That’s fundamentally distinct

EPA's claim of authority rests entirely on an improper statutory interpretation that ignores the text of the United States Code and the role of the House Office of the Law Revision Counsel. EPA tries in vain to circumvent the Code, but fails to show that it contains any errors or is otherwise inconsistent or in conflict with the Statutes at Large. EPA further offers nothing in the text, structure, or legislative history of the Act that would permit it to ignore the clear and sensible limitation on its authority embodied in Section 111(d).

EPA's reliance on illusory authority is inflicting real and permanent injury on Murray Energy and its numerous supporting intervenors. This Court can and should stop EPA's ultra vires actions now.

*3 ARGUMENT

I. Murray Energy Has Standing to Seek an Extraordinary Writ and Challenge EPA's Legal Conclusion.

EPA's arguments that Murray Energy does not have Article III standing ring hollow. EPA essentially asks this Court to believe that its rulemaking, a key piece of the President's Clean Power Plan, is not really about reducing the use of coal at power plants. Yet, in Secretary of State John Kerry's own words just two months ago, while referring specifically to existing power plants and EPA's proposed rule, “we're going to take a bunch of them out of commission.”1

EPA tries to defeat Murray Energy's standing by repeating the mantra that the rulemaking is a proposal. Even if this were a barrier to challenging the contents of a proposed rule, it is irrelevant to Murray Energy's standing to bring the petition for review of EPA's legal conclusion, which is final action. It is also no barrier to Murray Energy's standing to seek an extraordinary writ under the All Writs Act.2 While Article III “requires more than the possibility of potentially adverse regulation,” EPA Br. 12 (quoting Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1325 (D.C. Cir. 2013)) (emphasis by EPA), there is *4 nothing merely “possible” about the future here. There is no future version of the proposed rule, no revision of the various “building blocks,” no change in detail, and no state implementation alternative that will not result - and is not intended to result - in reduced coal use. Curtailment of coal-fired power plant production, conversion to natural gas, increased use of wind or solar energy, energy conservation, and efficiency improvements all mean reduced coal demand. Thus, Murray Energy's claim is neither “too speculative” nor “based on predicting the substantive content of one possible final outcome of the rulemaking.” EPA Br. 12. EPA's own modeling projects a 25 to 27 percent reduction in coal use to generate electricity by 2020 and a 30 to 32 percent reduction by 2030. While EPA now tries to distance itself from its own modeling, id. at 12-13, it cannot seriously contend that coal will be unaffected by its rulemaking.

Further ignoring the serious real-world impacts of its regulation, EPA apparently believes that, as a coal producer that supplies coal to power plants, Murray Energy would not have standing to challenge any final power plant rule because it is not the direct “object” of the rule. See id. at 14. Even if a petitioner who “is not himself the object of the government action or inaction he challenges” faces a somewhat higher burden to establish standing, see id. at 11 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), coal producers are an “object” of EPA's action when the very purpose of that action is to substantially reduce the use of coal.

*5 Moreover, EPA ignores that Murray Energy and its supporting intervenors have identified impacts occurring right now due to the proposed rulemaking. As a result, EPA's reliance on cases such as Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013), Chamber of Commerce of U.S. v. EPA, 642 F.3d 192 (D.C. Cir. 2011), and Lujan for the proposition that Murray Energy faces a heightened burden to establish standing because (according to EPA) only the expectation of future injury is asserted, see EPA Br. 10-11, is misplaced.3 This case is no different from Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153-55 (2010) (standing conferred by costs incurred in planning for future risks caused by proposed agency action). The mere pendency of the proposed rule causes immediate harm because coal producers and utility customers must make - and are making - current business decisions now. EPA's pursuit of this rulemaking continues to pressure states and capital markets to dismantle Murray Energy's customer base.

*6 II. A Writ Is Available to Stop This Unlawful Agency Proceeding.

This Court has held that “[n]onfinal agency actions are interlocutorily reviewable in extraordinary circumstances - where, for example, they are in clear violation of law.” Aluminum Co. of Am. v. United States, 790 F.2d 938, 942 (D.C. Cir. 1986). EPA argues the only “extraordinary circumstances” in which this Court can issue a writ to an agency are those where an agency has “unreasonably delayed taking action required of it by law.” EPA Br. 30 (quotation omitted), but this argument is inconsistent with both the text of the All Writs Act and this Court's precedent. 28 U.S.C. § 1651(a); Aluminum Co., 790 F.2d at 942; In re GTE Serv. Corp., 762 F.2d 1024, 1027 (D.C. Cir. 1985) (“claims of unreasonable agency delay represent one narrow class of cases” in which All Writs Act relief is available) (emphasis added).

