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(Hartford, CT) -- Attorney General William Tong today announced a $230 million multistate settlement with Mallinckrodt regarding allegations the company knowingly underpaid Medicaid rebates for its drug H.P. Acthar Gel. Connecticut is joined in the settlement by 49 other states, Washington, D.C., Puerto Rico, and the federal government.

“Mallinckrodt raised its Acthar price and lied about the gel’s status as a ‘new drug’ to avoid paying millions of dollars in rebates to state Medicaid programs. Acting in coordination with our multistate partners and the federal government, we are now holding Mallinckrodt accountable for those false claims and forcing them to pay $230 million,” said Attorney General Tong.

This settlement results from a whistleblower lawsuit originally filed in the United States District Court for the District of Massachusetts. The federal government, twenty-six states, the District of Columbia, and Puerto Rico intervened in the civil action in 2020. The settlement, which is based on Mallinckrodt’s financial condition, required final approval of the U.S. Bankruptcy Court for the District of Delaware, which approved the settlement on March 2, 2022.

(Hartford, CT) — Attorney General William Tong today announced a $300 Million multistate settlement with Indivior plc and Indivior Inc. to settle allegations that Indivior falsely and aggressively marketed and otherwise promoted the drug Suboxone, resulting in improper expenditures of state Medicaid funds.

“Indivior knowingly promoted the sale of suboxone for unsafe and unnecessary purposes, reaping undue profits from states and the federal government while endangering the lives of countless individuals. This agreement will return $7.9 million back to Connecticut"s Medicaid program, as well as $200,000 for the Department of Social Services’ state-funded programs. This settlement sends a strong message that states across the nation are united in taking aggressive action against those who fraudulently and callously contributed to the opioid epidemic,"said Attorney General William Tong.

“This national settlement, bringing over $8 million to Connecticut, is another reminder that companies and providers that take advantage of public health programs and put enrollees at risk will be met with strong enforcement action. I join Attorney General Tong and Chief State’s Attorney Colangelo in welcoming this important result for program integrity, enrollees and taxpayers,” said Deidre S. Gifford, Department of Social Services Commissioner and Acting Department of Public Health Commissioner.

Suboxone is a drug product approved for use by recovering opioid addicts to avoid or reduce withdrawal symptoms while they undergo treatment. Suboxone and its active ingredient, buprenorphine, are powerful and addictive opioids. The settlement resolves allegations that, from 2010 through 2015, Indivior, directly or through its subsidiaries:

The civil settlement resolves the claims against Indivior brought in six qui tam lawsuits pending in federal courts in the Western District of Virginia and the District of New Jersey.

Attorney General William Tong is filing suit in Hartford Superior Court against ExxonMobil, considered the grandaddy of the companies now accused of knowing for decades their products contributed to the emissions that cause global warming and climate change, but hiding it from the public.

“ExxonMobil sold oil and gas, but it also sold lies about climate science. ExxonMobil knew that continuing to burn fossil fuels would have a significant impact on the environment, public health and our economy. Yet it chose to deceive the public,” Tong said.

Connecticut is suing under the Connecticut Unfair Trade Practices Act, the law the state used to make a similar successful claim against the tobacco industry. It alleges an ongoing, systematic campaign of lies and deception. The three-year statute of limitations for private actions under the law does not apply to the state government. That will allow the attorney general to access documents going back to the 1950s that some previous lawsuits may not have been able to use.

Tong announced the lawsuit on a deck overlooking New Haven Harbor, a fuel tank farm across the water forming a backdrop. He was joined by officials in the administration of Gov. Ned Lamont, whom Tong says is “150%” in support.

Documents detailing Big Oil’s understanding of the industry’s role in climate change go back decades. They were first shown to exist in 2015 in stories by Inside Climate News and the Los Angeles Times. Tong said that his case “draws heavily from Exxon’s and Mobil’s own historical internal memos, which plainly convey the companies’ firm understanding of the connection between fossil fuel consumption and climate change.”

Tong and the head of his environmental unit, Matthew Levin, said the lawsuit was based on evidence already in the public record, but they declined to cite specific sources. Tong expects they are only “the top of the iceberg” and pre-trial discovery will uncover more evidence.

Since 2015, nearly two-dozen lawsuits have been filed by a few states and a number of counties and cities, with another dozen states — including Connecticut — supporting some of those suits. The most recent lawsuit was filed by Hoboken, N.J. earlier this month.

“We tried to think long and hard about what our best and most impactful contribution would be,” Tong said. “And what we settled on was a single defendant with a very simple claim: Exxon knew, and they lied.”

Tong’s interest in applying the big tobacco litigation blueprint to big oil and climate change was evident from his first months in office, when he told the CT Mirror that he was already thinking about it.

“There was no more powerful industry than tobacco,” he said. “If anybody thought a merry band of state attorneys general would fundamentally change the face of the worst public health crisis in the history of this nation as lawyered-up and well-resourced as they were, the prospects for success were pretty dim. And they did it.”

