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P:\00000 USSC\15-1152 Amicus (Colorado)\15-1152 Amici Brief.Wpd NO. 15-1152 In the Supreme Court of the United States STATE OF MICHIGAN, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF AMICI CURIAE THE STATES OF COLORADO, GEORGIA, LOUISIANA, MONTANA, NEVADA, SOUTH DAKOTA, AND WISCONSIN IN SUPPORT OF PETITIONERS CYNTHIA H. COFFMAN GLENN E. ROPER Attorney General Deputy Solicitor General Counsel of Record FREDERICK R. YARGER Solicitor General Office of the Colorado Attorney General DAVID BLAKE 1300 Broadway Chief Deputy Denver, Colorado 80203 Attorney General [email protected] (720) 508-6000 Counsel for Amici Curiae (additional counsel listed at end) Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES................... ii INTEREST OF AMICI CURIAE ............... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ............................ 2 ARGUMENT............................... 5 I. This case is an ideal vehicle for deciding whether a federal agency has the power to enforce an unlawful rule, and that question is one of exceptional importance..................... 5 A. This case is an ideal vehicle for answering the question........................... 6 B. Vacatur of unlawful rules is necessary to induce agencies to act within their statutory authority. ............................ 6 C. Recent aggressive agency actions show the need for clear limits..................... 9 II. The Court should resolve whether and under what circumstances “remand without vacatur” is permissible. ............................ 13 A. Remand without vacatur is contrary to the text of the APA and has never been approved by this Court. ........................ 14 B. Courts are divided as to whether remand without vacatur is permissible and, if so, when it may be ordered................. 16 CONCLUSION ............................ 21 ii TABLE OF AUTHORITIES CASES Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993) ...... 4, 16, 17, 19 Black Oak Energy, LLC v. FERC, 725 F.3d 230 (D.C. Cir. 2013) .............. 16 Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271 (11th Cir. 2015) ............. 18 Camp v. Pitts, 411 U.S. 138 (1973) ...................... 14 Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) ............. 5, 17 Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009) .............. 7, 17 In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) ........ 7, 8, 9, 17 Council Tree Commc’ns v. FCC, 619 F.3d 235 (3d Cir. 2010) ................ 15 Council Tree Investors v. FCC, 131 S. Ct. 1784 (2011) .................... 15 FCC v. NextWave Pers. Commc’ns, Inc., 537 U.S. 293 (2003) ...................... 14 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ....................... 2 iii Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326 (1976) ................... 14, 15 Fox TV Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) ............. 16 Harrington v. Chao, 280 F.3d 50 (1st Cir. 2002) ................ 20 Honeywell Int’l, Inc. v. EPA, 374 F.3d 1363 (D.C. Cir. 2004) .......... 17, 18 Honeywell Int’l, Inc. v. EPA, 393 F.3d 1315 (D.C. Cir. 2005) ............. 18 Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) ............... 18 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) ....................... 14 Michigan v. EPA, 135 S. Ct. 2699 (2015) ................ passim Milk Train, Inc. v. Veneman, 310 F.3d 747 (D.C. Cir. 2002) .............. 17 Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) ............. 19 Natural Res. Def. Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) .............. 7 North Dakota v. EPA, No. 3:15-cv-59, 2015 U.S. Dist. LEXIS 113831 (D.N.D. Aug. 27, 2015) .................... 11 iv Ohio v. U.S. Army Corps of Eng’rs, No. 15-3751 (6th Cir. Oct. 9, 2015) .......... 11 Pub. Citizen Health Research Grp. v. U.S. Dep’t of Labor, 557 F.3d 165 (3d Cir. 2009) ................ 19 Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1043 (7th Cir. 1992) ............ 8, 20 West Virginia v. EPA, 136 S. Ct. 1000 (2016) .................... 10 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ..................... 3, 4 Wyoming v. U.S. Dep’t of Interior, No. 2:15-CV-043-SWS, 2015 U.S. Dist. LEXIS 135044 (D. Wyo. Sep. 30, 2015) ............. 12 STATUTES 5 U.S.C. § 706(2)(A) ...................... 14, 17 42 U.S.C. § 7401(a)(3) ..................... 1, 13 42 U.S.C. § 7407 ............................ 1 42 U.S.C. § 7410 ............................ 1 42 U.S.C. § 7416 ............................ 1 42 U.S.C. § 7420 ............................ 1 42 U.S.C. § 7506 ............................ 1 Colo. Rev. Stat. §§ 25-7-101 to -139 ............. 1 v OTHER AUTHORITIES Black’s Law Dictionary (6th ed. 1990) .......... 