Nos.

20-1530, 20-1531, 20-1778, 20-1780

IN THE
Supreme Court of the United States
________________

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
________________
On Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
_________________________________________________

BRIEF OF THE CATO INSTITUTE AND

MOUNTAIN STATES LEGAL FOUNDATION
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
_________________________________________________

Joseph A. Bingham Ilya Shapiro

MOUNTAIN STATES Counsel of Record
LEGAL FOUNDATION William Yeatman*
2596 S. Lewis Way CATO INSTITUTE
Lakewood, CO 80237 1000 Mass. Ave., NW
(303) 292-2021 Washington, DC 20001
jbingham@mslegal.org (202) 842-0200
ishapiro@cato.org

*Admitted to the D.C. Bar

under D.C. App. R. 46-A.
December 16, 2021 Supervised by a D.C. Bar
member.
 i

QUESTION PRESENTED
Whether 42 U.S.C. § 7411(d), an ancillary
provision of the Clean Air Act, authorizes the
Environmental Protection Agency to issue significant
rules—including those capable of reshaping the
nation’s electricity grids and unilaterally
decarbonizing virtually any sector of the economy—
without any limits on what the agency can require so
long as it considers cost, non-air impacts, and energy
requirements?
 ii

TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 1
ARGUMENT ............................................................. 4
I. THE COURT MUST ESTABLISH A
ROBUST MAJOR QUESTIONS
DOCTRINE TO PROTECT
RELIANCE INTERESTS FROM THE
LEGAL INSTABILITY CAUSED BY
PRESIDENTIAL ADMINISTRATION ....... 4
II. A PROPOSED FRAMEWORK TO
IDENTIFY “MAJOR” RULES ..................... 7
A. Is the Agency “Filling in the
Details” or “Answering Major
Questions”?............................................... 8
B. Is the Agency Action “Historic”? ............. 9
C. Did Congress Try to Do What the
Agency Is Doing?.................................... 10
CONCLUSION ........................................................ 11
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Chamber of Commerce v. DOL,
885 F.3d 360 (5th Cir. 2018) .................................. 7
DHS v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 ........................................................ 6
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................................ 8
FERC v. Elec. Power Supply Ass'n, 577 U.S. 260
(2015) ...................................................................... 7
Paul v. United States, 140 S. Ct. 342 (2019) ............. 2
U.S. Telecom Ass’n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) .......................... 8, 11
Util. Air Regulatory Group v. EPA,
573 U.S. 302 (2014) .............................................. 10
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ................................................ 9

Statutes
42 U.S.C. § 108 ........................................................... 8
42 U.S.C. § 109 ........................................................... 8
42 U.S.C. § 112(b)....................................................... 8
Clean Air Act Section 111(d) ............................ passim

Regulations
80 Fed. Reg. 64,662 (Oct. 23, 2015) ..................... 5, 10
84 Fed. Reg. 32,520 (July 8, 2019)............................. 5
 iv
Page(s)

Exec. Order 13,990, 86 Fed. Reg. 7,037

(Jan. 25, 2021) ........................................................ 5
Exec. Order No. 13,783, 82 Fed. Reg. 16,093
(Mar. 31, 2017)........................................................ 5

Other Authorities
Appl. by 29 States and State Agencies for
Immediate Stay of Final Agency Action During
Pendency of Petitions for Review,
West Virginia, et al. v. EPA, et al.,
136 S. Ct. 1000 (2016) (No. 15A773) ...................... 7
Appl. of Utility and Allied Parties for Immediate
Stay of Final Agency Action Pending Appellate
Review at 2, West Virginia, et al. v. EPA, et al.,
136 S. Ct. 1000 (2016) (No. 15A773) ...................... 6
Elena Kagan, Presidential Administration,
114 Harv. L. Rev. 2245 (2001) ............................... 5
Jennifer A. Dlouhy, “Biden Climate Czar Vows
Clean-Energy Edict If Congress Fails,”
Bloomberg Green, July 13, 2021 ............................ 3
Presidential Memorandum—Power Sector Carbon
Pollution Standards (June 25, 2013) ..................... 5
Remarks by the President on the Clean Power Plan
(Aug. 3, 2015) .......................................................... 9
Tamara Keith, “Wielding a Pen and a Phone,
Obama Goes It Alone,” NPR, Jan. 20, 2014 .......... 4
White House Briefing Room, “Fact Sheet: List of
Agency Actions for Review” (Jan. 20, 2021) .......... 7
 v
Page(s)