Even EPA acknowledges, as it must, that this Court can issue a writ to correct “a lower court's exercise of jurisdiction it lacks,” and that this Court can issue a supervisory writ to correct a lower court's error. EPA Br. 31. But EPA argues this Court may not issue these same writs to correct an agency's exercise of authority it lacks, or to issue a supervisory writ to address an agency's error. Id. EPA offers no basis for this distinction. With original jurisdiction over this subject matter, this Court must have equal authority to issue writs to EPA with respect to its actions under the Clean Air Act as this Court has to issue writs to a district court.

EPA cites the familiar proposition that an All Writs Act claim may not be a mere substitute for appeal. Id. at 30. This is so because there is no *7 extraordinary circumstance justifying a writ when an ordinary appeal will do. Writs, however, may be issued whenever they are “necessary or appropriate” and “agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). When there is a showing that the “ordinary mode of relief is inadequate,” this Court has authority to issue a writ to an agency whose actions are within the subject matter of this Court's original jurisdiction. In re GTE Serv. Corp., 762 at 1027.4

The availability of All Writs Act relief cannot be determined by rigid formulas. The Supreme Court has noted that while writs are rarely granted, they can be in the right case. That is why the Supreme Court has “answered the question as to the availability of mandamus in situations such as this with the refrain: ‘What[,] never? Well, hardly ever!” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam) (referencing Gilbert & Sullivan's H.M.S. Pinafore).

Even though writs of prohibition are “hardly ever” issued, Murray Energy has made the requisite showing why the circumstances here qualify, based on the uniqueness of the present case as well as by analogy to several instructive decisions. EPA does not dispute that the circumstances of Leedom v. Kyne, 358 U.S. 184 (1958), are present here because EPA acts beyond its authority. *8 As for McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), EPA unconvincingly claims that “vigorous protests from foreign governments” are a more “compelling justification for prompt judicial resolution of the controversy” than the protests of the 14 sovereign states in this case. Id. at 17. And EPA fails to dispute the inadequacy of the ordinary mode of relief in this case. Accordingly, the sufficient showing of extraordinary circumstances remains unrebutted, and the extraordinary writ is available.

*9 III. EPA's Legal Conclusion Is Reviewable Final Agency Action.

EPA chiefly argues that “proposed requirements” are non-reviewable. EPA Br. 34. This is irrelevant. Murray Energy is not challenging EPA's proposed requirements. It is challenging EPA's legal conclusion that it has authority to propose any requirements at all. EPA not only published this conclusion in the Federal Register in a preamble signed by the Administrator, it has acted upon it to the detriment of Murray Energy, hundreds of sources, and millions of consumers. EPA cannot now shield its decision from review simply by putting it in a preamble.

It is true that Section 307 of the Clean Air Act provides several examples of promulgated rules that are subject to judicial review, but EPA goes too far when it argues that these examples show that Congress intended to prevent judicial review of other agency actions. 42 U.S.C. § 7607(b)(1). Section 307 of the Act expressly provides for review of not just the listed promulgated rules, but also “any other final action of the Administrator” under the Act. Moreover, the Supreme Court has already rejected EPA's argument, holding that “nothing in the legislative history” supports using the examples to narrow the scope of judicial review available under the Clean Air Act, and that “the phrase, ‘any other final action,’ in the absence of legislative history to the contrary, must be construed to mean exactly what it says, namely, any other final action.” Harrison v. PPG Indus., Inc., 446 U.S. 578, 589 (1980).

The Clean Air Act does not require that an agency's actions take any specific form to be considered “final.” As the Supreme Court held in *10 Whitman v. American Trucking Associations, Inc.: “The bite in the phrase ‘final action’ ... is not in the word ‘action,’ which is meant to cover comprehensively every manner in which an agency may exercise its power. It is rather in the word ‘final,’ which requires that the action under review ‘mark the consummation of the agency's decisionmaking process.’ ” 531 U.S. 457, 478 (2001) (internal citations omitted). No matter the form EPA chooses, judicial review is available as long as the agency has “ ‘rendered its last word on the matter’ in question.” Id. (quoting Harrison, 446 U.S. at 586). Indeed, reviewable statutory interpretations can come in many forms, including guidance documents,5 opinion letters,6 administrative orders,7 and regulatory preambles. In Whitman itself, the Supreme Court found final an “implementation policy” published in a preamble. See Whitman, 531 U.S. at 477-79.