14 Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,675 (Oct. 23, 2015) .................................. 10 Kristina Daugirdas, Note, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemakings, 80 N.Y.U. L. Rev. 278 (2005) ............................ 7, 19 EPA’s Opp. to Stay Mot., West Virginia v. EPA, No. 15-1363 (D.C. Cir. Dec. 3, 2015) ......... 10 Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 507 (1985) .......... 4 Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291 (2003) ............................... 4, 19 Janet McCabe, In Perspective: The Supreme Court’s Mercury and Air Toxics Rule Decision, EPA Connect (June 30, 2015), https://blog.epa.gov/ blog/2015/06/in-perspective-the-supreme-courts- mercury-and-air-toxics-rule-decision ........ 12 Gina McCarthy, Remarks at Harvard School of Public Health Voices in Leadership Event (Feb. 29, 2016), http://www.hsph.harvard. edu/voices/events/mccarthy (hosting video and transcript) ............................. 10 vi Gina McCarthy, Remarks at IHS Energy CERAWeek (Feb. 24, 2016), https://www. youtube.com/watch?v=knlDVXS2n2A (hosting video) ................................. 10 Notice of Suppl. Information, North Dakota v. EPA, No. 3:15-cv-59 (D.N.D. 2015), ECF No. 73 .... 11 Op. Br. for Fed. Appellants, Wyoming v. S.M.R. Jewell, Nos. 15-8126, 15-8134 (10th Cir. Mar. 21, 2016) .................................. 12 Pet. Cert., Council Tree Investors v. FCC, No. 10- 834, 2010 U.S. S. Ct. Briefs LEXIS 4666 (Dec. 22, 2010) ............................... 15 Richard J. Pierce, Jr., Administrative Law Treatise § 7.13 (5th ed. 2010) ...................... 21 Brian S. Prestes, Remanding Without Vacating Agency Action, 32 Seton Hall L. Rev. 108 (2001) ........................... 19, 20 Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards, EPA-HQOAR-2009- 0234-20131 .............................. 3 Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without Vacatur in Administrative Law, 36 Ariz. St. L.J. 599 (2004) .................................. 7 Abby Smith & Doug Obey, EPA Reportedly Hints ESPS Compliance Date Could Remain Despite Stay, InsideEPA.com, Feb. 18, 2016 ...... 10, 11 vii Stephanie J. Tatham, Admin. Conf. of the U.S., The Unusual Remedy of Remand Without Vacatur (Jan. 3, 2014) ..................... 6, 8, 9, 15 1 INTEREST OF AMICI CURIAE Like many statutes intended to protect the environment, the Clean Air Act establishes a system of cooperative federalism. Under this system, States have “primary responsibility” for air pollution prevention and control. See 42 U.S.C. §§ 7401(a)(3), 7407(a). They design and adopt implementation plans for air quality standards, id. §§ 7407, 7410; assess and collect penalties for violation of the Act, id. § 7420; and enforce their own state laws regarding air quality. See, e.g., Colo. Rev. Stat. §§ 25-7-101 to -139 (Colorado Air Pollution Prevention and Control Act); see also 42 U.S.C. § 7416 (affirming, with some exceptions, “the right of any State … to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution”). Yet even while States play a primary role in the federal statutory scheme, they are still subject to federal regulations promulgated by the Environmental Protection Agency and can be subject to severe penalties for failing to satisfy those regulations. See, e.g., 42 U.S.C. § 7506. Unless, of course, a court stays or vacates the regulations as unlawful. Like the Petitioner States, the amici States have both a sovereign and a practical interest in assuring that federal agencies implement regulations lawfully and do not stray beyond the bounds of the authority granted them by Congress. States and their citizens are harmed when, as this Court held occurred in this very case, federal agencies abandon “reasoned decisionmaking” and act beyond the scope of their lawful authority. See Michigan v. EPA, 135 S. Ct. 2699, 2 2706 (2015). That harm is exacerbated when a court improperly leaves the agencies’ unlawful regulations in force rather than vacating them. In the interest of protecting the rights of sovereign States, local governments, and individual citizens, the amici States urge this Court to grant the Petition for writ of certiorari. INTRODUCTION AND SUMMARY OF ARGUMENT “Regardless of how serious the problem an administrative agency seeks to address, … it may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (quotation omitted). Last term, this Court held that EPA violated that principle and failed to “operate within the bounds of reasonable interpretation” when it refused to consider costs in determining whether to regulate power plant emissions. Michigan, 135 S. Ct. at 2707. The Court held that EPA “must consider cost—including, most importantly, cost of compliance—before deciding whether regulation is appropriate and necessary.” Id.
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