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 8, 2020 Decided January 19, 2021 No. 19-1140 AMERICAN LUNG ASSOCIATION AND AMERICAN PUBLIC HEALTH ASSOCIATION, PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND ANDREW WHEELER, ADMINISTRATOR, RESPONDENTS AEP GENERATING COMPANY, ET AL., INTERVENORS Consolidated with 19-1165, 19-1166, 19-1173, 19-1175, 19-1176, 19-1177, 19-1179, 19-1185, 19-1186, 19-1187, 19-1188 On Petitions for Review of a Final Action of the Environmental Protection Agency Steven C. Wu, Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the cause for the State and Municipal petitioners and intervenor Nevada. 2 With him on the briefs were Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Matthew W. Grieco, Assistant Solicitor General, Michael J. Myers, Senior Counsel, Andrew G. Frank, Assistant Attorney General of Counsel, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, David A. Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener, M. Elaine Meckenstock, Timothy E. Sullivan, Elizabeth B. Rumsey, and Theodore A.B. McCombs, Deputy Attorneys General, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz, Assistant Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Valerie S. Edge, Deputy Attorney General, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, Eric R. Olson, Solicitor General, Robyn L. Wille, Senior Assistant Attorney General, Clare E. Connors, Attorney General, Office of the Attorney General for the State of Hawaii, William F. Cooper, Deputy Attorney General, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Laura E. Jensen, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Joshua M. Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog and David S. Frankel, Special Assistant Attorneys General, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Gillian E. Wener, Assistant Attorney General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Peter N. Surdo, Special Assistant Attorney 3 General, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of Nevada, Heidi Parry Stern, Solicitor General, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Lisa J. Morelli, Deputy Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Chief Deputy Attorney General, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Asher Spiller, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick, Special Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Ann R. Johnston, Senior Deputy Attorney General, Aimee D. Thomson, Deputy Attorney General, Peter F. Neronha, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Mark Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Jr., Senior Assistant Attorney General and Chief, Environmental Section, Caitlin Colleen Graham O=Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Christopher H. Reitz and Emily C. Nelson, Assistant Attorneys General, Joshua L. Kaul, Attorney General, Office of the Attorney General for the State of Wisconsin, Gabe Johnson-Karp, Assistant Attorney General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Tom Carr, City Attorney, Office of the City 4 Attorney for the City of Boulder, Debra S. Kalish, Senior Counsel, Mark A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel, Kristin M. Bronson, City Attorney, Office of the City Attorney for the City and County of Denver, Lindsay S. Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney, Office of the City Attorney for the City of Los Angeles, Michael J. Bostrom, Assistant City Attorney, James E. Johnson, Corporation Counsel, New York City Law Department, Christopher G. King, Senior Counsel, Marcel S. Pratt, City Solicitor, City of Philadelphia Law Department, Scott J. Schwarz and Patrick K. O’Neill, Divisional Deputy City Solicitors, and Thomas F. Pepe, City Attorney, City of South Miami. Morgan A. Costello and Brian M. Lusignan, Assistant Attorneys General, Office of the Attorney General for the State of New York, Gavin G. McGabe, Deputy Attorney General, Anne Minard, Special Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Cynthia M. Weisz, Assistant Attorney General, Office of the Attorney General for the State of Maryland, entered appearances. Kevin Poloncarz argued the cause for Power Company Petitioners. With him on the briefs were Donald L. Ristow and Jake Levine. Mark W. DeLaquil argued the cause for Coal Industry Petitioners. With him on the briefs were Shay Dvoretzky, Charles T. Wehland, Jeffery D. Ubersax, Robert D. Cheren, and Andrew Grossman. 5 Theodore Hadzi-Antich argued the cause for Robinson Enterprises Petitioners. With him on the briefs were Robert Henneke and Ryan D. Walters. Sean H. Donahue and Michael J. Myers argued the causes for Public Health and Environmental Petitioners. On the briefs were Ann Brewster Weeks, James P. Duffy, Susannah L. Weaver, Joanne Spalding, Andres Restrepo, Vera Pardee, Clare Lakewood, Howard M. Crystal, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David Doniger, Benjamin Longstreth, Melissa J. Lynch, Lucas May, Vickie L. Patton, Tomas Carbonell, Benjamin Levitan, Howard Learner, and Scott Strand. Alejandra Nunez entered an appearance. David M. Williamson argued the cause and filed the briefs for Biogenic Petitioners. Gene Grace, Jeff Dennis, and Rick Umoff were on the brief for petitioners American Wind Energy Association, et al. Theodore E. Lamm and Sean B. Hecht were on the brief for amicus curiae Thomas C. Jorling in support of petitioners. Gabriel Pacyniak, Brent Chapman, and Graciela Esquivel were on the brief for amici curiae the Coalition to Protect America=s National Parks and the National Parks Conservation Association in support of petitioners. Deborah A. Sivas and Matthew J. Sanders were on the brief for amici curiae Administrative Law Professors in support of petitioners. Hope M. Babcock was on the brief for amici curiae the American Thoracic Society, et al. in support of petitioners. 6 Richard L. Revesz and Jack Lienke were on the brief for amicus curiae the Institute for Policy Integrity at New York University School of Law in support of petitioners. Steph Tai was on the brief for amici curiae Climate Scientists in support of petitioners. Michael Burger and Collyn Peddie were on the brief for amici curiae the National League of Cities, et al. in support of petitioners. Keri R. Steffes was on the brief for amici curiae Faith Organizations in support of petitioners. Shaun A. Goho was on the brief for amici curiae Maximilian Auffhammer, et al. in support of petitioners. Ethan G. Shenkman and Stephen K. Wirth were on the brief for amici curiae Patagonia Works and Columbia Sportswear Company in support of petitioners. Mark Norman Templeton, Robert Adam Weinstock, Alexander Valdes, and Benjamin Nickerson were on the brief for amicus curiae Professor Michael Greenstone in support of petitioners. Nicole G. Berner and Renee M. Gerni were on the brief for amicus curiae the Service Employees International Union in support of petitioners. Elizabeth B. Wydra, and Brianne J. Gorod were on the brief for amici curiae Members of Congress in support of petitioners. 