Power Plant Rules Amicus Brief

USCA Case #24-1120 Document #2074674 Filed: 09/13/2024 Page 1 of 17
ORAL ARGUMENT NOT YET SCHEDULED

No. 24-1120 (and consolidated cases)
____________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
STATE OF WEST VIRGINIA, et al.,

Petitioners,
v.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
On Petitions for Review of Final Agency Action of the United

States Environmental Protection Agency
89 Fed. Reg. 39,798 (May 9, 2024)
MOTION FOR LEAVE TO FILE BRIEF OF MIDCONTINENT

INDEPENDENT SYSTEM OPERATOR, INC., PJM
INTERCONNECTION L.L.C., SOUTHWEST POWER POOL, INC.,
AND ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC., AS
AMICUS CURIAE IN SUPPORT OF PETITIONERS
Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
One American Square, Suite 2900
Indianapolis, IN 46282-0200
jenny.buchheit@icemiller.com
(317) 236-2295
Counsel for Amici Curiae

MOTION FOR LEAVE
Pursuant to Federal Rule of Appellate Procedure 29(a)(3) and D.C.
Circuit Rule 29(b), Amici Curiae Midcontinent Independent System
Operator, Inc. (“MISO”), PJM Interconnection L.L.C. (“PJM”), Southwest
Power Pool, Inc. (“SPP”), and Electric Reliability Council of Texas, Inc.
(“ERCOT”) (collectively, the “Joint ISOs/RTOs” or “Amici”) respectfully
request leave to file the accompanying brief in support of Petitioners.
Amici have a strong interest in this case. They are independent
entities, separate from companies that own electric generation and
transmission facilities, that have been designated by the Federal Energy
Regulatory Commission (“FERC”), or in the case of ERCOT, the Texas
Public Utility Commission (“PUC”), as responsible for maintaining and
enhancing the reliability of the bulk power grid in all or parts of 30 states
and the District of Columbia. The Joint ISOs/RTOs ensure the reliable
delivery of power from the high-voltage transmission grid to local
distribution utilities, which are then responsible for delivery to end-use
customers—45 million in MISO, 65 million in PJM, 19 million in SPP,
and 27 million in ERCOT.
1
FERC (and in the case of ERCOT, the Texas PUC) authorizes the
Joint ISOs/RTOs 1 to exercise functional control over the high-voltage

0F
transmission system and otherwise administer the bulk electric system
in their regions. One of their critical functions is to facilitate and
maintain the reliable delivery of electricity.
The Joint ISOs/RTOs are responsible for the safety, reliability, and
security of the bulk power transmission system, which refers to the large-
scale electrical network that transmits electricity from power plants to
substations before it is distributed to consumers. Over 100 million
businesses and residences—including this Court—depend on the Joint
ISOs/RTOs to coordinate the generation and transmission of the right
amount of electricity every minute of every day to meet individual end-
use customer requirements. In addition to managing and ensuring the
reliability of the power grid within their regions, the Joint ISOs/RTOs
administer the buying and selling of electricity at the wholesale level and
plan the electric grid of the future. See, e.g., Citadel FNGE Ltd. v. FERC,
1 FERC’s jurisdiction over ERCOT is limited, but does include authority

to enforce mandatory reliability standards under section 215 of the
Federal Power Act. See LS Power Dev., LLC, 155 FERC ¶ 61,176 at p.3
n.4 (2016).
2
77 F.4th 842, 848 (D.C. Cir. 2023) (“[RTO]s serve several functions,
including operating the electrical grid in a defined geographic area,
balancing energy supply and demand, establishing markets for the sale
and purchase of electricity, and ensuring the reliable transmission of
electricity.”); Am. Mun. Power, Inc. v. FERC, 86 F.4th 922, 926 (D.C. Cir.
2023) (similar).
For all of these reasons, Amici Curiae have an interest in the Final
Rule, and have tendered a brief that is extremely relevant to the issues
before the Court. Their proffered brief outlines in detail that without
additional modification, the compliance timelines and related provisions
of the Rule are not workable and are destined to trigger an acceleration
in the pace of premature retirements of electric generation units that
possess critical reliability attributes at the very time when such
generation is needed to support ever-increasing electricity demand
because of the growth of the digital economy and the need to ensure
adequate back-up generation to support an increasing amount of
intermittent renewable generation.
Such inevitable and foreseeable premature retirement decisions
resulting from the Rule’s timelines will substantially strain each of the
3
Joint ISOs/RTOs’ ability to maintain the reliability of the electric power
grid to meet the needs of the citizenry and the country’s economy. See,
e.g., Delaware Div. of Pub. Advocate v. FERC, 3 F.4th 461, 463 (D.C. Cir.
2021) (“As an RTO, PJM promotes efficiency and reliability in the
operation and planning of the electric transmission grid. To promote
reliability and prevent service interruptions, PJM must ensure that its
system has sufficient generating capacity.”) (alterations adopted)
(quotations and citations omitted). For these reasons, Amici have a
strong interest in this case, and their proffered brief will assist the Court
in its deliberations.
Furthermore, because of their unique, independent viewpoint, their
proffered Amici brief can explain how electricity is often delivered to
customers on a regional basis. See Int’l Transmission Co. v. FERC, 988
F.3d 471, 476-77 (D.C. Cir. 2021) (“A regional transmission organization
is a FERC-approved non-profit, independent organization that
administers the grid on a regional basis on behalf of transmission-owning
member utilities.”).
To that end, in their comments on the Proposed Rule, the Joint
ISOs/RTOs offered four “Reliability Safety Valve” options that would help
4
mitigate certain of their concerns regarding the effect of the Rule on the
reliability of the grid. Specifically, Amici proposed:
(1) Providing up-front, clear criteria on the use of the RULOF

Provision and enforcement discretion;
(2) Creating a sub-category of units needed for reliability;
(3) Providing clear guidance to the states regarding what would

constitute an acceptable state plan, within the context of a
regional Reliability Safety Valve to address regional resource
adequacy issues; and
(4) Recommending to the states in a given region served by an

ISO/RTO or balancing authority the creation of a bank of
regional reliability allowances available to unit owners only
during emergency conditions.
Amici accompanied their proposals with the legal support for EPA to
adopt each such provision, along with suggested means of
implementation. But in the Final Rule, EPA did not address these
specific recommendations, let alone explain why it did not adopt them.
Amici’s proffered brief explains that in failing to address these legitimate
reliability risks or Amici’s proposed “Reliability Safety Valve” measures,
EPA failed to satisfy its burden to adequately consider “energy
requirements” when determining the BSER. See 42 U.S.C. § 7411(a)(1).
Amici’s proffered brief also explains to the Court that EPA’s failure
to address Amici’s proposed mitigation measures is exacerbated by the
5
impact the Final Rule will have when analyzed in conjunction with the
numerous other proposed, pending, or existing EPA regulations that
impact grid reliability and resource adequacy—all of which are resulting
in a decline in reserve margins and premature retirement of dispatchable
“baseload” resources. Amici are also concerned about the chilling impact
these collective rules will have on the investment required to retain and
maintain existing generation units that are needed to provide key
reliability attributes and grid services before the Final Rule’s compliance
date. Amici explain that in their experience, EPA’s new rules, in
conjunction with other rules already in place, are significantly impacting
baseload resources with high accreditation valuations and needed system
attributes.
Finally, Amici’s proposed brief demonstrates that EPA’s proposed
short-term remedy for grid reliability issues is too constraining to
address reliability impacts resulting from the compliance strictures of
the Rule. Specifically, EPA established a triggering standard requiring
declaration of an “Energy Emergency Alert 2,” or “EEA2,” before any
compliance mitigation can be implemented to address imminent
emergencies. Amici will explain how this short-term reliability
6
mechanism unduly places the grid—and customers—at greater risk
before any short-term relief would be available. Amici should not have to
wait until the heightened level of emergency that an EEA2 declaration
represents; they should be able to take proactive measures to address
reliability issues upon earlier evidence of deteriorating grid conditions as
evidenced by declaration of an “Energy Emergency Alert 1.”
For these reasons, Amici respectfully request that the Court grant
them leave to file the accompanying brief and direct the Clerk to accept
the proposed brief for filing.
Dated: September 13, 2024
Respectfully submitted,
/s/ Jenny R. Buchheit

Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
(317) 236-2295
Counsel for Amici Curiae Midcontinent

Independent System Operator, Inc.,
PJM Interconnection L.L.C., Southwest
Power Pool, Inc., and Electric
Reliability Council of Texas, Inc.
7
CERTIFICATE OF COMPLIANCE
The motion contains 1,232 words, excluding the portions
exempted by Federal Rule of Appellate Procedure 32(f) and D.C.
Circuit Rule 32(e)(1). This motion thus complies with Federal Rule
of Appellate Procedure 27(d)(2)(A), because the word count does not
exceed the 5,200 words permitted under those rules.
This motion complies with the typeface requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type-style
requirements of Federal Rule of Appellate Procedure 32(a)(6). The
motion has been prepared in proportionally spaced typeface using
Microsoft Word and 14-point Century Schoolbook.

