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EDF and Other Ngos [PDF] USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 1 of 28 ORAL ARGUMENT NOT YET SCHEDULED No. 16-1127 (and consolidated cases) UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______________________________________ MURRAY ENERGY CORPORATION, et al. Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. Respondents. ____________________________________ On Petition for Review of Final Agency Action of the United States Environmental Protection Agency, 81 Fed. Reg. 24,420 (Apr. 25, 2016) ____________________________________ BRIEF OF NON-GOVERNMENTAL ORGANIZATION INTERVENORS ____________________________________ NEIL GORMLEY SEAN H. DONAHUE JAMES S. PEW Donahue & Goldberg, LLP Earthjustice 1111 14th Street, N.W., Suite 510A 1625 Massachusetts Avenue, NW Washington, D.C. 20005 Suite 702 (202) 277-7085 Washington, DC 20036 [email protected] (202) 667-4500 PAMELA A. CAMPOS Counsel for Chesapeake Bay Foundation, GRAHAM G. MCCAHAN Chesapeake Climate Action Network, VICKIE L. PATTON Clean Air Council, Downwinders at Risk, Environmental Defense Fund Environmental Integrity Project, 2060 Broadway, Suite 300 National Association for the Boulder, CO 80302 Advancement of Colored People, and (303) 447-7228 the Sierra Club Counsel for Environmental Defense Fund Additional Counsel Listed On Signature Block. USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 2 of 28 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), Respondent-Intervenors American Lung Association, American Public Health Association, Chesapeake Bay Foundation, Chesapeake Climate Action Network, Citizens for Pennsylvania’s Future, Clean Air Council, Conservation Law Foundation, Downwinders at Risk, Environmental Defense Fund, Environmental Integrity Project, National Association for the Advancement of Colored People, Natural Resources Council of Maine, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, and The Ohio Environmental Council (collectively, “Non-Governmental Organization Intervenors”) hereby certify as follows: Parties and Amici. All parties, intervenors, and amici appearing in this Court are listed in the Brief for Petitioners, filed November 18, 2016, and the Brief for Respondent United States Environmental Protection Agency (EPA), filed January 18, 2017, except for the following: (1) National Congress of American Indians, Great Lakes Indian Fish and Wildlife Commission, Bad River Band of Lake Superior Chippewa Indians, Fond du Lac Band of Lake Superior Chippewa, Grand Traverse Band of Ottawa and Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, Little River Band of Ottawa Indians, and St. Croix Chippewa Indians of Wisconsin; (2) Institute for Policy Integrity at New York University School of USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 3 of 28 Law; (3) American Thoracic Society; and (4) Elsie Sunderland, Joel D. Blum, Celia Y. Chen, Charles T. Driscoll, Jr., David C. Evers, Philippe Grandjean, Daniel A. Jaffe, Robert P. Mason, and Noelle Eckley Selin, all of whom filed their amicus curiae briefs on January 25, 2017. Rulings Under Review. Petitioners challenge a final rule entitled, “Supplemental Finding That It Is Appropriate and Necessary to Regulate Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units.” 81 Fed. Reg. 24,420 (April 25, 2016). Related Cases. Non-Governmental Organization Intervenors adopt the statement of related cases set forth in the Brief of Respondent EPA. ii USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 4 of 28 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure and Circuit Rule 26.1, Respondent-Intervenors American Lung Association, American Public Health Association, Chesapeake Bay Foundation, Chesapeake Climate Action Network, Citizens for Pennsylvania’s Future, Clean Air Council, Conservation Law Foundation, Downwinders at Risk, Environmental Defense Fund, Environmental Integrity Project, National Association for the Advancement of Colored People, Natural Resources Council of Maine, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, and The Ohio Environmental Council state that they are not-for-profit, non-governmental organizations whose missions include protection of public health and the environment, conservation of natural resources, and eliminating race-based discrimination. None of the organizations has any outstanding shares or debt securities in the hands of the public, or any parent, subsidiary, or affiliate that has issued shares or debt securities to the public. DATED: February 10, 2017 /s/ Sean H. Donahue SEAN H. DONAHUE Donahue & Goldberg, LLP 1111 14th Street, N.W., Suite 510A Washington, D.C. 20005 (202) 277-7085 [email protected] iii USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 5 of 28 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............................................................................................. i CORPORATE DISCLOSURE STATEMENT ....................................................... iii TABLE OF AUTHORITIES ..................................................................................... v GLOSSARY ............................................................................................................ vii STATUTES AND REGULATIONS ......................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 3 I. LARGE REDUCTIONS IN POWER PLANTS’ HAZARDOUS EMISSIONS RESULT IN VITAL PUBLIC BENEFITS OF THE KIND SECTION 112 WAS ENACTED TO SECURE ................................................ 3 A. Under Section 112, Reducing Emissions of Listed Hazardous Air Pollutants is an Urgent Priority and a Valuable Public Benefit ................ 4 B. Power Plants Emit Large Amounts of Multiple Listed Hazardous Air Pollutants, Posing a Significant Hazard to Health and the Environment .............................................................................................. 6 C. The Significant Benefits of Controlling Air Toxics Can be Considered Even If Not Monetized .............................................................................. 8 II. EPA’S PREFERRED APPROACH TO CONSIDERING COSTS IS LAWFUL ......................................................................................................... 12 III. EPA PERMISSIBLY RELIED UPON THE BENEFIT-COST ANALYSIS IN ITS REGULATORY IMPACT ANALYSIS AS AN ALTERNATIVE BASIS FOR ITS FINDING ............................................................................. 15 CONCLUSION ........................................................................................................ 17 CERTIFICATES OF COMPLIANCE AND SERVICE iv USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 6 of 28 TABLE OF AUTHORITIES CASES Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427 (D.C. Cir. 1973) ....................... 14 Lignite Energy Council v. EPA, 198 F.3d 930 (D.C. Cir. 1999) ........................ 12,14 *Michigan v. EPA, 135 S. Ct. 2699 (2015) ............................................... 2,12,13,16 Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) ............................. 14 Portland Cement Ass’n v. Train, 513 F.2d 506 (D.C. Cir. 1975) ............................ 14 Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) .............. 9,14 Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ................................................. 5 *United States Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) ...................... 16 STATUTES 42 U.S.C. 7411 ......................................................................................................... 14 42 U.S.C. 7411(a) .................................................................................................... 14 42 U.S.C. 7411(a)(1) ................................................................................................ 14 *42 U.S.C. 7412 ........................................................................................... 1,2,3,8,11 42 U.S.C. 7412(b) ...................................................................................................... 4 42 U.S.C. 7412(b)(2)............................................................................................... 3,4 42 U.S.C. 7412(b)(3)(C) ............................................................................................ 5 42 U.S.C. 7412(c)(9)(B) ............................................................................................ 9 42 U.S.C. 7412(c)(9)(B) ............................................................................................ 6 v USCA Case #16-1127 Document #1660822 Filed: 02/10/2017 Page 7 of 28 42 U.S.C. 7412(d) .................................................................................................... 13 *42 U.S.C. 7412(n)(1)(A) ................................................................. 8,11,12,13,15,16 LEGISLATIVE HISTORY 1990 CAA Leg. Hist. 2,522 (House Debate) ............................................................. 4 1990 CAA Leg. Hist. 2,524 (House Debate) ............................................................. 4
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