White House Briefing Room, “Fact Sheet: President

Biden Tackles Methane Emissions, Spurs
Innovations, and Supports Sustainable
Agriculture to Build a Clean Energy Economy and
Create Jobs” (Nov. 2, 2021) .................................. 10
White House Briefing Room, “U.S. to Sharply Cut
Methane Pollution that Threatens the Climate
and Public Health” (Nov. 2, 2021) ......................... 3
 1

INTEREST OF AMICI CURIAE 1

The Cato Institute was established in 1977 as a
nonpartisan public policy foundation dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies was
established to restore the principles of limited
constitutional government that are the foundation of
liberty. Toward those ends, Cato publishes books and
studies, conducts conferences and forums, and
produces the annual Cato Supreme Court Review.
The Mountain States Legal Foundation is a
nonprofit, public-interest law firm dedicated to
bringing before the courts issues vital to the defense
and preservation of individual liberties, the right to
own and use property, the free enterprise system, and
limited and ethical government. Since its creation in
1977, MSLF attorneys have been active in litigation
regarding the proper interpretation and application of
statutory, regulatory, and constitutional provisions.
This case interests amici because the decision
below threatens individual liberty by encouraging the
EPA to resolve major questions of economic and social
significance without a clear delegation from Congress.

INTRODUCTION AND
SUMMARY OF ARGUMENT
In a line of modern cases, the Court has
established a presumption against agencies’

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was
authored by any party’s counsel, and no person or entity other
than amici funded its preparation or submission.
 2

exercising implied authority to promulgate policies

“of great economic and political importance.” See Paul
v. United States, 140 S. Ct. 342 (2019) (statement of
Kavanaugh, J.) (citing precedents). This interpretive
principle is known as the major questions doctrine.
Here, however, the D.C. Circuit established the
opposite presumption, something akin to an “anti-
major questions doctrine.” Despite this Court’s
repeated calls for interpretive caution in the absence
of statutory clarity, the split panel below focused on
the “striking . . . paucity of restrictive language” in the
operative ambiguity, J.A. 120, which the majority
took for “muscle that Congress deliberately built up,”
J.A. 131. As for any economic or political fallout, the
majority reasoned that such “regulatory
consequences” are immaterial, because they “are a
product of the greenhouse gas problem, not of … the
solution.” J.A. 148. Therefore, under the majority’s
tautological logic, any climate regulation must be
major, because global warming is a major problem.
Putting it all together, the majority concluded that
the interstices of the statute provide “ample
discretion” to remake the electricity grid. J.A. 118.
It’s worth elaborating on the ultra-attenuated
textual basis for the D.C. Circuit’s far-reaching
conclusions. The majority below described the
relevant delegation—Clean Air Act Section 111(d)—
as a “gap-filler” that “is intended to reach pollutants
that do not fit squarely within the ambit of the Act’s”
primary programs. J.A. 76, 119. Within this
“catchall,” the court located the agency’s power in its
authority to “fill the gap[s] the Congress left.” J.A.
115. The upshot is that the panel read the statute to
confer massive authority in the “gaps” of a “gap-filler.”
 3

