unit, the Supreme Court held that review was available to resolve
the union’s claim that the Board transgressed “a definite statutory
prohibition.”

Leedom v. Kyne, 358 U.S. 184, 189 (1958).

This

outcome prevailed despite the absence of a statutory right to bring
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Here, too, a “definite statutory

prohibition” compels the conclusion that EPA may not force utilities
and their customers to bear the cost of complying with an unlawful
rule by announcing that requirements are coming such that a
prudent agent would begin incurring compliance costs even before
the regulation is finalized. Id. at 189.
Notwithstanding the CAA’s “definite statutory prohibition,”
owners and operators of EGUs are, right now, prudently and
reasonably expending significant money, time, and resources to
prepare to comply.

For example, Sunflower Electric Power

Corporation in Kansas is actively considering projects that could
achieve EPA’s recommended 6 percent heat rate efficiency
improvement for existing coal-fired EGUs. Decl. of W. Penrod ¶¶ 56. Some of these projects would necessarily involve long-term capital
improvement projects that necessitate expensive and timeconsuming engineering design studies. Id. ¶ 6. Because EPA would
require compliance beginning in 2020, many of these projects must
commence immediately and as a result design costs are already
being incurred. Id. ¶ 7. Of course, these costs must be passed on to
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electricity customers, including NFIB’s members, in the form of
higher electricity rates. Id. ¶¶ 12-13.
Justiciability. Whatever changes the Agency might adopt as
a result of the ongoing notice-and-comment process, the statutory
violation at the heart of the rule is effectively final.

EPA’s

rulemaking notice repeatedly cites Section 111(d) as the sole basis
for this Agency rulemaking. See, e.g., 79 Fed. Reg. at 34,852-54,
34,950.

Moreover, to bolster its analysis, the Agency issued a

separate Legal Memorandum explaining its theory of how Section
111(d) is “ambiguous” and thus provides EPA with authority to
regulate. See Legal Memorandum at 20-27; see also 79 Fed. Reg. at
34,853 (incorporating the Legal Memorandum).
EPA’s lengthy discussion of Section 111(d) and the absence of
any alternative statutory foundation make the lawfulness of the
rulemaking’s legal foundations ripe for review. This Court will not
“entangle” itself in cases based on a mere “speculative possibility”
that a controversy might arise. Conservation Force, Inc. v. Jewell,
733 F.3d 1200, 1206 (D.C. Cir. 2013) (quotation and alteration
omitted).

Here, however, the disagreement between EPA and
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Intervenor-Petitioners is based on much more than speculation. The
Agency has articulated its legal position in both the rulemaking and
an accompanying Legal Memorandum and has identified no
alternative grounds to which it could retreat after the notice-andcomment process exposes the flaws in that position. Indeed, the
Legal Memorandum demonstrates that the Agency has already
eschewed its prior position regarding the relationship between
Sections 111(d) and 112. See Legal Memorandum at 20-27.
Although not yet final, the proposed rule is properly subject to
judicial review via issuance of a writ of prohibition.

The only

alternative to a writ of prohibition—waiting and petitioning for
review of a final agency rule—is wholly inadequate to redress the
injuries that States, utility customers, utility suppliers, and utilities
themselves are already experiencing in light of the significant costs
States and utilities are now incurring to prepare to implement the
proposed rule. Forcing Intervenors to wait until the rule becomes
final before permitting them to bring a challenge will cause
irreparable injury. The unlawful proposal in question covers nearly
every producer and nearly every consumer of electricity and is
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already forcing utilities and their customers to incur compliance
costs.
C.

Granting the Writ in This Rare Case Poses No Risk
of Opening the Floodgates.

