<div class="css-17ih8de interactive-body"><style> .g-doc-page_paper:not(.g-doc-page_html) { padding-top: 132.95454545454547%; } .g-related-link { width: calc(100% - 40px); max-width: 600px; margin: 20px auto 16px; border-top: 1px solid #ccc; padding-top: 20px; } .g-related-link_header { font-family: nyt-franklin, arial, helvetica, sans-serif; font-size: 0.75rem; font-weight: 700; text-transform: uppercase; letter-spacing: 0.05em; color: #999; margin-bottom: 10px; } .g-related-link a { text-decoration: none; color: #333; } .g-related-link a:hover { color: #666; text-decoration: underline; } .g-related-link_text { font-family: nyt-cheltenham, georgia, 'times new roman', times, serif; font-size: 1.125rem; line-height: 1.375rem; font-weight: 700; color: #333; margin: 0; } @media (min-width: 740px) { .g-related-link_text { font-size: 1.1875rem; line-height: 1.4375rem; } } </style> <div class="g-graphic"> <div class="g-doc-wrapper g-ocr-ready"> <div class="g-item g-document"> <div class="g-doc-page_wrapper"> <div class="g-doc-page_container"> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-1"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 1 of 16" aria-describedby="page-1-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/1/output-1.png" height="1638" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1232"/> <noscript> <img alt="Page 1 of 16" aria-describedby="page-1-text" class="g-doc-image" height="1638" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/1/output-1.png" width="1232"/> </noscript> <p class="g-doc-text" id="page-1-text">CHAMBERS OF THE CHIEF JUSTICE Supreme Court of the United States Washington, D. C. 20543 February 5, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. I have received five emergency applications seeking a stay of the EPA's Car- bon Pollution Emission Guidelines for Existing Stationary Sources: Electric Gener- ating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015), also known as the "Clean Power Plan." Nationwide, by 2030, the rule "will achieve CO2 emission reductions from the utility power sector of approximately 32 percent from CO2 emission levels in 2005." Id., at 64,665. Within two weeks of the rule's publication, 27 states and several labor un- ions, businesses and trade associations filed petitions for review and applications for an immediate stay from the D. C. Circuit. The D. C. Circuit denied the stay on January 21, 2016, and the above-captioned applications renew the request in this Court. On January 27, I requested a response to No. 15A773, an application filed by 26 states. We received a response from the Solicitor General yesterday. I refer the applications to the Conference with my vote to grant the stay, in order to pre- serve the status quo pending judicial review. Absent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector before this Court has an opportunity to review its legality. A stay is appropriate if there is (1) a "reasonable probability" that four Jus- tices will grant certiorari, (2) a "fair prospect" that a majority of the Court will re- verse, and (3) a likelihood of irreparable harm. Conkright v. Frommert, 556 U. S. 1401, 1402 (2009) (GINSBURG, J., in chambers). In a close case, it may be appropri- ate to "balance the equities." Id. See also Nken v. Holder, 556 U. S. 418, 429-430, and n. 1 (2009) (relief from administrative action evaluated under stay factors). I have little doubt that whatever the outcome of the proceedings in the D. C. Circuit, there will be a petition for cert. I find it very likely that four members of this Court will vote to grant the petition, again regardless of the outcome below. I also believe that there is a fair prospect for reversal. The EPA promulgated</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-2"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 2 of 16" aria-describedby="page-2-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/2/output-2.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1236"/> <noscript> <img alt="Page 2 of 16" aria-describedby="page-2-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/2/output-2.png" width="1236"/> </noscript> <p class="g-doc-text" id="page-2-text">the rule under Section 111(d) of the Clean Air Act, which requires "standards of performance" for existing utility plants. See 42 U. S. C. §7411(d)(1)-(2). The stat- ute defines a "standard of performance" as "a standard for emissions of air pollu- tants which reflects the degree of emission limitation achievable through the appli- cation of the best system of emission reduction." §7411(a)(1). The EPA argues that the "application of the best system of emission reduction" to a coal-fired utility in- cludes having that utility retire its coal-fired plants and open (or invest in) natural gas or renewable energy production. That interpretation of §7411 represents a new approach to the statute. Past rules under $7411(d) have contemplated that utilities could comply with the articu- lated "best system of emission reduction" solely through installation of control tech- nologies (e.g., scrubbers)-which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a "long-extant statute" to "bring about an enormous and transformative expansion in [their] regulatory authority without clear congres- sional authorization." Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also raise a strong argument that regulation of power plants under §7412 precludes the EPA's promulgation of this rule under §7411(d). The applicants also meet the third criterion for a stay, irreparable harm. The D. C. Circuit will hold oral argument on June 2, 2016, so a cert petition is not likely to be considered by this Court until this winter. Depending on the timing of the D. C. Circuit's decision-and taking into account the potential for en banc review- it is possible that this Court will not rule on the merits until OT2017. Though the rule does not require emissions reductions until 2022, its impact is being felt now. First, under the rule, states have the option to develop their own suite of state regulations (subject to EPA approval) to meet the rule's targets. If a state does not submit a plan or seek a two-year extension by September, 2016, the EPA will impose a federal plan on the state's power sector. The EPA represents that "[t]he submission required by September 2016 to obtain the extension is not bur- 1 In 2005, the EPA promulgated the "Clean Air Mercury Rule," under which the agency "determined that a cap-and-trade program based on control technology available in the relevant timeframe is the best system for reducing [mercury] emissions." 70 Fed. Reg. 28,606, 28,617 (May 18, 2005). Under the mercury rule, the EPA set the cap-and-trade caps based on an analysis of control technologies that individual plants could install, meaning that the caps would be met if all utilities installed the designated control technologies. The D. C. Circuit vacated the Clean Air Mercury Rule on other grounds, New Jersey v. EPA, 517 F. 3d 574 (2008), so that rule's interpretation of §7411(d) was never tested by a court. In any event, the Clean Power Plan is an assertion of a different type and magnitude of authority than the Clean Air Mercury Rule-the Clean Power Plan's CO2 limits on power plants cannot be achieved through use of control technologies. See EPA Opposition to Motions to Stay Final Rule in No. 15-1363 (CADC), pp. 12-13 ("[N]o one disputes" that "actions that power plants can take within the physical boundaries of their particular facilities," such as the application of control technologies, "will fail to curb CO2 emissions in any meaningful way.").</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-3"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 3 of 16" aria-describedby="page-3-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/3/output-3.png" height="1634" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1226"/> <noscript> <img alt="Page 3 of 16" aria-describedby="page-3-text" class="g-doc-image" height="1634" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/3/output-3.png" width="1226"/> </noscript> <p class="g-doc-text" id="page-3-text">densome," SG Response at 59, and that extensions are "readily obtained," id., at 54, but the applicants indicate that they are currently in the process of committing time and resources to compliance as the first deadline rapidly approaches, see No. 15A773, at 41-42. Second, and more disruptively, the EPA's own models show that the rule will cause immediate shifts in power generation, as the industry must make changes to business plans today to meet the 2022 requirements. The agency's models show that the impact of the rule will reduce coal production for power sector use by 2.0 percent in 2016 and 2017, and by 4.3 percent in 2018. See No. 15A776, at 764A- 765A. That harm, once incurred, is irreversible. Given the long lead times and high capital expenditures required for the construction of new plants, once a utility takes steps to comply with the rule its actions are not likely to be undone. As the EPA Administrator has stated, the Clean Power Plan is being "bak[ed] . . . into the sys- tem" right now. Interview of EPA Admin. Gina McCarthy by BBC World News America (Dec. 7, 2015). Solar plants are not built in a day. Past experience makes the case for irreparable harm: On June 29, 2015, we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act. See Michigan v. EPA, 135 S. Ct. 2699. One day later, the EPA announced that it was "confident [it was] still on track to reduce" the targeted pollutants in part be- cause "the majority of power plants are already in compliance or well on their way to compliance." Janet McCabe, Acting Asst Admin. for Office of Air and Radiation, In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision. In other words, the absence of a stay allowed the agency to effectively implement an important program we held to be contrary to law. I recommend granting the stay. Sincerely, JGR/jbt</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-4"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 4 of 