No doubt emboldened by the D.C. Circuit, White

House National Climate Adviser Gina McCarthy
recently warned that if Congress doesn’t enact grid-
wide production quotas for low-carbon power
producers, then the EPA will act on its own—based on
the statutory provision at issue in the instant case.
See Jennifer A. Dlouhy, “Biden Climate Czar Vows
Clean-Energy Edict If Congress Fails,” Bloomberg
Green, July 13, 2021, https://bloom.bg/3zgd9Kk.
Meanwhile, the Biden administration just announced
that it will exercise Clean Air Act section 111(d) to
achieve an “historic” expansion of regulatory
authority over more than 300,000 existing oil and gas
producers. See White House Briefing Room, “U.S. to
Sharply Cut Methane Pollution that Threatens the
Climate and Public Health” (Nov. 2, 2021),
https://bit.ly/3rOoaCf.
As an immediate matter, the outcome of this case
will determine whether the EPA can construe the
gaps of a gap-filler into the Clean Air Act’s most
powerful authority. Yet the overall stakes are far
greater. This case is illustrative of an alarming trend
whereby presidents turn to implied authority,
typically in long-extant statutes, to achieve what
Congress fails to do.
Of course, the Court is attuned to the conspicuous
constitutional problems attendant to interstitial
lawmaking of this sort, as demonstrated by the
development of the major questions doctrine. Setting
aside these constitutional concerns, a robust major
questions doctrine is needed to preserve reliance
interests. What one president does, another will undo,
and so on. The more significant the policy, the higher
the political stakes, which only increases the odds it
 4

will become a political football. Here, the entire

electricity industry is caught in a dizzying back-and-
forth; more broadly, the federal government is
becoming an increasingly unreliable partner to the
private sector and state governments.
In sum, reversing the D.C. Circuit is only a start.
To protect reliance interests, this Court must build
out its major questions principle. And to assist the
Court with this doctrinal development, amici propose
a framework for resolving an issue that has bedeviled
lower courts: how to identify a “major” rule.

ARGUMENT
I. THE COURT MUST ESTABLISH A ROBUST
MAJOR QUESTIONS DOCTRINE TO
PROTECT RELIANCE INTERESTS FROM
THE LEGAL INSTABILITY CAUSED BY
PRESIDENTIAL ADMINISTRATION
“It’s difficult to pass laws—on purpose.” J.A. 219
(Walker, J., dissenting). In requiring legislation to
endure bicameralism and presentment before taking
effect, the Founders intended that “[m]ajor
regulations and reforms either reflect a broad
political consensus, or they do not become law.” Id.
By contrast, presidential policymaking is much
simpler. Thanks to overbroad delegations from
Congress, presidents can achieve law-like regulations
merely by wielding their “pen and phone.” See
Tamara Keith, “Wielding a Pen and a Phone, Obama
Goes It Alone,” NPR, Jan. 20, 2014,
https://n.pr/3rOXUYw. All it takes is an executive
order calling on an agency to “interpret” new
authority in old statutes.
 5

Due in large part to the relative ease of executive

policymaking, “[w]e live today in an era of
presidential administration.” Elena Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245,
2246 (2001). In contemporary American government,
it is the presidency, rather than Congress, that leads
“in setting the direction and influencing the outcome
of” administrative policymaking. Id. Because
“regulatory activity . . . [is] more and more an
extension of the President’s own policy and political
agenda,” id. at 2248, there occurs a wholesale shift in
administrative policymaking whenever the
presidency switches hands—especially when there’s a
party changeover.
This case provides a quintessential example of
presidential administration. Faced with
congressional inaction on climate policy, President
Obama ordered the EPA to regulate power plants,
leading to the Clean Power Plan. See Presidential
Memorandum—Power Sector Carbon Pollution
Standards (June 25, 2013), https://bit.ly/3EVALHA;
80 Fed. Reg. 64,662 (Oct. 23, 2015). But then
President Trump commanded the EPA to undo that
order, resulting in the Affordable Clean Energy rule.
See Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar.
31, 2017); 84 Fed. Reg. 32,520 (July 8, 2019). And now
the pendulum has swung back: On his first day in
office, President Biden called for an “immediate[]
review” of his predecessor’s policy. See Exec. Order
13,990, 86 Fed. Reg. 7,037, 7,037 (Jan. 25, 2021).
To be sure, voters should guide administrative
policy, and “presidential leadership establishes an
electoral link between the public and the
bureaucracy.” Kagan, supra, at 2332. In most
 6