EPA's only argument is that it has offered to accept comments on “all aspects” of the proposed rule and “may modify its final action in any number of ways.” EPA Br. 23. This does not affect the finality of EPA's analysis. The core question is whether the agency has “adopted the interpretation” at issue. Whitman, 531 U.S. at 479. EPA clearly has. EPA's vague argument now that it might change its mind is small comfort to those who must currently deal with EPA's decision to construe away a legal safeguard that has been in place for a quarter century. As this Court held in Appalachian Power Co. v. EPA:

*11 EPA may think that because the Guidance, in all its particulars, is subject to change, it is not binding and therefore not final action. There are suggestions in its brief to this effect. But all laws are subject to change. Even that most enduring of documents, the Constitution of the United States, may be amended from time to time. The fact that a law may be altered in the future has nothing to do with whether it is subject to judicial review at the moment.

208 F.3d at 1022 (internal citations omitted).

EPA also asks this Court to ignore the “absence of hedge-words” in the preamble. EPA Br. 24. But what the agency says and what the agency does are the very touchstones of finality. As Justice Scalia held in Whitman, finality does not depend on whether the agency has “dressed its decision with the conventional procedural accoutrements of finality.” Whitman, 531 U.S. at 479. Rather, it is EPA's “own behavior” that shows that EPA's decisionmaking process is concluded. Id.; see also Appalachian Power, 208 F.3d at 1022.

In this case, EPA's legal conclusion is also presumed final, since it was signed by the Administrator. See National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971). Rather than producing evidence that rebuts this presumption, EPA tries to distinguish and minimize Shultz. Nothing in the Supreme Court's later decision in Bennett v. Spear, 520 U.S. 154 (1997), however, “erodes the force of” Shultz, and EPA has provided no “cogent basis favoring departure from” this Court's decision. Brewster v. Comm'r, 607 F.2d 1369, 1374 (D.C. Cir. 1979). EPA also cannot distinguish Shultz on the basis that it addressed an “interpretive ruling [].” EPA Br. 21. Murray Energy's challenge is also to an interpretation - EPA's interpretation of its authority under Section 111(d). Nor can EPA distinguish Shultz on its facts, since the *12 petitioner in Shultz sought judicial review under the Administrative Procedure Act, which the Supreme Court has held contains the same finality requirement as the Clean Air Act. See Whitman, 531 U.S. at 478.8

EPA next tries to avoid judicial review by claiming that no legal consequences flow from its proposed rule. EPA Br. 25. This second part of the two-part test used in Bennett, 520 U.S. at 177-78, however, applies only “[a]s a general matter.” When an agency's legal conclusions are under review, there is no need for this part of the analysis. See Whitman, 531 U.S. at 477-479 (finding finality based only on the consummation of EPA's decisionmaking process). In addition, even if this analysis were required, legal consequences clearly flow from EPA's final decision to convert a limited and seldom-used provision of the Clean Air Act into a font of authority to impose regulations that have been prohibited for a quarter-century. EPA's conclusion determines the rights and obligations of the nation's coal-fired power plants, and their suppliers and customers; Murray Energy and the supporting intervenors have amply described the present-day consequences of EPA's decision. Moreover, under EPA's legal conclusion, every source-category that is currently regulated under *13 Section 112 may now be subjected to regulation under Section 111(d). Even EPA's own obligations have changed, as it may now be subjected to citizen suits for failure to promulgate Section 111(d) standards.

Finally, EPA's “ripeness” arguments are off the mark. See EPA Br. 26. EPA does nothing more than cite a handful of cases where courts found that challenges were unripe when the contents of a later rulemaking might render moot or otherwise alter the legal issues before the court. Nothing before this Court will change based on the contents of EPA's final rule.

Just yesterday, EPA Administrator Gina McCarthy testified unequivocally and under oath before Congress, and in direct response to a question about this case, that EPA has never considered not finalizing the rule. The Fiscal Year 2016 EPA Budget: Hearing Before the H. Comm. on Energy & Commerce at 2:03 (Feb. 25, 2015), available at http://www.c-span.org/ video/?324543-1/administrator-gina-mccarthy-testimony-epa-fiscal-year- 2016budget. To the contrary, she is “confident we can get this done” and, months after the close of the comment period, has received no information “that would indicate we can't do so.” Id. Whatever may be argued by EPA's lawyers, EPA will without question proceed with this rulemaking having reached a final conclusion that it can.

*14 IV. This Court Must Defer to the Reasonable Determination of the House Office of the Law Revision Counsel.