16" aria-describedby="page-4-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/4/output-4.png" height="1642" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1234"/> <noscript> <img alt="Page 4 of 16" aria-describedby="page-4-text" class="g-doc-image" height="1642" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/4/output-4.png" width="1234"/> </noscript> <p class="g-doc-text" id="page-4-text">CHAMBERS OF JUSTICE STEPHEN BREYER Supreme Court of the United States Washington, D. C. 20543 February 5, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. I would issue an order in these applications along the following lines: Applications for stays having been submitted to THE CHIEF JUSTICE and by him referred to the Court, the Court denies the applications with the following qualification: Any State that, after submitting a request for an extension consistent with that described on page 59 of the Solicitor General's Memorandum, does not receive such an extension may renew its application for a stay with this Court. Any party may renew its application for stay after the Court of Appeals for the D. C. Circuit has issued its decision. I prefer this temporizing order to a grant of these stays for several reasons. First, it is unusual for this Court to issue a stay of an agency's order during the time that the Court of Appeals is considering its lawfulness. Second, issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult. We do not yet have the Court of Ap- peals' view of the matter. Third, it is difficult at this point to say that the absence of a stay will cause irreparable harm. With respect to the private applicants, the order does not require any company to take action for six years (until 2022). If they lose in the Court of Appeals, they may ask us for a stay then. While I concede that advance planning may be necessary, I do not see how a few extra months will make a significant dif- ference. With respect to the States, the Solicitor General points out that, to receive from the EPA a two-year extension of the current September 2016 deadline (until September 2018), a State need only identify the approaches (if any) under consider- ation, describe opportunities (if any) for public input, and explain why the State requires additional time. Allowing the EPA to entertain such requests in the first</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-5"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 5 of 16" aria-describedby="page-5-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/5/output-5.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1224"/> <noscript> <img alt="Page 5 of 16" aria-describedby="page-5-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/5/output-5.png" width="1224"/> </noscript> <p class="g-doc-text" id="page-5-text">instance has the virtue of allowing the agency to proceed with those aspects of the rule that are not challenged here, as well as giving the EPA the opportunity to respond to requests for an extended deadline in the first instance. If the EPA grants the requests, we will have more than enough time to hear and decide the matter. If the EPA denies the applicants' requests, they can quickly return to us. Moreover, all of the applicants remain free to renew their applications for a stay when the D. C. Circuit issues its decision, which it has agreed to do on an ex- pedited basis. Yours sincerely, SGB/Jun</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-6"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 6 of 16" aria-describedby="page-6-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/6/output-6.png" height="1638" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1226"/> <noscript> <img alt="Page 6 of 16" aria-describedby="page-6-text" class="g-doc-image" height="1638" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/6/output-6.png" width="1226"/> </noscript> <p class="g-doc-text" id="page-6-text">CHAMBERS OF THE CHIEF JUSTICE Supreme Court of the United States Washington, D. C. 20543 February 6, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. - 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. - 15A787 Chamber of Commerce, et al. v. EPA, et al. - 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. I continue to believe that an immediate stay, as opposed to the proposed order, remains the appropriate course of action. Without a stay of the EPA's rule, both the states and private industry will suffer irreparable harm from a rule that is-in my view-highly unlikely to survive. The proposed order simply recites that the applicants may renew their applications in light of changed circumstances, which is always the case. At the outset, I note that there are no "aspects of this rule that are not chal- lenged here." The applicants challenge the EPA's authority to promulgate the rule, period. Regarding the specific points raised in support of the proposed order: As to the first point, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regu- lation ever imposed on the power sector-net costs have been estimated to run as high as $480 billion from 2017-2031 (in present value). And we have the very recent experience