instances, therefore, the policy flip-flops inherent to

presidential administration reflect a necessary
tradeoff between efficiency and accountability.
But not always. For a narrow class of major
policies, such as remaking the electrical grid, ping-
pong policymaking is too unsettling to pass
constitutional muster. Unless the Court stabilizes the
law, our present era of presidential administration
will bring about a crisis of “reliance interests.” See
DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891
(2020) (explaining importance of reliance interests to
judicial review of administrative policymaking).
Here, for example, the regulated parties—the
entire electricity sector—comprise a capital-intensive
industry that “require[s] many years to plan, develop,
site, and construct the billions of dollars of new
facilities and new infrastructure required to
implement EPA’s mandates.” See Appl. of Utility and
Allied Parties for Immediate Stay of Final Agency
Action Pending Appellate Review at 2, West Virginia,
et al. v. EPA, et al., 136 S. Ct. 1000 (2016) (No.
15A773). At present, this crucial industry is caught in
a spin cycle. Democrat presidents claim that § 111(d)
confers implicit authority to remake the electricity
sector; Republican presidents deny such authority
exists. In lurching back and forth between their
respective partisan preferences, these flip-flopping
administrations deny any semblance of regulatory
certainty to the electric industry.
States, too, suffer sovereign harms from the
unreliability of their federal partner. States have
“exclusive” jurisdiction over “retail sales of
electricity,” FERC v. Elec. Power Supply Ass'n, 577
 7

U.S. 260, 266–67 (2015), and also play a lead role in

air quality control under the Clean Air Act’s
“cooperative federalism.” J.A. 74 (describing states’
role under statutory scheme). It follows that states
must “design and enact transformative legislative
and regulatory changes” whenever the federal
government changes the rules of the game. See Appl.
by 29 States and State Agencies for Immediate Stay
of Final Agency Action During Pendency of Petitions
for Review at 39, West Virginia, et al. v. EPA, et al.,
136 S. Ct. 1000 (2016) (No. 15A773). As a result,
states, are forced to flip-flop in line with the back-and-
forth of presidential administration.
Enough is enough. It is incumbent on the Court to
protect the interests harmed by the legal instability
afflicting the major question here and elsewhere. Cf.
White House Briefing Room, “Fact Sheet: List of
Agency Actions for Review” (Jan. 20, 2021),
https://bit.ly/3AM85ha (identifying 104 Trump-era
rules to be immediately reviewed). A duty to “say
what the law is” sometimes requires this Court to say
what the law isn’t. Here, the Court must make clear
that it is constitutionally impermissible for agencies
to make “major” law based on interstitial authority.

II. A PROPOSED FRAMEWORK TO IDENTIFY

“MAJOR” RULES
Unfortunately, the Court’s major questions
doctrine is incomplete, as lower courts lack guidance
on how to distinguish major rules from non-major
rules. See, e.g., Chamber of Commerce v. DOL, 885
F.3d 360, 387–88 (5th Cir. 2018) (recognizing
uncertainty over doctrine’s scope). To be sure, a rule’s
price tag speaks to whether its economic and political
 8

significance is sufficient to qualify as a major

question. But the Court can’t just pick a cost
threshold, above which all rules would be considered
“major.” Such a one-size-fits-all approach couldn’t
possibly account for the complexities of
administrative policymaking. Something more is
needed. To assist the Court along these lines, amici
propose the following non-exclusive criteria for
determining what qualifies as a major question.
A. Is the Agency “Filling in the Details” or
“Answering Major Questions”?
The first factor for distinguishing a “major” rule is
“the nature of the question presented.” See FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120,
159 (2000). “The mere fact that a statutory ambiguity
exists for some purposes does not mean it authorizes
the agency to reach major questions.” U.S. Telecom
Ass’n v. FCC, 855 F.3d 381, 403 (D.C. Cir. 2017)
(Brown, J., dissenting from denial of rehearing en
banc) (cleaned up). In determining where to draw the
line between “filling in the details” and “answering
major questions,” the key is statutory context.
For example, here the narrow purpose of § 111(d)
becomes obvious on consideration of the statute as a
whole. With the Clean Air Act, Congress created
comprehensive regulatory programs for two
categories of pollution: “criteria pollutants” and
“hazardous air pollutants.” See 42 U.S.C. §§ 108, 109
(criteria pollutants); § 112(b) (hazardous air
pollutants). Section 111(d), on the other hand, “is a
catch-all . . . intended to reach pollutants that do not
fit squarely within the ambit” of the Act’s primary
programs. J.A. 119.
 9