Jenny R. Buchheit
8
CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of September 2024, I caused
a true and correct copy of the foregoing to be electronically filed with the
Clerk of the Court of the United States Court of Appeals for the District
of Columbia Circuit by using the CM/ECF system. I certify that all
participants in the case are registered CM/ECF users, and that service
will be accomplished by the CM/ECF system.

Jenny R. Buchheit
9

____________________________________________________


Petitioners,
v.
UNITED STATES
Respondents.

89 Fed. Reg. 39,798 (May 9, 2024)
MIDCONTINENT INDEPENDENT SYSTEM OPERATOR, INC.,

PJM INTERCONNECTION L.L.C., SOUTHWEST POWER POOL,
INC., AND ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC.
CORPORATE DISCLOSURE AND CERTIFICATE AS TO
PARTIES AND AMICI CURIAE ADDENDUM
Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
(317) 236-2295

CORPORATE DISCLOSURE STATEMENT
Midcontinent Independent System Operator, Inc. (“MISO”)
MISO is a non-stock, not-for-profit corporation organized under the laws
of the State of Delaware with its principal place of business in Carmel,
Indiana. MISO has no parent corporation, and because MISO is a non-
profit corporation that does not issue stock, no publicly held corporation
owns 10% or more stock in MISO. Circuit Rule 26.1(b) requires a
statement that identifies the represented entity’s general nature and
purpose, insofar as is relevant to the petition for review in this
proceeding. As is relevant here, MISO is an independent regional
transmission system operator authorized by the Federal Energy
Regulatory Commission (“FERC”) to administer an open access
transmission tariff, ensure reliable operation of, and equal access to,
high-voltage power lines in 15 U.S. states and the Canadian province of
Manitoba, and operates one of the world’s largest energy markets with
more than $40 billion in annual gross market energy transactions.
PJM Interconnection L.L.C. (“PJM”)
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and
Rules 15(c)(6) and 26.1 of the Circuit Rules of this Court, PJM states that
2
it is a limited liability company organized and existing under the laws of
the State of Delaware. PJM is a regional transmission organization
(“RTO”) for all or portions of Delaware, the District of Columbia, Illinois,
Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina,
Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. PJM is
authorized by FERC to administer an Open Access Transmission Tariff
(“Tariff”), provide transmission service under the Tariff on the electric
transmission facilities under PJM’s control, operate an energy and other
markets, and otherwise conduct the day-to-day operations of the bulk
power system of a multi-state electric control area. PJM was approved by
FERC first as an independent system operator and then as an RTO. See
Pennsylvania-New Jersey-Maryland Interconnection, 81 FERC ¶ 61,257
(1997), reh’g denied, 92 FERC ¶ 61,282 (2000), modified sub nom. Atl.
City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir. 2002); PJM Interconnection,
L.L.C., 101 FERC ¶ 61,345 (2002).
PJM has no parent companies. Under Delaware law, the members
of a limited liability company have an “interest” in the company. See Del.
Code Ann. tit. 6, § 18-701 (2024). PJM members do not purchase their
interests or otherwise provide capital to obtain their interests. Rather,
3
the PJM members’ interests are determined pursuant to a formula that
considers various attributes of the member, and the interests are used
only for the limited purposes of: (i) determining the amount of working
capital contribution for which a member may be responsible in the event
financing cannot be obtained; 1 and (ii) dividing assets in the event of

0F
liquidation. PJM is not operated to produce a profit, has never made any
distributions to members, and does not intend to do so (absent
dissolution). In addition, “interest” as defined above does not enter into
governance of PJM and there are no individual entities that have a 10%
or greater voting interest in the conduct of any PJM affairs.
Southwest Power Pool, Inc. (“SPP”)
Rules 15(c)(6) and 26.1 of the Circuit Rules of this Court, SPP hereby
submits the following corporate disclosure statement:
SPP is a non-profit corporation organized under the laws of the
state of Arkansas with its principal place of business in Little Rock,
1 Under the Amended and Restated Operating Agreement of PJM

Interconnection, L.L.C., the amount of capital contributions received
from all PJM members combined is capped at $5,200,000. PJM generally
finances its working capital.
4
Arkansas. SPP has no parent corporation, and because SPP is a non-
owns 10% or more stock in SPP.
SPP is an independent regional transmission organization
authorized by FERC to administer a Tariff, operate day-ahead and real-
time energy, ancillary services, and congestion rights markets, conduct
regional transmission planning and administer FERC-approved regional
cost allocation mechanisms, and otherwise oversee the day-to-day
operations of the bulk power system of a multi-state region, covering
portions of Arkansas, Iowa, Kansas, Louisiana, Minnesota, Missouri,
Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South
Dakota, Texas, and Wyoming. As independent regional transmission
organization, SPP is responsible for regional transmission planning and
administration of its Tariff.
Electric Reliability Council of Texas, Inc. (“ERCOT”)
ERCOT is a non-profit, tax-exempt organization incorporated in the state
of Texas. ERCOT has no parent corporation, and no publicly held
company has 10% or greater ownership in it.
5
CERTIFICATE AS TO PARTIES, RULINGS, AND

RELATED CASES
Pursuant to D.C. Cir. Rule 28(a)(1), Amici Curiae states as follows:
A. Parties, Intervenors, and Amici Curiae
Except for the following, all Parties, Intervenors, and Amici Curiae
appearing in this Court are listed in the Brief for Petitioners: Amici
Curiae Midcontinent Independent System Operator, Inc., PJM
Interconnection L.L.C., Southwest Power Pool, Inc., and Electric
Reliability Council of Texas, Inc., in support of Petitioners.
B. Rulings Under Review
References to the rulings at issue appear in the Brief of Petitioners.
C. Related Cases
These consolidated cases have not previously been before this Court
or any other court.
6
ICE MILLER LLP

Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
(317) 236-2295

7

____________________________________________________


Petitioners,
v.
UNITED STATES
Respondents.

89 Fed. Reg. 39,798 (May 9, 2024)
BRIEF OF MIDCONTINENT INDEPENDENT SYSTEM

OPERATOR, INC., PJM INTERCONNECTION L.L.C.,
SOUTHWEST POWER POOL, INC., AND ELECTRIC
RELIABILITY COUNCIL OF TEXAS, INC., AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
(317) 236-2295

CERTIFICATE AS TO PARTIES, RULINGS, AND

RELATED CASES
Pursuant to D.C. Cir. Rule 28(a)(1), Amici Curiae states as follows:
A. Parties, Intervenors, and Amici Curiae
Except for the following, all Parties, Intervenors, and Amici Curiae
appearing in this Court are listed in the Brief for Petitioners: Amici
Curiae Midcontinent Independent System Operator, Inc., PJM
Interconnection L.L.C., Southwest Power Pool, Inc., and Electric
Reliability Council of Texas, Inc., in support of Petitioners.
B. Rulings Under Review
References to the rulings at issue appear in the Brief of Petitioners.
C. Related Cases
These consolidated cases have not previously been before this Court
or any other court.
ii
CORPORATE DISCLOSURE STATEMENT
Midcontinent Independent System Operator, Inc. (“MISO”)
MISO is a non-stock, not-for-profit corporation organized under the laws
of the State of Delaware with its principal place of business in Carmel,
Indiana. MISO has no parent corporation, and because MISO is a non-
owns 10% or more stock in MISO. Circuit Rule 26.1(b) requires a
statement that identifies the represented entity’s general nature and
purpose, insofar as is relevant to the petition for review in this
proceeding. As is relevant here, MISO is an independent regional
transmission system operator authorized by FERC to administer an open
access transmission tariff, ensure reliable operation of, and equal access
to, high-voltage power lines in 15 U.S. states and the Canadian province
of Manitoba, and operates one of the world’s largest energy markets with
more than $40 billion in annual gross market energy transactions.
PJM Interconnection L.L.C. (“PJM”)
Rules 15(c)(6) and 26.1 of the Circuit Rules of this Court, PJM states that
it is a limited liability company organized and existing under the laws of
iii
the State of Delaware. PJM is a regional transmission organization
(“RTO”) for all or portions of Delaware, the District of Columbia, Illinois,
Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina,
Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. PJM is
authorized by FERC to administer an Open Access Transmission Tariff
(“Tariff”), provide transmission service under the Tariff on the electric
transmission facilities under PJM’s control, operate an energy and other
markets, and otherwise conduct the day-to-day operations of the bulk
power system of a multi-state electric control area. PJM was approved by
FERC first as an independent system operator and then as an RTO. See
Pennsylvania-New Jersey-Maryland Interconnection, 81 FERC ¶ 61,257
(1997), reh’g denied, 92 FERC ¶ 61,282 (2000), modified sub nom. Atl.
City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir. 2002); PJM Interconnection,
L.L.C., 101 FERC ¶ 61,345 (2002).
PJM has no parent companies. Under Delaware law, the members
of a limited liability company have an “interest” in the company. See Del.
Code Ann. tit. 6, § 18-701 (2024). PJM members do not purchase their
interests or otherwise provide capital to obtain their interests. Rather,
the PJM members’ interests are determined pursuant to a formula that
iv
considers various attributes of the member, and the interests are used
only for the limited purposes of: (i) determining the amount of working
capital contribution for which a member may be responsible in the event
financing cannot be obtained; 1 and (ii) dividing assets in the event of