of the Mercury Air Toxics Standards (MATS) rule, which confirms how EPA overreaching in the absence of a stay in these unusual circumstances effectively evades judicial review. As to the second point, all stays-whenever issued-suggest a view on the merits of the case. Indeed, a view on the merits is one of the explicitly enumerated stay factors. See Conkright v. Frommert, 556 U. S. 1401, 1402 (2009) (GINSBURG, J., 1 See NERA Economic Consulting, Potential Energy Impacts of the EPA Proposed Clean Power Plan (October 2014); see also Energy Ventures Analysis, Inc., EPA Clean Power Plan: Costs and Impacts on U. S. Energy Markets (October 2014). The foregoing studies evaluate the rule as proposed in the Notice of Proposed Rule- making, which is similar in magnitude to the final rule. While the sources of those analyses lead me to believe that their figures are likely at the high end of a possible cost range, it is no secret that the plan is designed to "aggressive [ly] transfor[m] . . . the domestic energy industry." No. 15A773, at 3, and n. 2 (citing Washington Post article).</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-7"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 7 of 16" aria-describedby="page-7-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/7/output-7.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1228"/> <noscript> <img alt="Page 7 of 16" aria-describedby="page-7-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/7/output-7.png" width="1228"/> </noscript> <p class="g-doc-text" id="page-7-text">in chambers). There is nothing unique in that regard about issuing a stay here. True, we do not have the Court of Appeals' view on the matter. But while a rea- soned decision from a Court of Appeals is generally helpful in evaluating the merits of a stay application, in this well-lawyered set of applications the merits of the legal positions taken by both sides seem clear. In my view, it is highly doubtful that this Court will bless the EPA's expansive definition of the phrase "system of emission reduction." While the Solicitor General argues that the word " 'system' is expansive, encompassing a 'set of connected things or parts forming a complex whole' or a 'set of principles or procedures according to which something is done," " SG Response at 35 (quoting Oxford Dictionaries), that definition provides no limiting principle at all. In any event, the applicable standard for a stay is simply a "fair prospect" of success on the merits. Conkright, 556 U. S., at 1402 (GINSBURG, J., in chambers). As to the third point, the proposed order is insufficient to avoid irreparable harm. While the D. C. Circuit has expedited briefing in this case, the court has not "agreed to issue its decision on an expedited basis." It remains highly likely that this Court will not issue a decision until 2018 at the earliest, long after the real- world impacts of the rule would have been felt in the absence of a stay. The proposed order forces each state to engage its regulatory apparatus and expend resources well before that date, and does nothing to limit the on-going, cu- mulative, and irreversible harms that private parties are incurring each day under the rule. For example, the EPA's models show that the rule will cause shifts in the nation's power generation now-a fact supported by the applicants' declarations. See, e.g., No. 15A778, at 172A. It does not assuage my concerns to note that if the applicants lose in the Court of Appeals they "remain free to renew their application for a stay" at that point. I have little doubt that if the applicants renew their stay request following the panel's decision, the opposing parties will ask that we refrain from acting until the conclusion of any en banc proceedings. And then again while we consider a petition for certiorari, and then again while we decide the merits of the case. While each of those discrete periods may only be "several months," each passing day sees the rule further entrenched-de facto if not de jure. The comments of the EPA Administrator herself indicate that without imme- diate action from this Court, this rule will become functionally irreversible-like the ill-fated MATS rule-before this Court can test its legality. When a BBC interview- er asked Administrator McCarthy whether the Administration's climate change policies would persist if a new President adopted a different view, she responded: "[O]n issues like the Clean Power Plan, we are, we are baking that into the system. This is not a policy debate, this is now a rule that's final- ized, and it's [going] be solid no matter what Congress, what signals</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-8"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 8 of 16" aria-describedby="page-8-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/8/output-8.