With this statutory context in mind, it makes no

sense that a “catch-all” provision authorizes the EPA
to take on major questions, such as remaking the
electricity sector. If Congress had intended as much,
then lawmakers would have worked through one of
the two comprehensive pollution regimes established
by the Clean Air Act. “Congress … does not, one might
say, hide elephants in mouseholes.” See Whitman v.
Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
B. Is the Agency Action “Historic”?
The second factor for determining whether a rule
qualifies as “major” is whether the agency is doing
something far out of the ordinary considering the
regulatory history at hand. Since 1970, the EPA has
exercised its § 111(d) authority a few times without
controversy, primarily to regulate far-flung industries
like sulfuric acid production or Kraft pulping plants.
See J.A. 75-76 (listing prior uses).
Yet in today’s era of presidential administration,
this once obscure provision now abets grandiose
executive ambition. President Obama called his §
111(d) rule “the single most important step America
has ever taken in the fight against global climate
change.” Remarks by the President on the Clean
Power Plan (Aug. 3, 2015) https://bit.ly/31OPZ24.
More recently, an unprecedented § 111(d) proposal for
oil and gas producers served as the centerpiece of
President Biden’s marquee international climate
policy, the Global Methane Pledge. See White House
Briefing Room, “Fact Sheet: President Biden Tackles
Methane Emissions, Spurs Innovations, and Supports
Sustainable Agriculture to Build a Clean Energy
 10

Economy and Create Jobs” (Nov. 2, 2021),

https://bit.ly/31IVfEz.
Even a cursory review of § 111(d)’s regulatory
history couldn’t miss a clear-cut dichotomy. For
decades after its enactment, this “catch-all” authority
was used narrowly as intended. Now, it’s the basis for
historic rules at the forefront of presidential policy
agendas. When, as here, “an agency claims to discover
in a long-extant statute an unheralded power to
regulate a significant portion of the American
economy,” courts are likely dealing with a major
question. Util. Air Regulatory Group v. EPA, 573 U.S.
302, 324 (2014).
C. Did Congress Try to Do What the Agency
Is Doing?
The third factor to consider in identifying a
“major” question is whether Congress recently tried,
but failed, to legislate a comparable outcome. That’s
what happened here.
In 2009, the House of Representatives passed a
“cap-and-trade” policy to fight global warming. See
American Clean Energy and Security Act, H.R. 2454,
111th Cong. (2009). But the bill stalled in the Senate,
where it ultimately expired when the clock ran out on
the 111th Congress. “So President Obama ordered the
EPA to do what Congress wouldn’t,” J.A. 222 (Walker,
J., dissenting), and the agency promulgated the Clean
Power Plan. See 80 Fed. Reg. 64,662. For compliance,
the EPA proposed to operate nationwide “model
trading rules,” also known as a cap-and-trade. See 80
Fed. Reg. 64,966 (Oct. 23, 2015). The upshot is that
the Clean Power Plan amounted to an executive
enactment of the same major policy—nationwide cap-
 11

and-trade—that Congress had declined to adopt after

much deliberation.
Where, as here, a regulation is indistinguishable
from a policy that Congress failed to enact, it is likely
that the agency is broaching a major question. See
U.S. Telecom Ass’n, 855 F.3d at 423 (Kavanaugh, J.,
dissenting from the denial of rehearing en banc)
(explaining that the Federal Communication
Commission’s “net neutrality” rule raised a major
question because Congress “considered (but never
passed) a variety of bills relating to net neutrality”).

CONCLUSION
For the above reasons, the judgment below should
be reversed. In addition, the Court should use this
case to guide lower courts on how to apply the major
questions doctrine.
Respectfully submitted,
Joseph A. Bingham Ilya Shapiro
MOUNTAIN STATES Counsel of Record
LEGAL FOUNDATION William Yeatman*
2596 S. Lewis Way CATO INSTITUTE
Lakewood, CO 80237 1000 Mass. Ave., N.W.
(303) 292-2021 Washington, D.C. 20001
jbingham@mslegal.org (202) 842-0200
ishapiro@cato.org

*Admitted to the D.C. Bar

under D.C. App. R. 46-A.
December 16, 2021 Supervised by a D.C. Bar
member.