EPA argues that the Office's determination of the text of Section 111(d) presented in the United States Code is entitled to no deference, see EPA Br. 46-49, refusing to acknowledge that Congress provided that the contents of the Code “establish prima facie the laws of the United States.” 1 U.S.C. § 204(a). Instead of offering any interpretation of this statutory provision, EPA relies on a footnote in United States v. Welden, 377 U.S. 95 (1964), for the remarkable proposition that the Code “is entitled to ‘no weight.’ ” Id. at 99 n.4. EPA neglects to mention that the Welden footnote dealt only with the “change of arrangement” of statutes and merely applied the rule that even when Congress changes the arrangement of statutes, “it will not be inferred that Congress ... intended to change their effect unless such intention is clearly expressed.” Id. (quotation omitted).

EPA also states that “the text in the Statutes at Large controls” over the Code when “there [is] a substantive difference between the two.” EPA Br. 47. Instead of identifying any “substantive difference,” EPA relies upon a failed conforming amendment that the Office correctly determined could not be executed because it did not have priority over an earlier substantive amendment in the same bill. EPA refers to the Section 302(a) conforming amendment as “unexecuted text” and demands that it be “considered and given effect.” EPA Br. 48 n.23. But it has been “considered” by the Office and found to have no effect because it did not have execution priority. Given that a *15 separate provision in the same bill deletes the text it would amend, there is no effect for it to have. Even if it had priority over the earlier substantive Section 108(g) amendment, the result would be the same: After Section 302(a) conformed the cross-reference, the cross-reference would then be deleted by Section 108(g) and replaced with the language that is in the Code. Thus, the text of Section 111(d) in the Code is exactly the same as it would be if the two amendments were executed in reverse order.

EPA demands authority to second-guess the determination made by an expert, nonpartisan legislative agency so that EPA can reach a different result by ignoring the rule that is routinely applied by the Office, and is consistent with Congress's drafting manuals, that amendments are to be executed in order. EPA would instead execute amendments in reverse order, see EPA Br. 48 n.22,9 or alternatively refuse to execute an earlier amendment whenever EPA finds a later amendment would fail as a result, so both amendments fail. EPA Br. 53. What EPA would do is irrelevant. The task of executing amendments is the job of the Office, not EPA.

In justifying its request to supersede the Office's determination, EPA says its rival “is not a ‘legislative agency’ ” because it does not “make law.”10 *16 EPA Br. 47. Yet the Office is directed by the Law Revision Counsel who is appointed by and serves at the pleasure of the Speaker.11 Accordingly, the Law Revision Counsel and by extension the Office he directs are “subservient” to Congress. Bowsher v. Synar, 478 U.S. 714, 730 (1986) ( “In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.”). Moreover, Congress has rules that permit Members to raise “questions of privilege” to countermand determinations of its agents that are inconsistent with the views of Congress. See Rule Ix, Rules of the House of Representatives, 113th Cong. (2013); see, e.g., H.R. Res. 362, 101st Cong. (1990); 136 Cong. Rec. 4997, 5005-06 (199) (question of privilege used to countermand determination of House Bipartisan Legal Advisory Group). Here, Members of Congress received the second supplement to the 1988 edition of the United States Code early in 1991 containing the Office's determination. Murray Energy has found no evidence that any Member challenged the determination using a question of privilege or by other means.

Additionally, the Office assists in the one-time process of repeal and reenactment of the provisions of each title of the Code, referred to as “positive law codification.” 2 U.S.C. § 285b. In the positive law codification of the Clean Air Act recently completed by the Office and submitted to Congress, the *17 text prohibits Section 111(d) mandates for “any air pollutant ... emitted from a source category that is regulated under section 211112 of this title.” Office of the Law Revision Counsel, United States House of Representatives, Draft 55 U.S.C. § 211111(d).12 In preparing positive law codification, the Office “actively seeks input from Federal agencies, congressional committees, and others with expertise in the area of law.” Office of the Law Revision Counsel, United States House of Representatives, Positive Law Codification in the United States Code at 3. The Office prepared a document detailing changes and corrections that it recommended, and none were made for Section 111(d). Law Revision Counsel, Discussion Draft, Explanation of H.R. _____, to Enact Certain Laws Relating to the Environment as Title 55, United States Code, “Environment” (2014), available at http://uscode.house.gov/ codification/t55/exp.pdf.

The only circumstances justifying a departure from the text of the Code are those where the Office's determination is plainly inconsistent with the Statutes at Large or is unreasonable. Neither circumstance is present here. The Office duly executed an important substantive amendment rather than refusing to do so because later in the same bill Congress included a superfluous conforming amendment. For EPA to step in 25 years later in order to second-guess the Office unduly interferes with the functioning of the legislative process.