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1222"/> <noscript> <img alt="Page 8 of 16" aria-describedby="page-8-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/8/output-8.png" width="1222"/> </noscript> <p class="g-doc-text" id="page-8-text">Congress wants to send. But more importantly, every state is actively submitting, going to be submitting their plans. They're working on them now." Interview of EPA Administrator Gina McCarthy by BBC World News America (Dec. 7, 2015). I am of the mind that a rule designed to transform a substantial swath of the nation's economy should be tested by this Court before it is presented as a fait ac- compli. But it seems that the EPA is sufficiently confident of this rule's immediate implications that not even the combined efforts of Congress and the President could reverse its effects. The agency, it would seem, has made a compelling case for the applicants' claims of irreparable harm. Sincerely, JGR/ jot</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-9"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 9 of 16" aria-describedby="page-9-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/9/output-9.png" height="1642" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1222"/> <noscript> <img alt="Page 9 of 16" aria-describedby="page-9-text" class="g-doc-image" height="1642" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/9/output-9.png" width="1222"/> </noscript> <p class="g-doc-text" id="page-9-text">CHAMBERS OF JUSTICE ELENA KAGAN Supreme Court of the United States Washington, D. C. 20343 February 7, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. - 15A793 North Dakota v. EPA, et al. I agree with Steve that we should direct the States to seek an extension from the EPA before asking this Court to intervene. We could also include, at the end of such an order, language along the lines of the following, to encourage the D. C. Circuit to act expeditiously in its resolution of this matter: "In light of that court's agreement to consider this case on an expedited schedule, we are confident that it will [or even: we urge it to] render a decision with appropriate dispatch." See Doe v. Gonzales, 546 U. S. 1301, 1308 (2005) (GINSBURG, J., in chambers); Kemp v. Smith, 463 U. S. 1344, 1345 (1983) (Powell, J., in chambers); Holtzman v. Schlesinger, 414 U. S. 1304, 1305, n. 2 (1973) (Marshall, J., in chambers). The unique nature of the relief sought in these applications gives me real pause. The applicants ask us to enjoin a regulation pending initial review in the court of appeals. As we often say, "we are a court of review, not of first view." See Cutter v. Wilkinson, 544 U. S. 709, 718 n. 7 (2005); cf. Doe, 546 U. S., at 1308 ("Re- spect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."). As far as I can tell, it would be unprecedented for us to second-guess the D. C. Circuit's deci sion that a stay is not warranted, without the benefit of full briefing or a prior judi- cial decision. On the merits, this is a difficult case involving a complex statutory and regu- latory regime. Although the parties' abbreviated discussion of the issues at stake here makes it difficult for me to determine with any confidence which side is likely to ultimately prevail, it seems to me that at this stage the government has the bet- ter of the arguments. The Chief's memo focuses on the applicants' argument that the "best system of emission reduction" refers "solely [to] installation of control technologies (e.g., scrubbers)." 2/5 Memo, at 2. The ordinary meaning of "system" is in fact quite broad, appearing to encompass what EPA has done here. Of course, we would want to consider this term in the larger context of the Clean Air Act's regula-</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-10"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 10 of 16" aria-describedby="page-10-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/10/output-10.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1222"/> <noscript> <img alt="Page 10 of 16" aria-describedby="page-10-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/10/output-10.png" width="1222"/> </noscript> <p class="g-doc-text" id="page-10-text">tion of stationary source emissions,' and we might well decide to place some limit- ing principle on that term. But I think the government raises strong arguments that the regulation here falls within a proper construction. Applicants' other statu- tory challenge, not discussed in the Chiefs memos, requires us to reconcile what appear to be two simultaneous and contradictory amendments to the same statuto- ry provision of a bill. Applicants' limited submissions at this stage suggest that the answer to that question will turn on a careful study of the bill's history and Con- gress's procedures for codifying session laws. See No. 15A778, at 13-23. Although those questions are not easily resolved at this stage, I do note that the applicants' reading produces a real anomaly: Power plants producing only nonhazardous emis- sions would be regulated under Section 111(d), but if a class of plants produced any hazardous emissions regulated under Section 112, that class's emissions of unhaz- ardous emissions would be wholly unregulable. I find it hard to believe that Con- gress intended that outcome. Further, I agree with Steve