As the Supreme Court noted in Schlagenhauf, it is only in
“unusual circumstances” that the controlling text of a governing
legal provision completely bars a challenged action. 379 U.S. at 110.
There is little risk, then, that issuing an appropriate writ in this case
will open broad new byways around the traditional avenues of
judicial review. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 309
(1985) (granting writ of mandamus while cautioning that
“mandamus remains an extraordinary remedy”).
Section 111(d) has been used to regulate only five source
categories in the past 40 years. 79 Fed. Reg. at 34,844. The provision
is obscure, and the issue before the Court is unique to the rarely
used Section 111(d).
Given these highly unusual circumstances, this Court need not
fear that issuing the writ in this case will open a door to myriad
similar petitions. The type of gross and enormously consequential
legal error committed by EPA in this case is extraordinarily
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uncommon—it is as if EPA were proposing to regulate commercial
aircraft engines under the CAA provisions authorizing regulation of
emissions from “nonroad engines and vehicles” (like all-terrain
vehicles and snowmobiles), 42 U.S.C. § 7547, while entirely
overlooking the statutory provision that expressly authorizes aircraft
emission standards, 42 U.S.C. § 7571. Here, the Agency’s mistake is
similar but far more extreme—it arises, not from mere inadvertence,
but from well-considered interpretive errors of constitutional
dimension. And here, EPA is inflicting current harms based on this
unconstitutional, categorically mistaken position, as it invokes an
entirely inapplicable provision as the sole basis for some of the most
far-reaching rules in its history. In these unusual circumstances,
immediate relief is warranted.
III. The Appropriate Remedy Is A Writ Prohibiting EPA’s
Rulemaking.
There is no doubt that EGUs are being regulated by EPA under
Section 112. Accordingly, EPA enjoys no authority to proceed with a
duplicative layer of regulation under Section 111(d). Indeed, this
Court has been clear in insisting on formal de-listing before the
Agency can maintain that a certain source is not covered by Section
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112. New Jersey v. EPA, 517 F.3d 574, 581, 583 (D.C. Cir. 2008)
(“[O]nce the Administrator determined in 2000 that EGUs should be
regulated under Section 112 and listed them under section 112(c)(1),
EPA had no authority to delist them without taking the steps
required under section 112(c)(9),” and “EPA … concedes that if EGUs
remain listed under section 112, … then the [Section 111(d)]
regulations for existing sources must fall.”). The only remedy for this
ultra vires rulemaking is a writ prohibiting EPA from proceeding
with the rulemaking.

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CONCLUSION
For the foregoing reasons, this Court should grant Murray’s
Petitions and issue a writ of prohibition barring EPA from
proceeding with its unlawful proposal to regulate EGUs under
Section 111(d) of the Clean Air Act.
December 30, 2014

Respectfully submitted,

/s/ Allison D. Wood
Allison D. Wood
Tauna M. Szymanski
HUNTON & WILLIAMS LLP
2200 Pennsylvania Ave., N.W.
Washington, D.C. 20037
Telephone: (202) 955-1500
Facsimile: (202) 778-2201
awood@hunton.com

/s/ Robert R. Gasaway
d
Robert R. Gasaway
Dominic E. Draye
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
Telephone: (202) 879-5000
Facsimile: (202) 879-5200
robert.gasaway@kirkland.com

Counsel for Intervenor Utility
Air Regulatory Group

C. Boyden Gray
Adam Gustafson
BOYDEN GRAY & ASSOCIATES,
PLLC
1627 I St NW #950
Washington, DC 20006
Telephone: (202) 955-0620
cbg@boydengray.com
Counsel for Intervenor
National Federation of
Independent Business

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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), I hereby certify that this
brief contains 6,998 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Cir. R. 32(a)(1), on the
basis of a count made by the word processing system used to prepare
the brief.

/s/ Dominic E. Draye
Dominic E. Draye

d
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CERTIFICATE OF SERVICE
I hereby certify that on this day, December 30, 2014, I filed the
above document using the ECF system, which will automatically
generate and send service to all registered attorneys participating in
this case.
/s/ Dominic E. Draye
Dominic E. Draye

d
d