7 Jonas J. Monast was on the brief for amici curiae Energy Modelers in support of petitioners. Katherine Konschnik was on the brief for amici curiae Former Commissioners of the Federal Energy Regulatory Commission in support of petitioners. Michael Landis, Elizabeth S. Merritt, and Wyatt G. Sassman were on the brief for amici curiae Environment America and National Trust for Historic Preservation in support of petitioners. Cara A. Horowitz was on the brief for amici curiae Grid Experts in support of petitioners. Eric Alan Isaacson was on the brief for amici curiae U.S. Senators in support of petitioners. Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, U.S. Department of Justice, and Meghan E. Greenfield and Benjamin Carlisle, Attorneys, argued the causes for respondents. With them on the brief was Jeffrey Bossert Clark, Assistant Attorney General. Lindsay S. See, Solicitor General, Office of the Attorney General for the State of West Virginia, argued the cause for State and Industry intervenors in support of respondents regarding Affordable Clean Energy Rule. With her on the brief were Patrick Morrisey, Attorney General, Thomas T. Lampman, Assistant Solicitors General, Thomas A. Lorenzen, Elizabeth B. Dawson, Rae Cronmiller, Kevin G. Clarkson, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Alaska, Clyde Sniffen Jr., Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. 8 Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, Dylan L. Jacobs, Assistant Solicitor General, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. LaCour, Jr., Solicitor General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia, Andrew A. Pinson, Solicitor General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew Beshear, Governor, Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel, Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive Director, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, D. John Sauer, Solicitor General, Julie Marie Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Paul M. Seby, Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Justin D. Lavene, Assistant Attorney General, Dave Yost, Attorney General, Office of the Attorney General of the State of Ohio, Benjamin M. Flowers, Solicitor General, Cameron F. Simmons, Principal Assistant Attorney General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Mansinghani, Solicitor General, Jason R. Ravnsborg, Attorney General, Office of the Attorney 9 General for the State of South Dakota, Steven R. Blair, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Kyle D. Hawkins, Solicitor General, Sean Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Bridget Hill, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Todd E. Palmer, William D. Booth, Obianuju Okasi, Carroll W. McGuffey, III, Misha Tseytlin, C. Grady Moore, III, Julia Barber, F. William Brownell, Elbert Lin, Allison D. Wood, Scott A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven P. Lehotsky, Michael B. Schon, Emily Church Schilling, Kristina R. Van Bockern, David M. Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M. Smith, Janet J. Henry, Melissa Horne, Angela Jean Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak, Michael A. Zody, Jacob Santini, Robert D. Cheren, Mark W. DeLaquil, and Andrew M. Grossman. C. Frederick Beckner, III, James R. Bedell, Margaret C. Campbell, Erik D. Lange, and John D. Lazzaretti entered an appearance. James P. Duffy argued the cause for Public Health and Environmental Intervenors in support of respondents. With him on the brief were Ann Brewster Weeks, Sean H. Donahue, Susannah L. Weaver, Joanne Spalding, Andres Restrepo, Vera Pardee, Clare Lakewood, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David Doniger, Benjamin Longstreth, Melissa J. Lynch, Lucas May, Vickie L. Patton, Tomas Carbonell, Benjamin Levitan, Howard Learner, and Scott Strand. Letitia James, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers, Senior Counsel, Brian Lusignan, Assistant Attorney General of 10 Counsel, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Matthew W. Grieco, Assistant Solicitor General, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, David A. Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener, M. Elaine Meckenstock, Timothy E. Sullivan, Elizabeth B. Rumsey, and Theodore A.B. McCombs, Deputy Attorneys General, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz, Assistant Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Valerie S. Edge, Deputy Attorney General, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, Eric R. Olson, Solicitor General, Robyn L. Wille, Senior Assistant Attorney General, Clare E. Connors, Attorney General, Office of the Attorney General for the State of Hawaii, William F. Cooper, Deputy Attorney General, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Laura E. Jensen, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Joshua M. Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog and David S. Frankel, Special Assistant Attorneys General, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Gillian E. Wener, Assistant Attorney General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Peter N. Surdo, Special Assistant Attorney General, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of Nevada, Heidi Parry Stern, Solicitor General, Gurbir 11 S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Lisa J. Morelli, Deputy Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Chief Deputy Attorney General, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Asher Spiller, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick, Special Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Ann R. Johnston, Senior Deputy Attorney General, Aimee D. Thomson, Deputy Attorney General, Peter F. Neronha, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Mark Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Jr., Senior Assistant Attorney General and Chief, Environmental Section, Caitlin Colleen Graham O=Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Christopher H. Reitz and Emily C. Nelson, Assistant Attorneys General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Tom Carr, City Attorney, Office of the City Attorney for the City of Boulder, Debra S. Kalish, Senior Counsel, Mark A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel, Kristin M. Bronson, City Attorney, Office of the City 12 Attorney for the City and County of Denver, Lindsay S. Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney, Office of the City Attorney for the City of Los Angeles, Michael J. Bostrom, Assistant City Attorney, James E. Johnson, Corporation Counsel, New York City Law Department, Christopher G. King, Senior Counsel, Marcel S. Pratt, City Solicitor, City of Philadelphia Law Department, Scott J. Schwarz and Patrick K. O’Neill, Divisional Deputy City Solicitors, and Thomas F. Pepe, City Attorney, City of South Miami were on the brief for the State and Municipal Intervenors in support of respondents. Jeremiah Langston, Assistant Attorney General, Office of the Attorney General for the State of Montana, Stephen C. Meredith, Solicitor, Office of the Attorney General for the Commonwealth of Kentucky, Margaret I. Olson, Assistant Attorney General, Office of the Attorney General for the State of North Dakota, and Erik E. Petersen, Assistant Attorney General, Office of the Attorney General for the State of Wyoming, and Robert A. Wolf entered appearances. Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, Lindsay S. See, Solicitor General, Thomas T. Lampman, Assistant Solicitor General, Scott A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven P. Lehotsky, Michael B. Schon, Thomas A. Lorenzen, Elizabeth B. Dawson, Rae Cronmiller, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. LaCour, Jr., Solicitor General, Kevin G. Clarkson, Attorney General, Office of the Attorney General for the State of Alaska at the time the brief was filed, Clyde Sniffen, Jr., Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, Dylan L. Jacobs, Assistant Solicitor General, Christopher M. Carr, Attorney General, 13 Office of the Attorney General for the State of Georgia, Andrew A. Pinson, Solicitor General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew Beshear, Governor, Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel, Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive Director, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, D. John Sauer, Solicitor General, Julie Marie Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Paul M. Seby, Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Justin D. Lavene, Assistant Attorney General, Dave Yost, Attorney General, Office of the Attorney General of the State of Ohio, Benjamin M. Flowers, Solicitor General, Cameron F. Simmons, Principal Assistant Attorney General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Mansinghani, Solicitor General, Jason R. Ravnsborg, Attorney General, Office of the Attorney General for the State of South Dakota, Steven R. Blair, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General for 14 the State of Texas, Kyle D. Hawkins, Solicitor General, Sean Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Bridget Hill, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Todd E. Palmer, William D. Booth, Obianuju Okasi, Carroll W. McGuffey, III, Misha Tseytlin, C. Grady Moore, III, Julia Barber, F. William Brownell, Elbert Lin, Allison D. Wood, Emily Church Schilling, Kristina R. Van Bockern, David M. Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M. Smith, Janet J. Henry, Melissa Horne, Angela Jean Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak, Michael A. Zody, Jacob Santini, Robert D. Cheren, Mark W. DeLaquil, and Andrew M. Grossman were on the brief for State and Industry Intervenors in support of respondents regarding Clean Power Plan Repeal. Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, and Paul M. Seby, Special Assistant Attorney General, were on the brief for intervenor State of North Dakota in support of the respondents. Jerry Stouck entered an appearance. Thomas J. Ward, Megan H. Berge, and Jared R. Wigginton were on the brief for amicus curiae National Association of Builders in support of respondents. Before: MILLETT , PILLARD , and WALKER, Circuit Judges. Opinion for the Court filed PER CURIAM. Opinion concurring in part, concurring in the judgment in part, and dissenting in part filed by Circuit Judge WALKER. 15 TABLE OF C ONTENTS I. Background .........................................................................17 A. The Clean Air Act ..........................................................17 B. Electricity and Climate Change .....................................21 1. Electricity.....................................................................21 2. Climate Change and the Federal Government ..........24 C. The Clean Power Plan ....................................................29 D. The ACE Rule ................................................................32 1. Repeal of the Clean Power Plan .................................32 2. Best System of Emission Reduction ..........................33 3. Degree of Emission Limitation Achievable ..............36 4. Implementing Regulations..........................................38 E. Petitions for Review .......................................................38 F. Jurisdiction and Standard of Review .............................39 II. Section 7411 .......................................................................40 A. Statutory Context............................................................40 1. Text ..............................................................................46 2. Statutory History, Structure, and Purpose .................59 3. Compliance Measures .................................................71 B. The Major Questions Doctrine ......................................74 1. The EPA’s Regulatory Mandate ................................75 2. Best System of Emission Reduction ..........................80 C. Federalism .......................................................................92 III. The EPA’s Authority to Regulate Carbon Dioxide Emissions Under Section 7411 ..............................................98 A. The Coal Petitioners’ Challenges ..................................98 1. Endangerment Finding................................................99 2. Section 7411 and Section 7412’s Parallel Operation...................................................... 111 B. The Robinson Petitioners’ Challenges ....................... 132 IV. Amendments to the Implementing Regulations ...... 138 V. Vacatur and Remand .................................................... 146 VI. Conclusion ..................................................................... 147 16 As the Supreme Court recognized nearly fourteen years ago, climate change has been called “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U.S. 497, 505 (2007) (formatting modified). Soon thereafter, the United States government determined that greenhouse gas emissions are polluting our atmosphere and causing significant and harmful effects on the human environment. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (2009 Endangerment Finding), 74 Fed. Reg. 66,496, 66,497–66,499 (Dec. 15, 2009). And both Republican and Democratic administrations have agreed: Power plants burning fossil fuels like coal “are far and away” the largest stationary source of greenhouse gases and, indeed, their role in greenhouse gas emissions “dwarf[s] other categories[.]” EPA Br. 169; see also Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units (New Source Rule), 80 Fed. Reg. 64,510, 64,522 (Oct. 23, 2015) (fossil-fuel-fired power plants are “by far the largest emitters” of greenhouse gases). The question in this case is whether the Environmental Protection Agency (EPA) acted lawfully in adopting the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8, 2019), as a means of regulating power plants’ emissions of greenhouse gases. It did not. Although the EPA has the legal authority to adopt rules regulating those emissions, the central operative terms of the ACE Rule and the repeal of its predecessor rule, the Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015), hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act. In addition, the ACE Rule’s amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious. For those reasons, the ACE Rule is 17 vacated, and the record is remanded to the EPA for further proceedings consistent with this opinion. I. BACKGROUND A. T HE C LEAN AIR ACT In 1963, Congress passed the Clean Air Act, 42 U.S.C. § 7401 et seq., “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population[,]” id. § 7401(b)(1). Animating the Act was Congress’ finding that “growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles[] has resulted in mounting dangers to the public health and welfare[.]” Id. § 7401(a)(2). Section 111 of the Clean Air Act, which was added in 1970 and codified at 42 U.S.C. § 7411, directs the EPA to regulate any new and existing stationary sources of air pollutants that “cause[], or contribute[] significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A); see id. § 7411(d), (f) (providing that the EPA Administrator “shall” regulate existing and new sources of air pollution). A “stationary source” is a source of air pollution that cannot move, such as a power plant. See id. § 7411(a)(3) (defining “stationary source” as “any building, structure, facility, or installation which emits or may emit any air pollutant[]”). An example of a common nonstationary source of air pollution is a gas-powered motor vehicle. See Utility Air Regulatory Group v. EPA (UARG), 573 U.S. 302, 308 (2014). Within 90 days of the enactment of Section 7411, the EPA Administrator was to promulgate a list of stationary source categories that “cause[], or contribute[] significantly to, air 18 pollution[.]” 42 U.S.C. § 7411(b)(1)(A). In 1971, the Administrator included fossil-fuel-fired steam-generating power plants on that list. Air Pollution Prevention and Control: List of Categories of Stationary Sources, 36 Fed. Reg. 5,931 (March 31, 1971); see also New Source Rule, 80 Fed. Reg. at 64,527–64,528. Today’s power plants fall in that same category. ACE Rule, 84 Fed. Reg. at 32,557 n.250. Once a stationary source category is listed, the Administrator must promulgate federal “standards of performance” for all newly constructed sources in the category. 42 U.S.C. § 7411(b)(1)(B). The Act defines a “standard of performance” as a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. Id. § 7411(a)(1). Once such a new source regulation is promulgated, the Administrator also must issue emission guidelines for alreadyexisting stationary sources within that same source category. 42 U.S.C. § 7411(d)(1)(A)(ii); see also American Elec. Power Co., Inc. v. Connecticut (AEP), 564 U.S. 410, 424 (2011). While the new source standards are promulgated and enforced entirely by the EPA, the Clean Air Act prescribes a process of cooperative federalism for the regulation of existing sources. Under that structure, the statute delineates three distinct regulatory steps involving three sets of actors—the 19 EPA, the States, and regulated industry—each of which has a flexible role in choosing how to comply. See 42 U.S.C. § 7411(a)(1), (d). This allows each State to work with the stationary sources within its jurisdiction to devise a plan for meeting the federally promulgated quantitative guideline for emissions. See id. § 7411(d). The process starts with the EPA first applying its expertise to determine “the degree of emission limitation achievable through the application of the best system of emission reduction” that “has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1); see 40 C.F.R. § 60.22a. That system must “tak[e] into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements[.]” 42 U.S.C. § 7411(a)(1). Once the Administrator identifies the best system of emission reduction, she then determines the amount of emission reduction that existing sources should be able to achieve based on the application of that system and adopts corresponding emission guidelines. Id.; see also, e.g., ACE Rule, 84 Fed. Reg. at 32,523; Clean Power Plan, 80 Fed. Reg. at 64,719. Each State then submits to the EPA a plan that (i) establishes standards of performance for that State’s existing stationary sources’ air pollutants (excepting pollutants already subject to separate federal emissions standards), and (ii) “provides for the implementation and enforcement of such standards of performance[]” by the State. 42 U.S.C. § 7411(d)(1); see 40 C.F.R. § 60.23a. The standards of performance must “reflect[]” the emission targets that the EPA has determined are achievable. 42 U.S.C. § 7411(a)(1). In this context, a state standard need not adopt the best system identified by the EPA to “reflect[]” it. Id.; see 40 C.F.R. § 60.24a(c). Instead, the Clean Air Act affords States significant flexibility in designing and enforcing standards that 20 employ other approaches so long as they meet the emission guidelines prescribed by the Agency. If a State fails to submit a satisfactory plan, the EPA may prescribe a plan for that State. 42 U.S.C. § 7411(d)(2)(A); see 40 C.F.R. § 60.27a(c)-(e). Similarly, if the State submits a plan but fails to enforce it, the EPA itself may enforce the plan’s terms. Id. § 7411(d)(2)(B). The third and final set of relevant actors are the regulated entities themselves, to which, under the Act, the States may afford leeway in crafting compliance measures. See Clean Power Plan, 80 Fed. Reg. at 64,666; ACE Rule, 84 Fed. Reg. at 32,555. The EPA has exercised its authority under Section 7411 over the years to set emission limitations for different types of air pollution from various categories of existing sources. See 42 Fed. Reg. 12,022 (March 1, 1977) (fluorides from phosphate fertilizer plants); 42 Fed. Reg. 55,796 (Oct. 18, 1977) (acid mist from sulfuric acid plants); 44 Fed. Reg. 29,828 (May 22, 1979) (total reduced sulfur from kraft pulp plants); 45 Fed. Reg. 26,294 (April 17, 1980) (fluorides from primary aluminum plants); 60 Fed. Reg. 65,387 (Dec. 19, 1995) (various pollutants from municipal waste combustors); 61 Fed. Reg. 9905 (March 12, 1996) (landfill gases from municipal solid waste landfills); 70 Fed. Reg. 28,606 (May 18, 2005) (mercury from coal-fired power