that the applicants have failed to demonstrate the requisite likelihood of irreparable harm. The State applicants' claim of irreparable harm is based on their assertion that, absent relief, they will be required to design and enact regulations to meet the Plan's emissions targets. As Steve observes, though, a State can obviate those harms by asking the EPA for a two-year extension of the September 2016 deadline to submit its plan. I think it wise to direct the applicants to first seek relief through that more ordinary route before granting the drastic and unusual remedy the States. seek. The two-year extension for the States is also likely to obviate the industry applicants' claims of irreparable harm. The rule itself imposes no obligations on any regulated entity-rather, it is the regulations promulgated by the States that do so. If the States secure extensions until September 2018, then no State regula- tions are likely to be promulgated before that date and, accordingly, no action will be legally required of the industry applicants. Moreover, the applicants' assertion that, absent relief, they will have to begin preparing for those regulations by taking coal plants out of service or beginning construction on new, renewable energy plants in the limited time between now and the issuance of the D. C. Circuit's opinion is both entirely speculative and highly doubtful. The rule imposes no requirement that any plant, or class of plant, be shut down. Nor does it require that any particular type of plant be constructed. Rather, it requires only that States meet an overall emissions target-a goal it gives the For instance, other provisions of the Clean Air Act use the phrase "best available control technology," 42 U.S. C. §7479(3), which seems a far better match for the definition advanced by the applicants than "best system of emission reduction." How, if at all, these two terms relate is a question unaddressed by the parties at this stage.</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-11"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 11 of 16" aria-describedby="page-11-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/11/output-11.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1224"/> <noscript> <img alt="Page 11 of 16" aria-describedby="page-11-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/11/output-11.png" width="1224"/> </noscript> <p class="g-doc-text" id="page-11-text">States significant discretion to pursue by adopting whatever means they think best, including the adoption of more effective scrubber technology, carbon sequestration techniques, or a cap-and-trade system. I cannot imagine that a regulated entity would take such extremes measures as shutting down a coal plant in anticipation of State regulations that, when promulgated, may not require anything of the sort. That is especially true because the rule phases in its requirements over an eight-year period. 80 Fed. Reg. 64785-64786. While applicants' claims of harm seem to assume that total compliance is required by 2022, the rule in fact contem- plates only a one percent emissions reduction in that year. App. to U. S. Memoran- dum in Opposition 11a. It is implausible that such a minor emissions reduction to be achieved six years hence will require substantial and irrevocable commitments of resources in the coming months. In any event, under even the most generous read- ing of the applications, the applicants' claims of irreparable harm involve disputed issues of fact ill-suited for resolution by this Court at this stage. Sincerely, Shan</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-12"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 12 of 16" aria-describedby="page-12-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/12/output-12.png" height="1640" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1226"/> <noscript> <img alt="Page 12 of 16" aria-describedby="page-12-text" class="g-doc-image" height="1640" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/12/output-12.png" width="1226"/> </noscript> <p class="g-doc-text" id="page-12-text">February 16, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. - 15A776 Basin Elec. Power Cooperative, et al v. EPA, et al. 15A787 Chambers of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. - I agree with Steve's proposal and Elena's supplement to that proposal. As Elena notes, it would be unprecedented for us to grant a stay before any court has reviewed this complicated and complex case. The statutory questions turn on the interplay of several provisions of the Clean Air Act. I agree with Elena that at first glance the government appears to have the better argument. I do not think that the Applicants' likelihood of success on the merits is so high as to justify granting this extraordinary relief. More importantly, I think our resolution of these issues will be greatly enhanced by the views of the D. C. Circuit, full briefing, and our considered, unhurried attention. Moreover, the factual basis for the Applicants' claim of irreparable harm seems hotly contested by the Government and in tension with at least my cursory review of the record. For example, the Chief's memos note that "the EPA's own models show that the rule will cause immediate shifts in power generation, as the industry must make changes to business plans today to meet 2022 requirements. The agency's models show that the impact of the rule will reduce coal production for power sector use by 2.0 percent in 2016 and 2017, and by 4.3 percent in 2018." 