EME Homer City Generation, L.P. v. Envtl. Prot. Agency, Nos. 11–1302

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKAVANAUGH
Citation696 F.3d 7
PartiesEME HOMER CITY GENERATION, L.P., Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents San Miguel Electric Cooperative, et al., Intervenors.
Decision Date24 January 2013
Docket Number11–1338,11–1378,11–1340,11–1375,11–1388,11–1363,11–1362,11–1379,11–1350,11–1359,11–1372,11–1366,11–1393,11–1369,11–1360,11–1392,Nos. 11–1302,11–1386,11–1364,11–1371,11–1365,11–1385,11–1376,11–1329,11–1315,11–1383,11–1357,11–1394,11–1361,11–1389,11–1323,11–1387,11–1377,11–1368,11–1381,11–1390,11–1358,11–1373,11–1395.,11–1380,11–1384,11–1382,11–1391,11–1367,11–1374

696 F.3d 7

402 U.S.App.D.C.
383

EME HOMER CITY GENERATION, L.P., Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents
San Miguel Electric Cooperative, et al., Intervenors.

Nos. 11–1302, 11–1315, 11–1323, 11–1329, 11–1338, 11–1340, 11–1350, 11–1357, 11–1358, 11–1359, 11–1360, 11–1361, 11–1362, 11–1363, 11–1364, 11–1365, 11–1366, 11–1367, 11–1368, 11–1369, 11–1371, 11–1372, 11–1373, 11–1374, 11–1375, 11–1376, 11–1377, 11–1378, 11–1379, 11–1380, 11–1381, 11–1382, 11–1383, 11–1384, 11–1385, 11–1386, 11–1387, 11–1388, 11–1389, 11–1390, 11–1391, 11–1392, 11–1393, 11–1394, 11–1395.

United States Court of Appeals,
District of Columbia Circuit.

Argued April 13, 2012.
Decided Aug. 21, 2012.

Rehearing En Banc Denied Jan. 24, 2013.


[696 F.3d 9]


On Petitions for Review of a Final Rule of the Environmental Protection Agency.

Bill Davis, Assistant Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for Governmental Petitioners.
With him on the briefs were Greg Abbott, Attorney General, Jonathan F. Mitchell, Solicitor General, Jon Niermann, Chief, Environmental Protection Division, Luther J. Strange, III, Attorney General, Office of the Attorney General for the State of Alabama, Leslie Sue Ritts, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the State of Florida, Jonathan A. Glogau, Chief, Complex Litigation, Samuel S. Olens, Attorney General, Office of the Attorney General for the State of Georgia, John E. Hennelly and Diane L. DeShazo, Senior Assistant Attorneys General, Thomas M. Fisher, Solicitor General, Office of the Attorney General for the State of Indiana, Valerie Marie Tachtiris, Deputy Assistant Attorney General, Jeffrey A. Chanay, Deputy Attorney General, Office of the Attorney General for the State of Kansas, Henry V. Nickel, George P. Sibley, III, James D. “Buddy” Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Megan K. Terrell, Chief, Environmental Section, Herman Robinson, Jackie Marie Scott Marve, Deidra L. Johnson, Kathy M. Wright, Donald James Trahan, David Richard Taggart, Jeffrey Winston Price, John Joseph Bursch, Solicitor General, Office of the Attorney General for the State of Michigan, Neil David Gordon, Assistant Attorney General, Sean Peter Manning, Chief, Environmental, Natural Resources, and Agriculture Division, Harold Edward Pizzetta, III, Special Attorney, Office of the Attorney General for the State of Mississippi, Jon Cumberland Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel, Dale T. Vitale, Gregg H. Bachmann, and Chris Kim, Assistant Attorneys General, Office of the Attorney General for the State of Ohio, Thomas Bates, Chief, Public Protection Unit, Office of the Attorney General for the State of Oklahoma, Patrick Wyrick, Solicitor General, P. Clayton Eubanks, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Assistant Deputy Attorney General, Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, E. Duncan Getchell, Jr., Solicitor General, and Thomas James Dawson, Assistant Attorney General, Wisconsin Department of Justice.