plants). The Clean Air Act is a comprehensive statute that includes a variety of regulatory programs for tackling air pollution in addition to Section 7411. Regulated parties may be subject to one or more programs. As relevant here, the National Ambient Air Quality Standards (NAAQS) provisions, 42 U.S.C. §§ 7408–7410, govern the levels of specified air pollutants that may be present in the atmosphere to protect air quality and the 21 public health and welfare. The Hazardous Air Pollutants program, id. § 7412, directs the EPA to establish strict emission limitations for the most dangerous air pollutants emitted from major sources. Section 7411’s cooperative federalism program for existing sources operates as a gap-filler, requiring the EPA to regulate harmful emissions not controlled under those other two programs. Id. § 7411(d)(1)(i). B. E LECTRICITY AND CLIMATE CHANGE 1. Electricity Electricity powers the world. Chances are that you are reading this opinion on a device that consumes electricity. Yet two distinct characteristics of electricity make its production and delivery in the massive quantities demanded by consumers an exceptionally complex process. First, unlike most products, electricity is a perfectly fungible commodity. Grid Experts Amicus Br. 6. A watt of electricity is a watt of electricity, no matter who makes it, how they make it, or where it is purchased. Second, at least as of now, this highly demanded product cannot be effectively stored at scale after it is created. Paul L. Joskow, Creating a Smarter U.S. Electricity Grid, 26 J. ECON. PERSP. 29, 31–33 (2012).1 Instead, electricity must 1 Change in storage capacity is picking up speed. See generally Richard L. Revesz & Burcin Unel, Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions, 42 HARV. ENV’T L. REV. 139, 140–141 (2018) (describing ongoing declines in cost of storage); LAZARD, LAZARD’S LEVELIZED COST OF STORAGE ANALYSIS—VERSION 6.0 (2020) (noting “storage costs have declined across most use cases and technologies, particularly for shorter-duration applications, in part driven by evolving preferences in the industry”). Nevertheless, the grid’s production capacity still far exceeds its present storage capacity. Univ. of Mich. 22 constantly be produced, and is almost instantaneously consumed. See Clean Power Plan, 80 Fed. Reg. at 64,677, 64,692; Grid Experts Amicus Br. 8. Those unique attributes led to the creation of the American electrical grid. 2 The grid has been called the “supreme engineering achievement of the 20th century,” MASS. INST. OF TECH., THE FUTURE OF THE ELECTRIC GRID 1 (2011) (formatting modified), and it is an exceptionally complex, interconnected system. “[A]ny electricity that enters the grid immediately becomes a part of a vast pool of energy that is constantly moving[.]” New York v. FERC, 535 U.S. 1, 7 (2002). That means that units of electricity as delivered to the user are identical, no matter their source. On the grid, there is no coal-generated electricity or renewable-generated electricity; there is just electricity. See Clean Power Plan, 80 Fed. Reg. at 64,692; Grid Experts Amicus Br. 7–8. Also, because storing electricity for any length of time remains technically challenging and often costly, the components of the grid must operate as a perfectly calibrated machine to deliver the amount of electricity that all consumers across the United States need at the moment they need it. Grid Experts Amicus Ctr. for Sustainable Sys., U.S. GRID ENERGY STORAGE (Sept. 2020), http://css.umich.edu/sites/default/files/US%20Grid%20Energy%20 Storage_CSS15-17_e2020.pdf (last visited Jan. 11, 2021) (United States has 1,100 gigawatts of installed generation capacity and just 23 gigawatts of storage capacity). 2 Technically, “grids.” There are three regional grids in the contiguous United States: Eastern, Western, and Texas. Grid Experts Amicus Br. 9; see also United States Dep’t of Energy, North American Electric Reliability Corporation Interconnections, https://www.energy.gov/oe/downloads/north-american-electricreliability-corporation-interconnections (last visited Jan. 11, 2021). 23 Br. 8, 10–11; see also 80 Fed. Reg. at 64,677. “If [someone] in Atlanta on the Georgia [leg of the] system turns on a light, every generator on Florida’s system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system[.]” Federal Power Comm’n v. Florida Power & Light Co., 404 U.S. 453, 460 (1972) (citation omitted). “Like orchestra conductors signaling entrances and cut-offs, grid operators use automated systems to signal particular generators to dispatch more or less power to the grid as needed over the course of the day, thus ensuring that power pooled on the grid rises and falls to meet changing demand.” Grid Experts Amicus Br. 11. Most generators of electricity on the American grid create power by burning fossil fuels like coal, oil, and natural gas. See United States Energy Information Administration (EIA), Frequently Asked Questions: What Is U.S. Electricity Generation by Energy Source? (Nov. 2, 2020), https://www.eia.gov/tools/faqs/faq.php?id=427&t=3 (last visited Jan. 11, 2021) (fossil fuels represented 62.6 percent of electricity generation in 2019). Some of those power plants take a fossil fuel (usually coal) and burn it in a water boiler to make steam. Other power plants take a different fossil fuel (usually natural gas), mix it with highly compressed air, and ignite it to release a combination of super-hot gases. Either way, that steam or superheated mixture is piped into giant turbines that catch the gases and rotate at extreme speeds. Those turbines turn generators, which spin magnets within wire coils to produce electricity. EIA, Electricity Explained (Nov. 9, 2020), https://www.eia.gov/energyexplained/ electricity/how-electricity-is-generated.php (last visited Jan 11, 2021). 24 2. Climate Change and the Federal Government Electrical power has become virtually as indispensable to modern life as air itself. But electricity generation has come into conflict with air quality in ways that threaten human health and well-being when power generated by burning fossil fuels emits carbon dioxide and other polluting greenhouse gases into the air. Since the late 1970s, the federal government has focused “serious attention” on the effects of carbon dioxide pollution on the climate. Massachusetts v. EPA, 549 U.S. at 507. In 1978, Congress adopted the National Climate Program Act, Pub. L. No. 95-367, 92 Stat. 601, which directed the President to study and devise an appropriate response to “man-induced climate processes and their implications[,]” id. § 3; see Massachusetts v. EPA, 549 U.S. at 507–508. In response, the National Academy of Sciences’ National Research Council reported “no reason to doubt that climate changes will result” if “carbon dioxide continues to increase,” and “[a] wait-andsee policy may mean waiting until it is too late.” Massachusetts v. EPA, 549 U.S. at 508 (quoting CLIMATE RESEARCH BOARD , CARBON D IOXIDE & CLIMATE: A SCIENTIFIC ASSESSMENT, at viii (1979)). In 1987, Congress passed the Global Climate Protection Act, which found that “manmade pollution[,]” including “the release of carbon dioxide, * * * may be producing a long-term and substantial increase in the average temperature on Earth[.]” Pub. L. No. 100-204, Title XI, §1102(1), 101 Stat. 1407, 1408 (codified at 15 U.S.C. § 2901 note). The Climate Protection Act directed the EPA to formulate a “coordinated national policy on global climate change.” Id. § 1103(b), 101 Stat. at 1408; see Massachusetts v. EPA, 549 U.S. at 508. 