0F
liquidation. PJM is not operated to produce a profit, has never made any
distributions to members, and does not intend to do so (absent
dissolution). In addition, “interest” as defined above does not enter into
governance of PJM and there are no individual entities that have a 10%
or greater voting interest in the conduct of any PJM affairs.
Southwest Power Pool, Inc. (“SPP”)
Rules 15(c)(6) and 26.1 of the Circuit Rules of this Court, SPP hereby
submits the following corporate disclosure statement:
SPP is a non-profit corporation organized under the laws of the
state of Arkansas with its principal place of business in Little Rock,
Arkansas. SPP has no parent corporation, and because SPP is a non-
1 Under the Amended and Restated Operating Agreement of PJM

Interconnection, L.L.C., the amount of capital contributions received
from all PJM members combined is capped at $5,200,000. PJM generally
finances its working capital.
v
owns 10% or more stock in SPP.
SPP is an independent regional transmission organization
authorized by FERC to administer a Tariff, operate day-ahead and real-
time energy, ancillary services, and congestion rights markets, conduct
regional transmission planning and administer FERC-approved regional
cost allocation mechanisms, and otherwise oversee the day-to-day
operations of the bulk power system of a multi-state region, covering
portions of Arkansas, Iowa, Kansas, Louisiana, Minnesota, Missouri,
Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South
Dakota, Texas, and Wyoming. As independent regional transmission
organization, SPP is responsible for regional transmission planning and
administration of its Tariff.
Electric Reliability Council of Texas, Inc. (“ERCOT”)
ERCOT is a non-profit, tax-exempt organization incorporated in the state
of Texas. ERCOT has no parent corporation, and no publicly held
company has 10% or greater ownership in it.
vi
CIRCUIT RULE 29(D) CERTIFICATE
Pursuant to D.C. Cir. Rule 29(d), counsel for Amici Curiae certifies
that it is not aware of any other non-government amicus brief addressing
the particular subject matter of this brief, i.e., the compliance deadlines
that stem from EPA’s BSER determination in the Final Rule, which are
based on overly ambitious and inadequately supported assumptions as to
target dates for commercialization of CCS, which drive both the rate and
timing of compliance which, in turn, will cause the premature
retirements of generation sources that will threaten the reliability of the
electric grid Amici are charged with maintaining.
Amici’s brief also addresses EPA’s failure to satisfy its burden to
consider “energy requirements” when determining the BSER, including
specific “Reliability Safety Valve” measures they proposed in their
comments to the Proposed Rule, that would have helped mitigate their
concerns regarding the effect that the premature retirements of
generation units would have on the reliability of the electric grid. Amici
are similarly unaware of any other non-governmental amicus brief
addressing this issue.
vii
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, RELATED

CASES ....................................................................................................... ii
A. Parties, Intervenors, and Amici Curiae.................................. ii
B. Ruling Under Review .............................................................. ii
C. Related Cases .......................................................................... ii
CORPORATE DISCLOSURE STATEMENT ..........................................iii
CIRCUIT RULE 29(D) CERTIFICATE .................................................. vii
TABLE OF AUTHORITIES ...................................................................... x
GLOSSARY ............................................................................................. xv
STATUTES AND REGULATIONS ...................................................... xvii
IDENTITY AND INTEREST OF AMICI CURIAE ............................. xviii
SUMMARY OF THE ARGUMENT .......................................................... 1
ARGUMENT ............................................................................................. 5
I. The Final Rule is based on overly ambitious and

inadequately supported assumptions and
establishes compliance deadlines and criteria
that, absent modification, do not adequately
address Congress’ directive that EPA Rules take
into account “energy requirements.” ...................................... 5
II. The assumptions and compliance deadlines in the

Final Rule work to exacerbate existing challenges
to reliability and resource adequacy of the electric
grid........................................................................................... 8
viii
A. EPA did not adequately analyze or adopt

proposed adjustments to the Rule to
mitigate potential reliability impacts .......................... 10
B. EPA has not adequately considered resource

adequacy and reliability impacts as part of
its responsibility to consider “energy
requirements” in conjunction with other
proposed, pending, or existing regulations.................. 17
C. The Final Rule doesn’t allow enough

compliance flexibility to mitigate short-term
grid emergencies .......................................................... 24
CONCLUSION ........................................................................................ 28
CERTIFICATE OF COMPLIANCE ........................................................ 31
CERTIFICATE OF SERVICE................................................................. 32
ix
TABLE OF AUTHORITIES
CASES PAGES
Am. Mun. Power, Inc. v. FERC,

86 F.4th 922 (D.C. Cir. 2023) ........................................................ xix
Atl. City Elec. Co. v. FERC,

295 F.3d 1 (D.C. Cir. 2002) ............................................................. iv
Citadel FNGE Ltd. v. FERC,

77 F.4th 842 (D.C. Cir. 2023) ........................................................ xix
Delaware Div. of Pub. Advocate v. FERC,

3 F.4th 461, (D.C. Cir. 2021) .......................................................... xx
LS Power Dev., LLC,

155 FERC ¶ 61,176 (2016) .......................................................... xviii
Ohio v. EPA,
144 S.Ct. 2040 (2024) ..................................................................... 17
Pennsylvania-New Jersey-Maryland Interconnection,

81 FERC ¶ 61,257 (1997) ................................................................ iv
PJM Interconnection, L.L.C.,

101 FERC ¶ 61,345 (2002) .............................................................. iv
Sierra Club v. Costle,

657 F.2d 298 (D.C. Cir. 1981)......................................................... 10
STATUTES & RULES PAGES
42 U.S.C. § 7411 .......................................................... 2, 5, 6, 8, 10, 14, 15
Del. Code Ann. tit. 6, § 18-701 (2024) ...................................................... iv
D.C. Cir. R. 15(c)(6) ............................................................................. iii, v
x
D.C. Cir. R. 26.1 ................................................................................... iii, v
D.C. Cir. R. 26.1(b) ...................................................................................iii
D.C. Cir. R. 28(a)(1) ................................................................................... ii
D.C. Cir. R. 29(b) .................................................................................. xviii
D.C. Cir. R. 29(d) ..................................................................................... vii
D.C. Cir. R. 32(e)(1) ................................................................................. 31
Fed. R. App. P. 26.1 .............................................................................. iii, v
Fed. R. App. P. 29(a)(4)(E) ................................................................... xviii
Fed. R. App. P. 32(a)(5) ........................................................................... 31
Fed. R. App. P. 32(a)(6) ........................................................................... 31
Fed. R. App. P. 32(a)(7)(B) ...................................................................... 31
Fed. R. App. P. 32(f) ................................................................................ 31
OTHER AUTHORITIES PAGES
89 Fed. Reg. 38,508 (May 7, 2024) .......................................................... 19
89 Fed. Reg. 38,950 (May 8, 2024) .......................................................... 19
89 Fed. Reg. 39,798 (May 9, 2024) ............................................................ 5
89 Fed. Reg. 40,198 (May 9, 2024) .......................................................... 19
2023 Long-Term Reliability Assessment, N. Am. Elec. Reliability Corp.

10 (Dec. 2023) https://www.nerc.com/pa/RAPA/ra/Reliability%20
Assessments%20DL/NERC_LTRA_2023.pdf .................................. 8
xi
2024 SPP Resource Adequacy Report, Sw. Power Pool (June 14, 2024),
https://www.spp.org/documents/71804/2024%20spp%20june%20re
source%20adequacy%20report.pdf ................................................ 13
2025/2026 Base Residual Auction Report, PJM (July 30, 2024),

https://pjm.com/-/media/markets-ops/rpm/rpm-auction-info/2025-
2026/2025-2026-base-residual-auction-report.ashx ...................... 13
Electronic Filing from Michael Kessler, MISO’s Managing Assistant

Gen. Couns., to Hon. Kimberly D. Bose, Fed. Energy Regul.
Comm’n Sec’y (Nov. 30, 2021) https://cdn.misoenergy.org/2021-11-
30_RAN%20Seasonal%20Construct%20and%20Availability%20ba
sed%20accreditation608310.pdf............................................... 18, 19
Electronic Filing from Michelle Quinn, MISO’s Senior Corp. Couns., to

Hon. Debbie-Anne Reese, Fed. Energy Regul. Comm’n Sec’y (Mar.
28, 2024) https://cdn.misoenergy.org/2024-03-
28%20Docket%20No.%20ER24-1638-000632361.pdf.............. 18, 19
Energy Transition in PJM: Resource Retirements, Replacements &