2/5 Memo, at 3. The Government, however, has cautioned that the EPA model is not intended to predict any immediate changes in power generation, and that drawing any short- term inferences from its highly stylized model is fraught with danger. According to the Government, "The simplifications and constraints built into the Model mean that it is not designed to reliably forecast the Rule's impacts on specific power plants, particularly in the near-term period at issue here (i.e., during the pendency of this litigation)." SG Br., at 66 (emphasis added). In a declaration an EPA official further cautions, "[b]ecause of the inclusion of simplified modeling assumptions that do not capture all the implementation flexibilities available to states, near term impacts on the power sector in the policy case will be overstated." SG App. 49a (emphasis added). Indeed, during the notice and comment period, industry com- menters criticized the model for making predictions about closures in 2016 and</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-13"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 13 of 16" aria-describedby="page-13-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/13/output-13.png" height="1664" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1248"/> <noscript> <img alt="Page 13 of 16" aria-describedby="page-13-text" class="g-doc-image" height="1664" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/13/output-13.png" width="1248"/> </noscript> <p class="g-doc-text" id="page-13-text">2017 that were overstated and empirically false. SG Br., at 67-68. To the contrary, as the SG notes, no applicant has identified a single real plant-as opposed to a hypothetical "model plant"-that is in immediate danger of closure absent a stay. Id., at 65. The Government takes the position that, in the short-term, any plant clo- sures are likely driven by long-term economic trends towards gas-fired and renewa- ble generation. Id., at 64. Similarly, the EPA noted in the preamble to the final rule that its expected impact of the rule "is fully consistent with the recent changes and current trends in electricity generation, and as a result, would by no means entail fundamental redirection of the energy sector." 80 Fed. Reg. at 64,785 Similarly, the Chief's memo notes that the rule "has been described as the most expensive regulation ever imposed on the power sector-net costs have been estimated to run as high as $480 billion from 2017-2031." 2/6 Memo, at 1. That is one view-a likely biased view, as the Chief's memo recognizes. The EPA's analysis of the economic costs, however, is significantly lower. According to the EPA's Regulatory Impact Analysis, which is specifically "designed to assess the overall impacts of the Rule on the energy sector and the economy," the rule is estimated to reach an annual cost of between $1-3 billion in 2025, and $5.1- 8.4 billion in 2030. SG App. 35a-37a. The cost ranges will firm up depending on which plans states use-which, of course, underscores the uncertainty of the impact of the rule on any particular entity. Notably, the EPA takes the position that "these costs are in line with, and in some cases less than, the costs of other CAA rules for power plants." App. 36a-37a (emphasis added) (comparing with various programs). Given these and many other-unresolved factual disputes and uncertain- ties, I fail to see how the Applicants have shown an immediate risk of irreparable harm that justifies an emergency stay on limited briefing before the D. C. Circuit will hear argument on this regulation in just four months. I think our review will be greatly aided by the views of that court. As Steve notes, if states do not receive the two-year extensions the Government represents they can easily obtain, this Court would still be in a position to grant any appropriate relief six years before any legal requirement will be imposed on a regulated entity. I vote to deny the applica- tions for a stay. Sincerely,</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-14"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 14 of 16" aria-describedby="page-14-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/14/output-14.png" height="1636" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1230"/> <noscript> <img alt="Page 14 of 16" aria-describedby="page-14-text" class="g-doc-image" height="1636" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/14/output-14.png" width="1230"/> </noscript> <p class="g-doc-text" id="page-14-text">CHAMBERS OF JUSTICE SAMUEL A. ALITO, JR. Supreme Court of the United States Washington, D. C. 20543 February 7, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al. v. EPA, et al. - - 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. I agree entirely with the Chief's most recent memorandum and continue to believe strongly that a stay is warranted. In my view, the applicants are very likely to succeed on the merits of their claim. I also agree with the Chief that the irreparable harm the applicants face is immediate and significant. Any suggestion to the contrary is inconsistent with the EPA's own Integrated Planning Model (the economic model underlying the EPA's Regulatory Impact Analysis of the rule), which explicitly anticipates the rule will begin to reorder the domestic power industry in 2016 (not 2022). The IPM model projects that the country's composition of power generation will change in 2016, including through the closure of coal-fired plants. For example, the EPA predicts that, in 2016 alone, the CPP will cause the power sector to lose 5.1% of its coal-fired generation capacity. See No. 15A776, at 765a (projecting, in 2016, 203 gigawatts of coal-fired capacity with the CPP, compared with 214 gigawatts absent the CPP). Sonia and the SG note that the EPA's model includes simplifying assump- tions. Certainly that's true of this model, as it is of all models. Perhaps the model overstates (as the SG contends is a possibility) or understates (as the industry ap- plicants contend)¹ the current impacts of the rule. But it is indisputable that the Agency's own model tells us to expect a substantial shift in power generation right now because of the rule. We should hold the EPA to its own best analysis of when the "generation shifting" its rule requires will begin. Surely the EPA may not rely on this model to justify the cost-benefit analysis of its regulation, but then disavow it as too "uncertain" on the question of harm. And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered-nor solar plants purchased-at the drop of a hat. Of course, the Admin- istrator knows this, which is why she effectively implied that, if the rule is allowed The industry warns us that the EPA's model artificially understates the short-term impact of the rule. See, e.g., No. 15A776, at 727a.</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-15"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 15 of 16" aria-describedby="page-15-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/15/output-15.png" height="1638" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1234"/> <noscript> <img alt="Page 15 of 16" aria-describedby="page-15-text" class="g-doc-image" height="1638" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/15/output-15.png" width="1234"/> </noscript> <p class="g-doc-text" id="page-15-text">to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review-and by exten- sion, our institutional legitimacy-a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. If we fail to stay the rule and maintain the status quo, our resolution of the merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript. Sincerely, SAA/bsg</p> </div> </div> </div> <div class="g-doc-page g-doc-page_image" data-hasannotations="false" id="page-16"> <div class="g-doc-page_inner clearfix"> <div class="g-doc-page_paper doc-shell"> <img alt="Page 16 of 16" aria-describedby="page-16-text" class="g-doc-image lazyload" data-src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/16/output-16.png" height="1638" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png" width="1230"/> <noscript> <img alt="Page 16 of 16" aria-describedby="page-16-text" class="g-doc-image" height="1638" src="https://static01.nyt.com/newsgraphics/documenttools/9ed1d3100212a552/16/output-16.png" width="1230"/> </noscript> <p class="g-doc-text" id="page-16-text">CHAMBERS OF JUSTICE ANTHONY M. KENNEDY Supreme Court of the United States Washington, D. C. 20543 February 9, 2016 Memorandum to the Conference Re: 15A773 West Virginia, et al v. EPA, et al. 15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al. 15A778 Murray Energy Corp., et al. v. EPA, et al. 15A793 North Dakota v. EPA, et al. The memoranda from the Conference have been very helpful. In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now. Therefore, I agree with the recommendation of the Chief that the stay applications be granted. Sincerely, Amklare</p> </div> </div> </div> </div> </div> <div class="g-doc-footer"> <p class="sr-only">A PDF version of this document with embedded text is available at the link below:</p> <a class="g-download-link" href="https://static01.nyt.com/newsgraphics/documenttools/3af87d97f2b6da24/6b439f9a-full.pdf" target="_blank"> <h2>Download the original document (pdf)</h2> </a> </div> </div> <div class="g-img-overlay_container" id="g-img-overlay"> <div class="g-img-overlay"> <div class="g-img-overlay_inner"> <img alt="Image of the selected page" class="g-img-image" src="https://static01.nyt.com/packages/flash/multimedia/ICONS/transparent.png"/> <div id="g-img-close"> <span class="g-img-icon-text">Close</span> <span class="g-img-icon g-close">×</span> </div> </div> </div> </div> </div> </div> </div>