25 It was not until the Supreme Court’s 2007 decision in Massachusetts v. EPA, however, that the Court confirmed that carbon dioxide and other greenhouse gas emissions constituted “air pollutant[s]” covered by the Clean Air Act. See 549 U.S. at 528. The Supreme Court explained that the Clean Air Act’s “sweeping definition of ‘air pollutant’ includes ‘any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air[.]’” Id. at 528–529 (quoting 42 U.S.C. § 7602(g)). The Act, the Supreme Court held, “is unambiguous” in that regard. Id. at 529. “On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word ‘any.’” Id. And “[c]arbon dioxide” and other common greenhouse gases are “without a doubt” chemical substances that are “emitted into . . . the ambient air.” Id. (quoting 42 U.S.C. § 7602(g)). Given that statutory command, the Supreme Court ruled that the EPA “can avoid taking further action” to regulate such pollution “only if it determines that greenhouse gases do not contribute to climate change” or offers some reasonable explanation for not resolving that question. Massachusetts v. EPA, 549 U.S. at 533. Taking up the mantle, the EPA in 2009 found “compelling[]” evidence that emissions of greenhouse gases are polluting the atmosphere and are endangering human health and welfare by causing significant damage to the environment. 2009 Endangerment Finding, 74 Fed. Reg. at 66,497; see id. (“[T]he Administrator finds that greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. * * * The Administrator has determined that the body of scientific evidence compellingly supports this finding.”); id. at 66,497– 26 66,499. The EPA concluded that “‘compelling’ evidence supported the ‘attribution of observed climate change to anthropogenic’ [that is, human-influenced] emissions of greenhouse gases[.]” AEP, 564 U.S. at 417 (quoting 74 Fed. Reg. at 66,518). The “[c]onsequent dangers of greenhouse gas emissions,” the EPA determined, include increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id. (quoting 74 Fed. Reg. at 66,524–66,535). Not long thereafter, the Supreme Court ruled that the significant greenhouse gas pollution caused by fossil-fuel-fired power plants is subject to regulation under Section 7411 of the Clean Air Act. AEP, 564 U.S. at 424 (holding that Section 7411 “speaks directly to emissions of carbon dioxide from [fossil-fuel-fired] plants[]”) (internal quotation marks omitted). The Court concluded that the EPA’s expertise made it “best suited to serve as primary regulator of greenhouse gas emissions.” Id. at 428. In 2015, with the 2009 carbon dioxide endangerment finding continuing in effect, the EPA reaffirmed that greenhouse gases “endanger public health, now and in the future.” New Source Rule, 80 Fed. Reg. at 64,518. The EPA explained that, “[b]y raising average temperatures, climate change increases the likelihood of heat waves, which are associated with increased deaths and illnesses[,]” particularly 27 among “[c]hildren, the elderly, and the poor[.]” Id. at 64,517. In addition, the EPA found that “[c]limate change impacts touch nearly every aspect of public welfare.” Id. Among the “multiple threats caused by human emissions of [greenhouse gases],” the EPA pointed to climate changes that “are expected to place large areas of the country at serious risk of reduced water supplies, increased water pollution, and increased occurrence of extreme events such as floods and droughts.” Id. The EPA “emphasize[d] the urgency of reducing [greenhouse gas] emissions due to * * * projections that show [greenhouse gas] concentrations climbing to ever-increasing levels in the absence of mitigation[,]” citing independent assessments finding that, “without a reduction in emissions, CO2 concentrations by the end of the century would increase to levels that the Earth has not experienced for more than 30 million years.” Id. at 64,518. The federal government’s consistent recognition of the danger to public health and welfare caused by climate change, and the signal contribution of greenhouse gas emissions from power plants to global warming, continues to the present. In 2018, President Trump’s administration concluded that “Earth’s climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities.” U.S. GLOBAL CHANGE RESEARCH PROGRAM, FOURTH NATIONAL CLIMATE A SSESSMENT, VOLUME II: IMPACTS, RISKS, AND ADAPTATION IN THE UNITED STATES (REPORT- IN-B RIEF) 24 (2018). The administration added that “the evidence of human-caused climate change is overwhelming and continues to strengthen,” and “the impacts of climate change are intensifying across the country[.]” Id. at 26 (emphasis omitted). “Climate-related changes in weather patterns and associated changes in air, water, food, and the environment are affecting the health and well-being of the American people, causing injuries, illnesses, and death.” Id. at 28 102. The administration’s report concluded that urgent action is needed to mitigate these dangers because “[f]uture risks from climate change depend primarily on decisions made today.” Id. at 13. In preparing the ACE Rule, the EPA expressly acknowledged its continued adherence to the 2015 endangerment finding. 84 Fed. Reg. at 32,533 (The 2015 New Source Rule “continues to provide the requisite predicate for applicability of [Clean Air Act] section 111(d).”); id. at 32,557 n.250; see also Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program: Proposed Rule, 83 Fed. Reg. 44,746, 44,751 (Aug. 31, 2018) (confirming that the 2015 New Source Rule “remains on the books[]”); EPA Br. 217. That endangerment finding provided the essential factual foundation—and triggered a statutory mandate—for the EPA to regulate greenhouse gas emissions from both new and existing power plants. See New Source Rule, 80 Fed. Reg. at 64,527, 64,529–64,532; Clean Power Plan, 80 Fed. Reg. at 64,683–64,690; see also 42 U.S.C. §§ 7411(b)(1)(A)–(B) (duty to regulate new stationary sources that contribute significantly to dangerous pollution identified in endangerment finding), 7411(d)(1)(A)(ii) (duty to regulate existing stationary sources that would be regulated under § 7411(b) if they were new stationary sources). Recall, Section 7411(b)(1)(A) provides that the EPA Administrator “shall” regulate any category of sources that, “in his judgment * * * causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA endangerment findings reflect such well-established risks. 