Risks, PJM 3, 13 (Feb. 24, 2023), https://pjm.com/-
/media/library/reports-notices/special-reports/2023/energy-
transition-in-pjm-resource-retirements-replacements-and-
risks.ashx.................................................................................. 14, 23
ERCOT Nodal Protocols, ERCOT (Aug. 23, 2024),

https://www.ercot.com/files/docs/2024/08/21/August%2023,%20202
4%20Nodal%20Protocols.pdf.................................................... 24, 25
Grid Conditions At a Glance, MISO, https://www.misoenergy.org/meet-

miso/media-center/2024/grid-conditions-explainer/ (last visited
Sept. 12, 2024). ......................................................................... 25, 26
Joint Comments of Electric Reliability Council of Texas, Inc.;

Midcontinent Independent System Operator, Inc.; PJM
Interconnection, L.L.C.; and Southwest Power Pool, Inc., PJM
(Aug. 8, 2023), https://pjm.com/-/media/documents/other-fed-
xii
state/20230808-comments-of-joint-isos-rtos-docket-epa-hq-oar-
2023-0072.ashx ............................................................................... 23
Joint Comments of Electric Reliability Council of Texas, Inc.,

Midcontinent Independent System Operator, Inc., PJM
Interconnection, L.L.C., and Southwest Power Pool, Inc.,
Regulations.gov (Dec. 20, 2023)
https://www.regulations.gov/comment/EPA-HQ-OAR-2023-0072-
8207. ........................................................................................... 6, 16
Letter from James P. Danly, Comm’r of the Fed. Energy Regul. Comm’n
to Hon. Michael S. Regan, Adm’r of the U.S. Env’t Prot. Agency
(Dec. 20, 2023) https://www.regulations.gov/comment/EPA-HQ-
OAR-2023-0072-8216 ......................................................... 13, 23, 24
MISO Bd. of Dirs., Strategy Update: Reliability Imperative, MISO (Dec.

7, 2023), https://cdn.misoenergy.org/20231207%20Board%20of%20
Directors%20Item%2007b%20Reliability%20Imperative%20Updat
e631057.pdf .................................................................................... 14
MISO’s Response to the Reliability Imperative, MISO 7-8,

https://cdn.misoenergy.org/2024%20Reliability%20Imperative%20
report%20Feb.%2021%20Final504018.pdf?v=20240221104216
(last updated Feb. 2024)................................................................. 18
Operating Procedures, MISO, https://cdn.misoenergy.org/Three%

20Pager%20%20MISO%20Operating%20Procedures%2010252022
318965.pdf (last visited Sept. 12, 2024) ................................... 24, 25
PJM Load Forecast Report: January 2024, PJM (Feb. 1, 2024),

https://www.pjm.com/-/media/library/reports-notices/load-
forecast/2024-load-report.ashx....................................................... 13
Planning Resource Adequacy Analysis, Assessment and Documentation,

N. Am. Elec. Reliability Corp. 1-4 (Oct. 16, 2017), https://www.
nerc.com/pa/Stand/Reliability%20Standards/
BAL-502-RF-03.pdf. ....................................................................... 12
xiii
Resource Adequacy, ERCOT, https://www.ercot.com/gridinfo/resource

(last visited Sept. 12, 2024) ............................................................ 13
SPP BA Emergency Operating Plan V 9.0, Sw. Power Pool (Oct. 4,

2023), https://spp.org/documents/70346/spp%20ba%20
emergency%20operating%20plan%20v%209.0.pdf ....................... 14
Technical Memorandum from the U.S. Env’t Prot. Agency Off. of Air &
Radiation 4 (Apr. 2024), https://www.epa.gov/system/files/
documents/2024-04/technical-memo-resource-adequacy-analysis-
vehicle-rules-final-111-egu-rules-elg-and-mats.pdf ...................... 18
xiv
GLOSSARY
BSER = Best System of Emission Reduction
CAA = Clean Air Act
CCS = Carbon Capture and Sequestration/Storage
CO2 = Carbon Dioxide
EGU = Electric Generating Unit
EEA = Energy Emergency Alert
ELG = Effluent Limitations Guidelines and Standard
EPA = U.S. Environmental Protection Agency
ERCOT = Amici Electric Reliability Council of Texas, Inc.
FERC = Federal Energy Regulatory Commission
GHG = Greenhouse Gas Emissions
ISO = Independent System Operator
LCCR = Legacy Coal Combustion Residuals
MATS = Mercury and Air Toxics Standards
MISO = Amici Midcontinent Independent System Operator, Inc.
NERC = North American Electric Reliability Corporation
PJM = Amici PJM Interconnection L.L.C.
PUC = Public Utility Commission
xv
RTO = Regional Transmission Organization
RULOF = Remaining Useful Life and Other Factors
SPP = Amici Southwest Power Pool, Inc.
xvi
STATUTES AND REGULATIONS
All applicable statutes are contained in the Addendum to the Brief
of Petitioners.
xvii
IDENTITY AND INTEREST OF AMICI CURIAE 2 1F
MISO, PJM, SPP, and ERCOT (collectively the “Joint ISOs/RTOs”)
are independent entities, separate from companies that own electric
generation and transmission facilities, that have been designated by
FERC, or in the case of ERCOT, the Texas PUC, as responsible for
maintaining and enhancing the reliability of the bulk power grid in all or
parts of 30 states and the District of Columbia. The Joint ISOs/RTOs
ensure the reliable delivery of power from the high-voltage transmission
grid to local distribution utilities, which are then responsible for delivery
to end-use customers—45 million in MISO, 65 million in PJM, 19 million
in SPP, and 27 million in ERCOT. FERC (and in the case of ERCOT, the
Texas PUC) authorizes the Joint ISOs/RTOs 3 to exercise functional

2F
control over the high-voltage transmission system and otherwise
2 Pursuant to Fed. R. App. P. 29(a)(4)(E) and D.C. Cir. R. 29(b), Amici

Curiae state that no counsel for a party authored this brief in whole or in
part, and no party or counsel for a party contributed money intended to
fund the preparation or submission of this brief. No person other than
Amici Curiae or their counsel contributed money intended to fund the
preparation or submission of this brief.
3 FERC’s jurisdiction over ERCOT is limited, but does include authority

to enforce mandatory reliability standards under section 215 of the
Federal Power Act. See LS Power Dev., LLC, 155 FERC ¶ 61,176 at p.3
n.4 (2016).
xviii
administer the bulk electric system in their regions. One of their critical
functions is to facilitate and maintain the reliable delivery of electricity.
The Joint ISOs/RTOs are responsible for the safety, reliability, and
security of the bulk power transmission system, which refers to the large-
scale electrical network that transmits electricity from power plants to
substations before it is distributed to consumers. Over 100 million
businesses and residences—including this Court—depend on the Joint
ISOs/RTOs to coordinate the generation and transmission of the right
amount of electricity every minute of every day to meet individual end-
use customer requirements. In addition to managing and ensuring the
reliability of the power grid within their regions, the Joint ISOs/RTOs
administer the buying and selling of electricity at the wholesale level and
plan the electric grid of the future. See, e.g., Citadel FNGE Ltd. v. FERC,
77 F.4th 842, 848 (D.C. Cir. 2023) (“[RTO]s serve several functions,
including operating the electrical grid in a defined geographic area,
balancing energy supply and demand, establishing markets for the sale
and purchase of electricity, and ensuring the reliable transmission of
electricity.”); Am. Mun. Power, Inc. v. FERC, 86 F.4th 922, 926 (D.C. Cir.
2023) (similar).
xix
For all of these reasons, Amici Curiae have an interest in the Final
Rule. Without additional modification, the compliance timelines and
related provisions of the Rule are not workable and are destined to
trigger an acceleration in the pace of premature retirements of EGUs
that possess critical reliability attributes at the very time when such
generation is needed to support ever-increasing electricity demand
because of the growth of the digital economy and the need to ensure
adequate back-up generation to support an increasing amount of
intermittent renewable generation.
Such inevitable and foreseeable premature retirement decisions
resulting from the Rule’s timelines will substantially strain each of the
Joint ISOs/RTOs’ ability to maintain the reliability of the electric power
grid to meet the needs of the citizenry and the country’s economy. See,
e.g., Delaware Div. of Pub. Advocate v. FERC, 3 F.4th 461, 463 (D.C. Cir.
2021) (“As an RTO, PJM promotes efficiency and reliability in the
operation and planning of the electric transmission grid. To promote
reliability and prevent service interruptions, PJM must ensure that its
system has sufficient generating capacity.”) (alterations adopted)
xx
(quotations and citations omitted). For these reasons, Amici have a
strong interest in this case.
xxi
SUMMARY OF THE ARGUMENT
The BSER determinations in EPA’s Final Rule governing GHG
emissions from certain fossil-fuel-fired power plants are based on overly
ambitious and inadequately supported assumptions. These assumptions
then drive both the rate and timing of compliance which, in turn, will
drive the premature retirements of generation sources that will threaten
the reliability of the electric grid. The Final Rule unreasonably discounts
that existing fossil power generators will need to decide whether to
commit to installing untested technology or retire the generating unit
years before the compliance deadline, given the economic cost and risk of
compliance. As a result, decisions to retire units before the end of their
useful life may be accelerated because of the Final Rule. The Joint
ISOs/RTOs are concerned that premature retirements of generating
units that provide critical reliability attributes can have significant,
negative consequences on reliability.
In their comments on the Proposed Rule, the Joint ISOs/RTOs
offered four “Reliability Safety Valve” options that would help mitigate
these concerns. Specifically, Amici proposed:

1


Amici accompanied their proposals with the legal support for EPA to
adopt each such provision, along with suggested means of
implementation. But in the Final Rule, EPA did not address these
specific recommendations, let alone explain why it did not adopt them. In
failing to address these legitimate reliability risks or Amici’s proposed
“Reliability Safety Valve” measures, EPA failed to satisfy its burden to
adequately consider “energy requirements” when determining the BSER.
See 42 U.S.C. § 7411(a)(1).
EPA’s failure to address Amici’s proposed mitigation measures is
exacerbated by the impact the Final Rule will have when analyzed in
conjunction with the numerous other proposed, pending, or existing EPA
regulations that impact grid reliability and resource adequacy—all of
which are resulting in a decline in reserve margins and premature
2
retirement of dispatchable “baseload” resources. Amici are also
concerned about the chilling impact these collective rules will have on the
investment required to retain and maintain existing units that are
needed to provide key reliability attributes and grid services before the
Final Rule’s compliance date. In reality, EPA’s new rules, in conjunction
with other rules already in place, are significantly impacting baseload
resources with high accreditation valuations and needed system
attributes. Failure to adequately address the interaction of the
compliance deadlines in the Rule with other rules, and the compliance
deadlines affecting these very same EGUs, does not adequately address
Congress’ requirement that EPA take into account overall “energy
requirements.”
Finally, EPA’s proposed short-term remedy for grid reliability
issues is too constraining to address reliability impacts resulting from the
compliance strictures of the Rule. Specifically, EPA established a
triggering standard requiring declaration of an “Energy Emergency Alert
2” (“EEA2”) (as further described herein) before any compliance
mitigation can be implemented to address imminent emergencies. This
short-term reliability mechanism that EPA did adopt in the Rule thus
3
unduly places the grid—and customers—at greater risk before any short-
term relief would be available. Amici should not have to wait until the
heightened level of emergency that an EEA2 declaration represents; they
should be able to take proactive measures to address reliability issues
upon earlier evidence of deteriorating grid conditions as evidenced by
declaration of an “Energy Emergency Alert 1” (“EEA1”) (as further
described herein).
For these reasons, Amici respectfully request that the Court
remand the Final Rule back to EPA, with instructions for it to adequately
consider the grid adequacy and reliability issues Amici previously raised
in the docket below, as well as the specific solutions which they—as the
grid operators charged with maintaining grid reliability now and in the
future—proposed that EPA adopt. Absent such a remand, the Final Rule
is devoid of the adequate consideration of “energy requirements” that
Congress directed be considered in any Section 111(d) rulemaking.
4
ARGUMENT
I. The Final Rule is based on overly ambitious and

inadequately supported assumptions and establishes
compliance deadlines and criteria that, absent
modification, do not adequately address Congress’ directive
that EPA Rules take into account “energy requirements.”
EPA’s Final Rule governing greenhouse-gas emissions from certain
fossil-fuel-fired power plants, CI8244 (89 Fed. Reg. 39,789) (the “Final
Rule” or the “Rule”), is problematic. While the CAA directs EPA to
establish standards of performance for both “new sources” as well as
existing sources of emissions, those standards must utilize the BSER that
“has been adequately demonstrated” and that is “achievable.” 42 U.S.C.
§ 7411(a)(1), (b), (d). The standard must also “tak[e] into account the cost
of achieving such reduction and … energy requirements.” Id. § 7411(a)(1).
The BSER determination then drives both the rate and timing of
compliance with the Final Rule. Id. at § 7411; see also 89 Fed. Reg. at
39,801-02.
The Final Rule establishes CCS with a 90% capture of emitted CO2
as the BSER for existing coal-fired EGUs that plan to continue operation
after January 1, 2039, as well as for new and modified natural gas-fired
units with annual capacity factors of 40% or greater. Both coal-fired and
natural gas-fired EGUs of these types must achieve 90% capture by

5
January 1, 2032. See 89 Fed. Reg. at 39,841; 39,913; 39,938. While
sources subject to the standard of performance can use any system of
reduction to meet the limit, 42 U.S.C. § 7411(b)(5), here, EPA did not
identify any other technology or compliance option that sources could use
to meet the reduction requirements.
The Opening Brief of Petitioners discusses in detail EPA’s BSER
determination, including whether CCS has been “adequately
demonstrated” and is “achievable.” See generally Section I of Pet’rs
Opening Br. Amici raised similar concerns in the proceedings below, 4 but
3F
focus this Brief on the compliance deadlines that stem from EPA’s BSER
determination, which are based on overly ambitious and inadequately
supported assumptions as to target dates for commercialization of CCS.
Those BSER determinations then drive both the rate and timing of
compliance which, in turn, will drive the premature retirements of
4See generally CI0673 (Joint Comments of Electric Reliability Council of

Texas, Inc., Midcontinent Independent System Operator, Inc., PJM
Interconnection, L.L.C., and Southwest Power Pool, Inc. “Joint
ISOs/RTOs Comments”); CI0623 (MISO Comments); CI0670 (SPP
Comments); Joint Comments of Electric Reliability Council of Texas, Inc.,
Midcontinent Independent System Operator, Inc., PJM Interconnection,
L.L.C., and Southwest Power Pool, Inc., Regulations.gov (Dec. 20, 2023)
[hereinafter Joint Supplemental Comments],
https://www.regulations.gov/comment/EPA-HQ-OAR-2023-0072-8207.
6
generation sources that will threaten the reliability of the electric grid
even before the compliance date in the Rule.
However, none of EPA’s projected timeframes reflect historical
rates of adoption of CCS technology for electrical generation purposes,
nor does EPA adequately consider the risks that the technologies will not
mature in time for EGU owners to deploy them. EPA’s BSER
determination is overly optimistic regarding the commercial viability of
CCS today and downplays the cost and practicalities of developing
entirely new supporting infrastructure within the timeframes and at the
costs projected.
Given the implausibility of CCS as a viable option for mitigating
CO2 emissions and the resulting likelihood of premature retirements of
fossil-fired generators, the Final Rule is likely to hamper Amici in their
efforts to provide reliable power to the communities and consumers that
they and others serve.
II. The assumptions and compliance deadlines in the Final

Rule work to exacerbate existing challenges to reliability
and resource adequacy of the electric grid.
7
In December 2023, NERC published its Long-Term Reliability
Assessment, noting:
Environmental regulations and energy policies that are overly

rigid and lack provisions for electric grid reliability have the
potential to influence generators to seek deactivation
despite a projected resource adequacy or operating reliability
risk; this can potentially jeopardiz[e] the orderly
transition of the resource mix. For this reason, regulators
and policymakers need to consider effects on the electric grid
in their rules and policies and design provisions that
safeguard grid reliability.
2023 Long-Term Reliability Assessment, N. Am. Elec. Reliability Corp. 10
(Dec. 2023) (emphasis added) (footnote omitted),
https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/N
ERC_LTRA_2023.pdf. Unfortunately, without modification, the Final
Rule will exacerbate premature retirements of generation with attributes
needed for reliability. The Final Rule did not adequately address these
concerns, despite the legal requirement to address “energy requirements”
in any final rule. 42 U.S.C. § 7411(a)(1). In fact, applying EPA’s own prior
interpretation of its responsibilities under the “energy requirements”
8
provision in the CAA, 5 it did not appropriately consider those

4F
requirements.
The Final Rule unreasonably discounts the fact that owners of
existing fossil power generators will need to make decisions as to whether
to commit to installing this untested technology or retire the generating
unit years before the compliance deadline, given the obligations of states
to submit binding compliance plans by May 2026 under the Final Rule.
See 89 Fed. Reg. at 39,997. As a result, decisions to retire units before the
end of their useful life may be accelerated because of the Final Rule’s
provisions and timelines. The assumptions and compliance deadlines in
the Final Rule thus work to exacerbate existing challenges to the
reliability and resource adequacy of the electric grid.
5In interpreting its responsibilities to meet the “energy requirements”

analysis required in Section 111, EPA has stated:
EPA interprets this caselaw to authorize it to assess the

impacts of the controls it is considering as the BSER,
including their costs and implications for the energy system,
on a sector-wide, regional, or national basis, as
appropriate. For example, the EPA may assess whether
controls it is considering would create risks to the reliability
of the electricity system in a particular area or nationwide
and, if they would, to reject those controls as the BSER.
89 Fed. Reg. at 39,833 (emphasis added).

