Texas Blockchain Council v. Department of Energy — Entry #22: REPLY to Response to Motion, filed by Sierra Club, re [18] MOTION for Leave to File Amicus Brief by Casey Roberts

Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 1 of 6


                            UNITED STATES DISTRICT COURT
                             WESTERN DISTRICT OF TEXAS
                                   WACO DIVISION


 TEXAS BLOCKCHAIN COUNCIL,                           )
 a nonprofit association;                            )
 RIOT PLATFORMS, INC.,                               )
                                                     )
                        Plaintiffs                   )
                                                     )   Case No. 6:24-cv-99
 v.                                                  )
                                                     )
 DEPARTMENT OF ENERGY;                               )
 JENNIFER M. GRANHOLM, in her                        )
 official capacity as Secretary of Energy;           )
 ENERGY INFORMATION                                  )
 ADMINISTRATION; JOSEPH                              )
 DECAROLIS, in his official capacity as              )
 Administrator of Energy Information                 )
 Administration; OFFICE OF                           )
 MANAGEMENT AND BUDGET;                              )
 SHALANDA YOUNG, in her official                     )
 capacity as Director of Office of                   )
 Management and Budget,                              )
                                                     )
                        Defendants.                  )


      REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE AMICUS BRIEF

       This fast-moving, fluid case remains pending before this Court. A temporary restraining

order remains in place, with accompanying legal reasoning; a motion for intervention remains

live; and this Court has made no final decision on either a preliminary injunction or the

resolution of this case as a whole. This litigation has not yet been resolved, and Sierra Club’s

amicus remains of significant aid regarding the underlying issues.


                                                 1


          Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 2 of 6


        First, and most importantly, the issues that Sierra Club highlights in its proposed amicus

provide relevant and useful information as to the reasonable likelihood of public harm absent the

EIA’s emergency collection of information as to cryptocurrency mining facilities. See Dkt. 18.

As Sierra Club’s proposed amicus explains, Dkt. 18-1, information about how cryptocurrency

mining facilities interact with the electric grid is critical to ensuring the lights stay on and

customers’ costs do not rise due to abuse of current market rules by cryptocurrency companies.

For federal and state regulators, grid operators, utilities, and the public, greater insight into (1)

the magnitude of demand cryptocurrency facilities place on the grid and (2) the ways in which

facilities respond to market rules in conditions of high stress on the grid is especially critical for

responsible long-term resource planning and response to emergencies in which reliability is at

risk. The deaths of hundreds of Texans when the lights went out during Winter Storm Uri show

just how important accurate information and adequate resource planning is, and underscore the

urgency of obtaining this information before the next winter.

        Contrary to Plaintiffs’ assertion, Dkt. 21 at 2, this issue is critical not only to the question

of where the public interest lies but also to the likelihood of success on the merits. This Court

concluded in its temporary restraining order that “Plaintiffs are likely to succeed in showing that”

Defendants had failed to “justify[]” “an emergency request” under the Paperwork Reduction Act,

stating that “[s]uch emergency requests are only appropriate upon an agency head’s

determination that public harm is reasonably likely to result if normal clearance procedures are

followed.” Dkt. 13 at 4 (citing 5 C.F.R. § 1320.13(a)). As Sierra Club explained in its proposed

amicus, the brief “provides further information about the[] public harms that are reasonably

likely to occur if information collection is delayed. See 5 C.F.R. 1320.13.” The question of

whether the reasonable likelihood of public harm standard was satisfied for purposes of the


                                                   2


          Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 3 of 6


Paperwork Reduction Act’s implementing regulations is, as Plaintiffs themselves have

recognized, a merits question. Dkt. 5 at 5 (“II. Plaintiffs Are Substantially Likely to Succeed on

the Merits . . . A. Defendants Failed to Show that Public Harm Was Reasonably Likely to Occur

Unless the Survey Was Authorized”).