Peter D. Keisler argued the cause for Non–Governmental Petitioners. With him on the briefs were Roger R. Martella, Jr., C. Frederick Beckner III, Timothy K. Webster, F. William Brownell, Gregory G. Garre, Claudia M. O'Brien, Lori Alvino McGill, Jessica E. Phillips, Katherine I. Twomey, Stacey VanBelleghem, Janet J. Henry, Steven G. McKinney, Terese T. Wyly, William M. Bumpers, Joshua B. Frank, Megan H. Berge, P. Stephen Gidiere, III, Richard Alonso, Jeffrey R. Holmstead, Gary C. Rikard, Robert J. Alessi, Chuck D'Wayne Barlow, Peter P. Garam, Kyra Marie Fleming, Richard G. Stoll, Brian H. Potts, Julia L. German, Robert A. Manning, Joseph A. Brown, Mohammad O. Jazil, Eric J. Murdock, Andrea Bear Field, Norman W. Fichthorn, E. Carter Chandler Clements, James S. Alves, Gary V. Perko, William L. Wehrum, Jr., David M. Flannery, Gale Lea Rubrecht, Maureen N. Harbourt,

[696 F.3d 10]

Tokesha M. Collins, Bart E. Cassidy, Katherine L. Vaccaro, Diana A. Silva, William F. Lane, Jordan Hemaidan, Todd Palmer, Douglas E. Cloud, David Meezan, Christopher Max Zygmont, Matthew J. Splitek, Gary M. Broadbent, Michael O. McKown, Terry Russell Yellig, Dennis Lane, Karl R. Moor, Margaret Claiborne Campbell, Byron W. Kirkpatrick, Hahnah Williams, Peter S. Glaser, Tameka M. Collier, Grant F. Crandall, Arthur Traynor, III, Eugene M. Trisko, Jeffrey L. Landsman, Vincent M. Mele, Elizabeth P. Papez, John M. Holloway III, Elizabeth C. Williamson, and Ann M. Seha.


Michael J. Nasi, Shannon L. Goessling, and Douglas A. Henderson were on the brief for intervenor San Miguel Electric Cooperative and amici Industrial Energy Consumers of America, et al., in support of petitioners. Robert M. Cohan entered an appearance.

Norman L. Rave, Jr., David S. Gualtieri, and Jon M. Lipshultz, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the briefs were Jessica O'Donnell, Sonja Rodman, and Stephanie Hogan, Attorneys.

Simon Heller, Assistant Solicitor General, Office of the Attorney General for the State of New York, argued the cause for State/City Respondent–Intervenors. With him on the brief were Eric T. Schneiderman, Attorney General, Barbara D. Underwood, Solicitor General, Andrew G. Frank and Michael J. Myers, Assistant Attorneys General, Benna R. Solomon, James B. Dougherty, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Mary E. Raivel, Assistant Attorney General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Martha Coakley, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Frederick D. Augenstern, Assistant Attorney General, Scott J. Schwarz, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea J. Schwartz, Assistant Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Assistant Attorney General, Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Amy E. McDonnell, Deputy General Counsel, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte, Scott N. Koschwitz, and Matthew I. Levine, Assistant Attorneys General, William R. Phelan, Jr., Roy Cooper, Attorney General, Office of the Attorney General for the State of North Carolina, James C. Gulick, Senior Deputy Attorney General, Marc Bernstein and J. Allen Jernigan, Special Deputies Attorney General, and Christopher King. William J. Moore, III entered an appearance.

Brendan K. Collins argued the cause for Industry Respondent–Intervenors. With him on the brief were Robert B. McKinstry, Jr. and James W. Rubin.

Sean H. Donahue argued the cause for Public Health Respondent–Intervenors. With him on the brief were David T. Lifland, Vickie L. Patton, George Hays, Josh Stebbins, John Walke, and David Marshall. Ann Brewster Weeks entered an appearance.

Before: ROGERS, GRIFFITH, and KAVANAUGH, Circuit Judges.

[696 F.3d 11]



Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge GRIFFITH joins.

Dissenting opinion filed by Circuit Judge ROGERS.


KAVANAUGH, Circuit Judge:

Some emissions of air pollutants affect air quality in the States where the pollutants are emitted. Some emissions of air pollutants travel across State boundaries and affect air quality in downwind States. To deal with that complex regulatory challenge, Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.

In addition, and of primary relevance here, upwind States must prevent sources within their borders from emitting federally determined “amounts” of pollution that travel across State lines and “contribute significantly” to a downwind State's “nonattainment” of federal air quality standards. That requirement is sometimes called the “good neighbor” provision.

In August 2011, to implement the statutory good neighbor requirement, EPA promulgated the rule at issue in this case, the Transport Rule, also known as the Cross–State Air Pollution Rule. The Transport Rule defines emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. The Rule limits emissions from upwind States' coal- and natural gas-fired power plants, among other sources. Those power plants generate the majority of electricity used in the United States, but they also emit pollutants that affect air quality. The Transport Rule targets two of those pollutants, sulfur dioxide (SO2) and nitrogen oxides (NOx).

Various States, local governments, industry groups, and labor organizations have petitioned for review of the Transport Rule. Although the facts here are complicated, the legal principles that govern this case are straightforward: Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress...