9
A. EPA did not adequately analyze or adopt proposed

adjustments to the Rule to mitigate potential
reliability impacts.
EPA has not adequately analyzed resource adequacy and reliability
impacts in the Final Rule. Congress explicitly required consideration of
resource adequacy and reliability impacts by providing in Section 111
that EPA consider “energy requirements” in establishing its regulatory
program under this section. 42 U.S.C. § 7411(a). By including that
requirement, Congress clearly required EPA to do more than simply look
at environmental issues in a vacuum without considering the larger
energy requirements of the grid.
EPA’s interpretation of “energy requirements” in the Final Rule
includes “the impact, if any, of the air pollution controls on the source’s
own energy needs.” 6 As noted above, this more limited interpretation is

5F
at odds with its own later interpretation within the Rule and case law
reviewing the term. 7 See, e.g., Sierra Club v. Costle, 657 F.2d 298, 327-28
6F
6 89 Fed. Reg. at 39,833.
7 Amici also refer the Court to Section I(C) of Petitioners’ Opening Brief,
at pages 123-144, for further analysis of this issue, including judicial
interpretation of the term “energy requirements.”
10
(D.C. Cir. 1981). The term “energy requirements” must be interpreted to
require explicit consideration of the Final Rule’s impact on the larger
electricity grid—as the Joint ISOs/RTOs urged in their comments to the
Proposed Rule—rather than simply the “energy requirements” of
individual units, as EPA seems to have done. That is because the delivery
of electricity to customers requires the integration and coordinated
dispatch of multiple generators connected to a networked transmission
and distribution system, virtually simultaneous from its production to its
consumption, from the generator to the end user’s home or business.
Indeed, in their Joint Comments, Amici alerted EPA that it:
[s]hould undertake additional analysis that reflects supply

chain constraints, real world siting and permitting expense
and timelines, requisite infrastructure expansion and the
maintenance of essential grid reliability attributes in order to
provide a full assessment of the Rule’s potential reliability
impacts. The Joint ISOs/RTOs, each of whom administer
interconnection queues for new resources, have information
that would be informative to that analysis.
(CI0673, Joint ISOs/RTOs Comments, at 8.) However, despite offers of
assistance by Amici and promised coordination with other federal
agencies, EPA did not adequately analyze such information before
promulgating the Final Rule.
11
Resource adequacy challenges occur when the total accredited
megawatt rating of all the resources in a region (including generation
and demand response resources) is insufficient to meet the demand plus
reserve margin needed to meet projected load, either seasonally,
annually, or both. With some specific regional differences, generally,
resource adequacy is assessed on an annual basis by determining, on a
forward basis, the needed demand plus reserve margin. 8 That 7F
determination is based on a forecast of load and is correlated with the
risks of outages of needed generation to meet that load forecast,
particularly during peak conditions.
The Joint ISOs/RTOs project their future demand plus reserve
margins annually and address any deficiencies through mechanisms
such as capacity and/or energy markets, deficiency payment-based
resource adequacy constructs, or, in the case of vertically integrated
regions, through the provision of information to states regarding
projected demand plus reserve margin shortfalls, which states are then
8Planning Resource Adequacy Analysis, Assessment and Documentation,

N. Am. Elec. Reliability Corp. 1-4 (Oct. 16, 2017),
https://www.nerc.com/pa/Stand/Reliability%20Standards/BAL-502-RF-
03.pdf.
12
required to address through their integrated resource plans and other
regulatory mechanisms to ensure their utilities have adequate
generation and reserve to serve their native load. 9

8F
But EPA has not adequately analyzed the “energy requirements” of
the system, given these reliability challenges, let alone the “Reliability
Safety Valve” mechanisms Amici proposed. Amici SPP, PJM, and MISO
all operate the electric grid across multiple states, making consideration
of impacts and crafting of solutions appropriate at the regional level,
rather than simply on a unit-by-unit basis. 10 And Section 111

9F
contemplates a shared responsibility between the state environmental
9 Resource Adequacy, ERCOT, https://www.ercot.com/gridinfo/resource

(last visited Sept. 12, 2024); Letter from James P. Danly, Comm’r of the
Fed. Energy Regul. Comm’n to Hon. Michael S. Regan, Adm’r of the U.S.
Env’t Prot. Agency (Dec. 20, 2023) [hereinafter Letter to Adm’r Regan],
https://www.regulations.gov/comment/EPA-HQ-OAR-2023-0072-8216;
2024 SPP Resource Adequacy Report, Sw. Power Pool (June 14, 2024),
https://www.spp.org/documents/71804/2024%20spp%20june%20resourc
e%20adequacy%20report.pdf; PJM Load Forecast Report: January 2024,
PJM (Feb. 1, 2024), https://www.pjm.com/-/media/library/reports-
notices/load-forecast/2024-load-report.ashx; 2025/2026 Base Residual
Auction Report, PJM (July 30, 2024), https://pjm.com/-/media/markets-
ops/rpm/rpm-auction-info/2025-2026/2025-2026-base-residual-auction-
report.ashx.
10Amici ERCOT does operate as a separate interconnection within the

state of Texas.
13
regulators and EPA. 42 U.S.C. § 7411(c), (d). While electric resource
adequacy is a state issue in states which have not restructured their
electricity markets, for the multi-state RTOs (among Amici), resource
adequacy is also a regional issue and not solely an issue that can be fully
addressed by a single state crafting or amending a single state plan or
considering the impacts or operations of a facility or facilities within a
state in isolation. 11
10F
EPA cannot simply disclaim responsibility to analyze these impacts
by citing to the role of other agencies or the states. For one, Congress
assigned the review of “energy requirements” to EPA for consideration
in its rulemaking. Although EPA can certainly cooperate with other
federal agencies, at the end of the day, EPA alone has enforcement
11See MISO Bd. of Dirs., Strategy Update: Reliability Imperative, MISO

(Dec. 7, 2023),
https://cdn.misoenergy.org/20231207%20Board%20of%20Directors%20I
tem%2007b%20Reliability%20Imperative%20Update631057.pdf; SPP
BA Emergency Operating Plan V 9.0, Sw. Power Pool (Oct. 4, 2023),
https://spp.org/documents/70346/spp%20ba%20emergency%20operating
%20plan%20v%209.0.pdf; Energy Transition in PJM: Resource
Retirements, Replacements & Risks, PJM 3, 13 (Feb. 24, 2023),
https://pjm.com/-/media/library/reports-notices/special-
reports/2023/energy-transition-in-pjm-resource-retirements-
replacements-and-risks.ashx.
14
authority over EGUs. A plant needed for reliability simply cannot operate
without facing enforcement actions by the EPA.
By the same token, Section 111 contemplates a shared
responsibility between the state environmental regulators and EPA. See
42 U.S.C. § 7411(c), (d). While in a single state RTO, electric reliability is
a state issue, for the multi-state RTOs that operate a single multi-state
dispatch, reliability is also a regional issue and not solely an issue that
any one state can adequately address through an individual state
implementation plan. As a result, given Congress’ directives, EPA’s
retention of enforcement authority, and the limitations on individual
state plans, EPA cannot dodge its responsibility to adequately assess
“energy requirements” by pointing to others.
Thus, it was incumbent upon EPA to ensure the Final Rule, both in
its provisions and timelines, adequately addressed regional reliability
challenges. In an effort to provide EPA a mechanism for addressing these
concerns, Amici proposed to EPA specific short and long term “Reliability
Safety Valve” measures that would help address and mitigate these
regional impacts. Amici proposed four specific and detailed options to
address the longer-term reliability and several specific shorter-term
15
solutions. Specifically, Amici proposed four options for EPA’s
consideration to address longer-term reliability issues in the context of
the Final Rule:



(Joint Supplemental Comments, supra note 4.) Amici accompanied their
proposals with the legal support for EPA to adopt each such provision,
along with suggested means of implementation. Id.
In fairness, EPA did include certain provisions in the Final Rule to
begin to address the resource adequacy and reliability implications of
the Final Rule and its compliance timelines. However, EPA failed to
address the specific “Reliability Safety Valve” measures Amici proposed.
In doing so, EPA:
16
• failed to address, let alone state, its reasons for not adopting
any of these measures;
• failed to adequately consider the impact of premature

retirements driven by the Rule’s compliance timelines
(despite such concerns documented and substantiated by
Amici and others);
• largely deferred reliability issues to the states without

providing adequate guidance or clarifying an expectation that
regional reliability issues would need to be addressed as a
condition to EPA’s approval of a given state plan; and
• failed to consider, let alone address, Amici’s proposal to

require a process for future analysis and potential adjustment
to the compliance timelines, should the challenges of
implementing CCS delay EPA’s expected in-service dates of
this not-yet-commercial new technology.
EPA’s failure to adequately address Amici’s concerns is grounds for
remand of this proceeding for EPA to address these issues. See, e.g., Ohio
v. EPA, 144 S.Ct. 2040, 2055-56 (2024) (criticizing EPA for failing to
address public comments adequately before issuing final rule).
B. EPA has not adequately considered resource adequacy

and reliability impacts as part of its responsibility to
consider “energy requirements” in conjunction with
other proposed, pending, or existing regulations.
The impact of the Final Rule must also be considered in conjunction
with the numerous other proposed, pending, or existing environmental
regulations that impact grid reliability and resource adequacy—all of
17
which are resulting in a decline in reserve margin and premature
retirement of dispatchable “baseload” resources (i.e., resources most
currently in the form of coal and natural gas). EPA performed an analysis
of resource adequacy; however, by its own admission, EPA did not
analyze the reliability implications to the grid, stating “EPA does not
conduct operational reliability studies.” Technical Memorandum from
the U.S. Env’t Prot. Agency Off. of Air & Radiation 4 (Apr. 2024),
https://www.epa.gov/system/files/documents/2024-04/technical-memo-
resource-adequacy-analysis-vehicle-rules-final-111-egu-rules-elg-and-
mats.pdf.
Certain types of resources are accredited, or count, for different
levels of capacity, depending on their reliability value at times of peak
demand. 12 Traditional dispatchable generators, like coal and natural gas,

11F
12 MISO’s Response to the Reliability Imperative, MISO 7-8,

https://cdn.misoenergy.org/2024%20Reliability%20Imperative%20report
%20Feb.%2021%20Final504018.pdf?v=20240221104216 (last updated
Feb. 2024); Electronic Filing from Michael Kessler, MISO’s Managing
Assistant Gen. Couns., to Hon. Kimberly D. Bose, Fed. Energy Regul.
Comm’n Sec’y (Nov. 30, 2021) [hereinafter Electronic Filing from Michael
Kessler], https://cdn.misoenergy.org/2021-11-
30_RAN%20Seasonal%20Construct%20and%20Availability%20based%
20accreditation608310.pdf; Electronic Filing from Michelle Quinn,
MISO’s Senior Corp. Couns., to Hon. Debbie-Anne Reese, Fed. Energy
Regul. Comm’n Sec’y (Mar. 28, 2024) [hereinafter Electronic Filing from
18
tend to have much higher accredited capacity, availability, or other
necessary reliability attributes than most of the generation or storage
capacity 13 that has replaced these units in recent years. 14

12F 13F
On April 25, 2024, EPA finalized four new rules implementing
pollution restrictions for power plants: the Final Rule, the MATS Rule
(89 Fed. Reg. 38,508 (May 7, 2024)), the ELG Rule (89 Fed. Reg. 40,198
(May 9, 2024)), and the LCCR Rule (89 Fed. Reg. 38,950 (May 8, 2024)).
The Final and MATS Rules focus on air pollution, while the ELG Rule
looks to limit water pollution, and the LCCR Rule regulates coal ash
disposal at previously used disposal sites.
Michelle Quinn], https://cdn.misoenergy.org/2024-03-

28%20Docket%20No.%20ER24-1638-000632361.pdf; Energy Transition
in PJM: Resource Retirements, Replacements & Risks, supra.
13Although longer duration energy storage can help to mitigate these

reliability concerns, long duration energy storage resources are only in
nascent development and have not yet proven economically feasible for
deployment on a mass scale to make up for the premature retirement of
generation. Battery storage capacity also does not provide all the
necessary reliability attributes that coal and natural gas units provide,
such as grid inertia.
14Electronic Filing from Michael Kessler, supra; Electronic Filing from
Michelle Quinn, supra; MISO’s Response to the Reliability Imperative,
supra, at 7-8.
19
Amici are concerned about the chilling impact of the Final Rule—
in conjunction with these other recently adopted rules—on investment
required to retain and maintain existing units that are needed to provide
key reliability attributes and grid services before the Final Rule’s
compliance date. The implementation of the Final Rule, along with these
other new rules, in conjunction with rules already in place, is already
significantly impacting baseload resources with high accreditation
valuations and needed system attributes. Investments are based, in part,
on the expected revenues associated with continuing operation of the
unit. Unit owners may decide to retire units early rather than incur
additional expense and risk. EPA did not adequately address the impact
of these rules holistically as part of the “energy requirements” analysis
required by Congress. 15
14F
Alternatively, should the units remain operational, with the
expectation of retirement at a future date certain, unit owners may forgo
15In the Final Rule, EPA did a limited resource adequacy analysis of the
impacts of the Rule in conjunction with certain other recently issued
environmental rules. However, this analysis did not recognize the more
limited accredited value of renewables utilized by the Joint ISOs/RTOs
in their reliability analyses as compared to the fossil generation predicted
to retire as a result of the various EPA rules.
20
required maintenance in the interim because of the lower return on their
investment. The failure to properly maintain generating units can lead
to a higher incidence of forced outages of these units, diminishing the
dispatchable generation supply in the interim.
In states that employ traditional cost-of-service regulation of the
electric utility sector, the state PUC has authority to direct the
construction of new generation by the vertically integrated investor-
owned utilities they regulate, 16 and in many cases has the ability to
15F
prohibit a generator from retiring. However, even in those states, load is
served from a combination of merchant generation that is not subject to
the same degree of state regulation as well as generation from traditional
vertically integrated utilities subject to state regulation. 17 In addition,

16F
for states that are part of a multi-state RTO or ISO, the state’s resource
16The state PUC traditionally has no authority over generation owned

by cooperatives, municipal utilities, or merchant generation selling into
the wholesale market.
17 This is particularly true for merchant renewable generation which

exists in those states but often serves designated customers through long
term power purchase agreements (“PPAs”) rather than through direct
regulation by the state PUC.
21
adequacy requirements and responsibilities are shared within the region,
to prevent one state from “leaning” on neighboring states.
Moreover, when ISOs/RTOs in regions with vertically integrated
utilities face imminent reliability challenges, there is no one entity that
can simply order a unit to operate, if that unit owner is otherwise facing
violations of its environmental compliance obligations, should it run.
While Section 202(c) of the Federal Power Act does provide a narrow
authorization for the Secretary of Energy to override environmental
requirements if found necessary to ensure reliability, this relief is only
available for up to 90-day periods. Moreover, an applicant for 202(c) relief
needs to show imminent harm given the emergency nature of the statute.
In the context of vertically integrated states, but even more relevant in
areas consisting of restructured states, no unit owner will continue to
invest to maintain a unit simply on the hope that the Secretary of Energy
will grant a last-minute, temporary reprieve from violations of their
environmental compliance requirements.
By the same token, states that have restructured their electricity
markets have effectively ceded their ability to order new generation.
Rather, they depend on the market to send price signals to attract new
22
generation and retire unneeded generation. 18 The markets have worked

17F
quite well in achieving that goal. In PJM, during the initial MATS rule
transition, the market efficiently replaced 20,000 MW of coal generation
with new, cleaner, natural gas generation that took advantage of the
shale gas revolution that was occurring simultaneously. However, as
PJM detailed in its 4R’s (Resource Retirements, Replacements and Risks)
Report, 19 the markets cannot instantly replace policy-driven unit

18F
retirements with units that provide the same or even enhanced reliability
services. MISO, ERCOT, and SPP have all come to the same conclusion. 20 19F
In the Final Rule, EPA did not adequately consider or address potential
18Letter to Adm’r Regan, supra note 9, at 3 (“[T]he majority of Americans

are served by distributors who procure electric power from one or another
of FERC’s wholesale markets . . . . The markets were designed to obtain
the requisite quantity of generation through procurement auctions with
price signals and incentives designed to do the work that the utilities’
planning processes had once done.”).
19Energy Transition in PJM: Resource Retirements, Replacements &

Risks, supra.
20 Joint Comments of Electric Reliability Council of Texas, Inc.;

Midcontinent Independent System Operator, Inc.; PJM Interconnection,
L.L.C.; and Southwest Power Pool, Inc., PJM (Aug. 8, 2023),
https://pjm.com/-/media/documents/other-fed-state/20230808-comments-
of-joint-isos-rtos-docket-epa-hq-oar-2023-0072.ashx.
23
impacts of the Rule on wholesale electricity markets or generation
owners’ decisions to continue or cease operations. 21 In short, the Final

20F
Rule establishes clear timelines, but has not put in place adequate
reliability or resource adequacy safeguards.
C. The Final Rule doesn’t allow enough compliance

flexibility to mitigate short-term grid emergencies.
In addition to failing to address Amici’s proposals to mitigate
resource adequacy concerns, EPA also proposed an unreasonable short-
term remedy to address emergency conditions on the grid that may
require compliance flexibility. For instance, to maintain the reliability of
the electric system within its region, each of the Amici operate under a
set of carefully designed operating procedures that define system
conditions and guide system operator actions in a variety of conditions. 22 21F
Operating procedures guide system operator actions when an event
21 Letter to Adm’r Regan, supra note 9.
22 By way of example, see Operating Procedures, MISO,

https://cdn.misoenergy.org/Three%20Pager%20-
%20MISO%20Operating%20Procedures%2010252022318965.pdf (last
visited Sept. 12, 2024). See also ERCOT Nodal Protocols, ERCOT (Aug.
23, 2024),
https://www.ercot.com/files/docs/2024/08/21/August%2023,%202024%20
Nodal%20Protocols.pdf.
24
occurs on the electric system that has the potential to, or actually does,
negatively impact system reliability. 23 There are a variety of