29 C. T HE C LEAN POWER PLAN In the last decade, the EPA has heavily focused its regulation of greenhouse gases on the power sector because “power plants are far and away the largest stationary-category source of greenhouse gases[,]” and “power plants’ contributions to CO2 pollution * * * dwarf[] other categories[.]” EPA Br. 169. In October 2015, the EPA issued greenhouse gas emission standards for new and modified power plants. See New Source Rule, 80 Fed. Reg. at 64,510. In so doing, the EPA found that, “[a]ll told, these fossil fuel-fired [power plants] emit almost one-third of all U.S. [greenhouse gas] emissions, and are responsible for almost three times as much as the emissions from the next ten stationary source categories combined.” Id. at 64,531. That rule and finding remain in effect and are not challenged in this litigation. The EPA then turned to the regulation of existing power plants. The EPA began, as the Clean Air Act requires, by determining the best system of emission reduction that has been adequately demonstrated for existing fossil-fuel-fired power plants. See 42 U.S.C. § 7411(a)(1); Clean Power Plan, 80 Fed. Reg. at 64,718. In identifying that system, the EPA chose to build on the established grid system and methods of operation already adopted by and familiar to the power sector. See 80 Fed. Reg. at 64,725, 64,727–64,728. The regulations and standards that the EPA formulated came to be known as the Clean Power Plan. Id. at 64,663. In the Clean Power Plan, the EPA determined that a combination of three existing methods of emission reduction— which the Plan referred to as building blocks, 80 Fed. Reg. at 64,667—formed the “best system of emission reduction,” 42 U.S.C. § 7411(a)(1). 30 First, the system incorporated heat-rate improvements— that is, technological measures that improve efficiency at coalfired steam power plants and, in that way, reduce the amount of coal that must be burned to produce each watt of electricity to the grid. 80 Fed. Reg. at 64,667. Second, the system added the “substitut[ion of] increased generation from lower-emitting existing natural gas combined cycle units for generation from higher-emitting affected steam generating” power plants, which are mostly coal-fired. 80 Fed. Reg. at 64,667. Third, the system prioritized the use of electricity generated from zero-emitting renewable-energy sources over electricity from the heavily greenhouse-gas-polluting fossilfuel-fired power plants. 80 Fed. Reg. at 64,667. Those second and third methods of emission control are often referred to as “generation shifting” because the reductions occur when the source of power generation shifts from higher-emission power plants to less-polluting sources of energy. See Clean Power Plan, 80 Fed. Reg. at 64,728–64,729. As the EPA observed, such shifts in generation already occur all the time as a matter of grid mechanics. That is, within the grid’s “Constrained Least-Cost Dispatch” system, production from “generators with the lowest variable costs” will be dispatched “first, as system operational limits allow, until all demand is satisfied.” Grid Experts Amicus Br. 12. “[R]enewable energy generators typically receive dispatch priority because they have lower variable costs than fossil-fuelfired generators, which must purchase fuel.” Id. at 13 (citing 80 Fed. Reg. at 64,693). The EPA found that most electricity is generated by diversified utilities that could achieve most or all of the shift to lower- or no-emission generation by 31 reassessing the dispatch priority of their own assets. See 80 Fed. Reg. at 64,796, 64,804. As required by Section 7411(a)(1), the EPA then quantified the degree of emission reduction achievable under that three-tier best system for the relevant fossil-fuel-fired power plants and translated it into state-specific emissions goals for 2030. Clean Power Plan, 80 Fed. Reg. at 64,824– 64,825. To permit additional flexibility, the Plan actually provided two alternative types of targets: rate-based goals, reflecting the rate of emission per certain amount of generation, and mass-based goals, reflecting the total emission from a State’s sources. Id. at 64,820, 64,824–64,825 Tables 12, 13. The alternative metrics were an added source of flexibility for States in choosing how they would meet the federal limits. Under the Clean Air Act, States could then propose plans that set standards of performance for their existing power plants that would meet those emission goals. Clean Power Plan, 80 Fed. Reg. at 64,664. In doing so, the States and their power plants were under no obligation to use the three specific methods that the EPA had identified in determining the best system of emission reduction. Rather, consistent with Section 7411(d)’s cooperative federalism approach, States were free to choose any measures, approaches, or technologies that they deemed appropriate to meet the federal guidelines. For example, they could adopt technological controls already in use by some power plants like carbon capture and sequestration (by which carbon dioxide is captured from the plant’s flue gas before it is emitted and then securely stored so it cannot reach the atmosphere) or co-firing (where fuels that release less carbon dioxide are burned alongside fuels that release more to reduce the amount of the latter used). See id. at 64,883. The EPA also suggested that States might rely on emissions-trading 32 programs (often referred to as cap-and-trade) and other potential compliance strategies. Id. at 64,887. The EPA found that its proposed approach was “consistent with, and in some ways mirrors, the interconnected, interdependent and highly regulated nature of the utility power sector[]” and its grid, as well as “the daily operation of affected [power plants] within this framework, and the critical role of utilities in providing reliable, affordable electricity at all times and in all places within this complex, regulated system.” Clean Power Plan, 80 Fed. Reg. at 64,678. The Clean Power Plan was challenged in this court. West Virginia v. EPA, No. 15-1363 (and consolidated cases) (D.C. Cir. Oct. 23, 2015). After we heard argument en banc, but before we issued a decision, that litigation was held in abeyance and ultimately dismissed as the EPA reassessed its position. No. 15-1363, Docs. 1673071, 1806952. D. T HE ACE RULE In 2019, the EPA issued a new rule that repealed and replaced the Clean Power Plan: The Affordable Clean Energy (ACE) Rule. See Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019). That Rule is the subject of this litigation. 1. Repeal of the Clean Power Plan At the outset, the ACE Rule repealed the Clean Power Plan. The EPA explained that it felt itself statutorily compel