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29 practice notes
  • State v. Envtl. Prot. Agency, Nos. 10–1425
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 26, 2013
    ...promulgated under this part, to prevent significant deterioration of air quality in each region”); EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 28 (D.C.Cir.2012) (Clean Air Act “reserves the first-implementer role for the States”). It would make no sense for the Clean Air Act to set ......
  • State v. Envtl. Prot. Agency, No. 16-1406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 2019
    ...various parties brought a challenge to that rule. We initially vacated the 938 F.3d 312 rule, see EME Homer City Generation, L.P. v. EPA , 696 F.3d 7 (D.C. Cir. 2012) (" EME Homer I "), but the Supreme Court reversed our decision and upheld the rule in its entirety, although it left open th......
  • United States v. EME Homer City Generation, L.P., Nos. 11-4406
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 21, 2013
    ..."choose which individual sources within [their borders] must reduce emissions, and by how much." EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 13 (D.C. Cir. 2012). For instance, a state "may decide to impose different emissions limits on individual coal-burning power plants, natural ga......
  • U.S. Commonwealth v. Eme Homer City Generation, L.P., Nos. 11–4406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2013
    ...“choose which individual sources within [their borders] must reduce emissions, and by how much.” EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 13 (D.C.Cir.2012). For instance, a state “may decide to impose different emissions limits on individual coal-burning power plants, natural gas-......
  • Request a trial to view additional results
24 cases
  • State v. Envtl. Prot. Agency, Nos. 10–1425
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 26, 2013
    ...promulgated under this part, to prevent significant deterioration of air quality in each region”); EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 28 (D.C.Cir.2012) (Clean Air Act “reserves the first-implementer role for the States”). It would make no sense for the Clean Air Act to set ......
  • State v. Envtl. Prot. Agency, No. 16-1406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 2019
    ...various parties brought a challenge to that rule. We initially vacated the 938 F.3d 312 rule, see EME Homer City Generation, L.P. v. EPA , 696 F.3d 7 (D.C. Cir. 2012) (" EME Homer I "), but the Supreme Court reversed our decision and upheld the rule in its entirety, although it left open th......
  • United States v. EME Homer City Generation, L.P., Nos. 11-4406
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 21, 2013
    ..."choose which individual sources within [their borders] must reduce emissions, and by how much." EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 13 (D.C. Cir. 2012). For instance, a state "may decide to impose different emissions limits on individual coal-burning power plants, natural ga......
  • U.S. Commonwealth v. Eme Homer City Generation, L.P., Nos. 11–4406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2013
    ...“choose which individual sources within [their borders] must reduce emissions, and by how much.” EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 13 (D.C.Cir.2012). For instance, a state “may decide to impose different emissions limits on individual coal-burning power plants, natural gas-......
  • Request a trial to view additional results
5 books & journal articles
  • EPA's Fine Particulate Air Pollution Control Program
    • United States
    • Environmental Law Reporter Nbr. 44-11, November 2014
    • November 1, 2014
    ...Id. 203. Id. at 48249-51. 204. 76 Fed. Reg. at 48256. 205. Id. at 48259. 206. Id. at 48249. 207. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 37, 42 ELR 20177 (D.C. Cir. 2012), rev’d , 134 S. Ct. 1584 (2014). 208. Id. at 32. to issue FIPs could be triggered. he court also held that t......
  • A 'Cost-Benefit State'? Reports of Its Birth Have Been Greatly Exaggerated
    • United States
    • Environmental Law Reporter Nbr. 46-11, November 2016
    • November 1, 2016
    ...City , 134 S. Ct. at 1607. 185. Id . at 1597. 186. Id . at 1596-97. 187. Id . 188. EME Homer City Generation v. Environmental Prot. Agency, 696 F.3d 7 (D.C. Cir. 2014). Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-......
  • Judge Garland's Environmental Decisions
    • United States
    • Environmental Law Reporter Nbr. 46-7, July 2016
    • July 1, 2016
    ...2013); *Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 42 ELR 20141 (D.C. Cir. 2012); *EME Homer City Generation, LP v. EPA, 696 F.3d 7, 42 ELR 20177 (D.C. Cir. 2012); New Jersey v. EPA, 517 F.3d 574, 38 ELR 20046 (D.C. Cir. 2008); North Carolina v. EPA, 531 F.3d 896, 38 ELR 201......
  • The Impact of Justice Kennedy and the Effect of His Retirement
    • United States
    • Environmental Law Reporter Nbr. 48-10, October 2018
    • October 1, 2018
    ...1584, 44 ELR 20094 (2014).19. North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) (per curiam).20. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org,......
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