22F
progressively more serious warnings each of the Joint ISOs/RTOs
communicates ahead of a declared EEA.
EEA1 is the first level of emergency operations and is issued to
maintain reliability of the grid. 24 It signals that each ISO/RTO can no

23F
longer meet the forecasted demand plus operating reserve requirements
without taking action. 25 Put another way, EEA1 means power demand
24F
could exceed supply if actions are not taken. By declaring EEA1, each
ISO/RTO operator is generally able to access additional generation to
increase the supply of electricity. 26 25F
EEA2 is the second level of emergency operations and is issued to
maintain reliability of the grid as operating reserves continue to
23Operating Procedures, supra note 21; ERCOT Nodal Protocols, supra

note 21.
24 By way of example only, see Grid Conditions At a Glance, MISO,

https://www.misoenergy.org/meet-miso/media-center/2024/grid-
conditions-explainer/ (last visited Sept. 12, 2024).
25 Id.
26 Id.
25
decline. 27 It signals that the ISO/RTO is energy deficient and there is a

26F
need to reduce energy demand. 28 By declaring EEA2, an ISO/RTO

27F
operator is able to tap into emergency generation not available during
normal conditions. 29 28F
Energy Emergency Alert 3 (“EEA3”) is the third and final level of
emergency operations and is issued to protect the electric grid from
cascading outages and ensure reliability is maintained to the greatest
number of consumers possible. 30 It signals energy supply and demand

29F
cannot be balanced and power interruptions are imminent or
happening. 31 30F
The Final Rule is too constraining to address reliability impacts
resulting from the compliance strictures of the Rule by making the
declaration of an EEA2 emergency a condition precedent to a unit owner
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
26
availing itself of short-term compliance relief from the Rule’s
requirements. Amici attempted to raise this issue with EPA prior to the
promulgation of the new Rule, which resulted in the addition of two
provisions, (see 89 Fed. Reg. at 39,803, 40,011-40,020), but these
provisions are insufficient.
Specifically, the Rule’s short-term reliability mechanism requires
the declaration of an EEA2 or EEA3, neither of which provide enough
time for ISOs/RTOs to mitigate real time reliability issues as they arise
within an operating day. See 89 Fed. Reg. at 39,805, 39,971-73. Instead,
as Amici urged in their comments to EPA, the availability of compliance
flexibility should be triggered at or in anticipation of grid conditions that
trigger an EEA1 event, when operators are still able to access additional
generation to increase the supply of electricity. The reliability
mechanism in the Rule was a helpful and appreciated step forward, but
on its face, is unduly limited and potentially places the grid—and
customers—at risk. Amici shouldn’t have to wait until there is a real-
time emergency; they should be able to take proactive measures to
protect reliability within the existing EEA structure for short-term
emergencies (i.e., when an EEA1 is, or is expected to be, declared) and
27
through the longer-term reliability safety valve mechanisms Amici
proposed in the docket below.
In longer-term situations, states can ask EPA to extend deadlines,
or decrease technology standards, by which units must cease operations
per the RULOF doctrine. Id. This also was a helpful and appreciated
addition to the Final Rule. However, the lack of any guidance on what
would constitute an acceptable plan invoking RULOF does not provide
the certainty which Amici require, given the reliability challenges that
are imminent, due to rising load growth and premature plant
retirements. Thus, RULOF—although helpful—may not be the safety
valve EPA makes it out to be.
CONCLUSION
Amici worked proactively to craft specific “Reliability Safety Valve”
proposals to address their concerns with the Proposed Rule and
presented them to EPA through detailed written submittals. EPA failed
to adequately address these proposals in the Final Rule, and also failed
to undertake the comprehensive analysis of “energy requirements” that
Congress made clear must be part of any EPA rulemaking under Section
111. As a result, the significant grid reliability issues—and Amici’s
28
proposed solutions—weren’t adequately addressed by EPA in response to
the extensive record presented below by Amici and others.
For these reasons, Amici respectfully request that the Court
remand the Final Rule back to EPA, with instructions for it to adequately
consider the following grid adequacy and reliability issues Amici
previously raised:


adequacy issues;

during emergency conditions;
(5) Establishing an Energy Emergency Alert 1 declaration as the

appropriate trigger for compliance flexibility for individual
units needed for reliability; and
(6) Building into the Rule a fixed period for review if the chosen
BSER technology is not proceeding as quickly as EPA
anticipated in the Final Rule.
29
Absent such a remand, the Final Rule lacks adequate consideration of
“energy requirements” that Congress directed be considered in any
Section 111(d) rulemaking.
ICE MILLER LLP

Jenny R. Buchheit
Counsel of Record
ICE MILLER LLP
(317) 236-2295

30
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed.
R. App. P. 32(a)(7)(B) because it contains 6,228 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(f) and D.C.
Cir. R. 32(e)(1).
This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6). It has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Century Schoolbook.

Jenny R. Buchheit
31
CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of September 2024, I caused
a true and correct copy of the foregoing to be electronically filed with the
Clerk of the Court of the United States Court of Appeals for the District
of Columbia Circuit by using the CM/ECF system. I certify that all
participants in the case are registered CM/ECF users, and that service
will be accomplished by the CM/ECF system.

Jenny R. Buchheit
32

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USCA Case #24-1120 Document #2074674 Filed: 09/13/2024 Page 1 of 17

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

STATE OF WEST VIRGINIA, et al.,

On Petitions for Review of Final Agency Action of the United

MOTION FOR LEAVE TO FILE BRIEF OF MIDCONTINENT

Counsel for Amici Curiae

MOTION FOR LEAVE

Pursuant to Federal Rule of Appellate Procedure 29(a)(3) and D.C.

Circuit Rule 29(b), Amici Curiae Midcontinent Independent System

Operator, Inc. (“MISO”), PJM Interconnection L.L.C. (“PJM”), Southwest

(“ERCOT”) (collectively, the “Joint ISOs/RTOs” or “Amici”) respectfully

request leave to file the accompanying brief in support of Petitioners.

Amici have a strong interest in this case. They are independent

entities, separate from companies that own electric generation and

transmission facilities, that have been designated by the Federal Energy

Regulatory Commission (“FERC”), or in the case of ERCOT, the Texas

Public Utility Commission (“PUC”), as responsible for maintaining and

delivery of power from the high-voltage transmission grid to local

distribution utilities, which are then responsible for delivery to end-use

customers—45 million in MISO, 65 million in PJM, 19 million in SPP,

and 27 million in ERCOT.

Joint ISOs/RTOs 1 to exercise functional control over the high-voltage

transmission system and otherwise administer the bulk electric system

in their regions. One of their critical functions is to facilitate and

maintain the reliable delivery of electricity.

scale electrical network that transmits electricity from power plants to

substations before it is distributed to consumers. Over 100 million

businesses and residences—including this Court—depend on the Joint

ISOs/RTOs to coordinate the generation and transmission of the right

amount of electricity every minute of every day to meet individual end-

use customer requirements. In addition to managing and ensuring the

1 FERC’s jurisdiction over ERCOT is limited, but does include authority

including operating the electrical grid in a defined geographic area,

and purchase of electricity, and ensuring the reliable transmission of

additional modification, the compliance timelines and related provisions

in the pace of premature retirements of electric generation units that

possess critical reliability attributes at the very time when such

generation is needed to support ever-increasing electricity demand

adequate back-up generation to support an increasing amount of

intermittent renewable generation.

Such inevitable and foreseeable premature retirement decisions

Joint ISOs/RTOs’ ability to maintain the reliability of the electric power

2021) (“As an RTO, PJM promotes efficiency and reliability in the

operation and planning of the electric transmission grid. To promote

system has sufficient generating capacity.”) (alterations adopted)

(quotations and citations omitted). For these reasons, Amici have a

Furthermore, because of their unique, independent viewpoint, their

proffered Amici brief can explain how electricity is often delivered to

customers on a regional basis. See Int’l Transmission Co. v. FERC, 988

is a FERC-approved non-profit, independent organization that

administers the grid on a regional basis on behalf of transmission-owning

To that end, in their comments on the Proposed Rule, the Joint

reliability of the grid. Specifically, Amici proposed:

(1) Providing up-front, clear criteria on the use of the RULOF

(2) Creating a sub-category of units needed for reliability;

(3) Providing clear guidance to the states regarding what would

(4) Recommending to the states in a given region served by an

adopt each such provision, along with suggested means of

Amici’s proffered brief explains that in failing to address these legitimate