       Second, Plaintiffs’ assertion that Sierra Club was aware of a “discontinu[ance]” by the

EIA of the emergency collection of Form EIA-862 on the evening of February 26 is both

irrelevant and inaccurate. See Dkt. 21 at 1. Sierra Club was, and is, aware that this Court issued

an order granting Plaintiffs’ motion for temporary restraining order on February 23, 2024. Dkt.

13. That temporary restraining order “maintains the pre-enforcement status quo of Defendants’

Survey, EIA-862, until such time a preliminary injunction hearing can be held.” Id. at 5. In the

temporary restraining order, the Court recognized that the EIA administrator had stated, “In

order to facilitate the Court’s ability to hear from all parties in advance of issuing a decision on

Plaintiffs’ request for emergency relief, EIA has determined to exercise its discretion not to

enforce any requirement to file the survey form EIA-862 through March 22, 2024.” Id. at 2

(quoting Dkt. 10 at 1-2). The Court concluded, “A credible threat of enforcement, albeit delayed,

still exists.” Id. at 3. In other words, the EIA Administrator had represented the agency would

temporarily suspend enforcement due to this litigation and the Court issued a temporary

restraining order after that representation. Defendants were, and are, bound by that temporary

restraining order. Any discontinuance of collection of the information pursuant to the Court’s

temporary restraining order is simply Defendants following this Court’s order, as required.

       It is difficult, however, for Sierra Club to determine why Plaintiffs believe any additional

“discontinuance” affects the case’s procedural posture, since there is no evidence in the record as

to a discontinuance by EIA on the evening of February 26. Although Plaintiffs’ Response cites


                                                  3


          Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 4 of 6


“Exhibit 1” as evidence that on February 26 “EIA had discontinued the emergency collection of

Form EIA-862,” the Response does not have an Exhibit 1 attached. See Dkt. 21. The docket in

this litigation provides two entries on February 26, a pro hac vice motion and a motion for leave

to intervene—neither of which are representations by EIA regarding discontinuance of the

emergency collection of Form EIA-862. In any event, Sierra Club’s counsel is not currently

aware of any permanent discontinuance by the EIA of emergency collection of Form EIA-862,

or discontinuance unrelated to either the March 25 timeline that EIA previously set forth in this

litigation or the temporary restraining order currently in effect.

        Third, the existence of “an agreement-in-principle” does not resolve the case. Indeed,

Defendants’ counsel have already once represented to the Court that “the parties were prepared

to agree to an order that memorialized” a declaration by the EIA Administrator agreeing to

postpone collection and sequester any data already received until March 25, 2024, but when no

such agreement was reached, the Court found Defendants’ declaration insufficient and issued the

still-operative temporary restraining order. Dkt. 13 at 2. This has been a fast-moving and fluid

case. One business day after the temporary restraining order issued and the day before Sierra

Club filed its motion for leave to file an amicus brief, the Chamber of Digital Commerce moved

for leave to intervene as plaintiff. Dkt. 16. That motion, which Plaintiffs did not oppose, Dkt. 16

at 2, remains pending as well. In light of this history and the potential for further rapid changes in

the litigation, Sierra Club believes it is essential to ensure the Court has the benefit of further

perspective on the need for emergency collection of this information.

        Local Civil Rule CV-7(g), is not a reason for this Court to deny leave to file. This Court

has broad discretion regarding leave to file amicus briefs, and Local Civil Rule CV-7(g) does not

alter that discretion. See Lefebure v. D’Aquilla, 15 F.4th 670, 673-74 (5th Cir. 2021). Local Civil


                                                   4


          Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 5 of 6


Rule CV-7(g) states that the court “may deny a nondispositive motion” absent the movant

“certif[ying] the specific reason that no agreement could be made.” Id. (emphasis added). Any

concern that the Court might have on this point is cured by Plaintiffs’ response outlining in depth

their opposition to the motion. See Dkt. 21. Given that the Court is aware of Plaintiffs’ rationale,

the lack of certification should not be the basis for opposition. The key question is whether the

amicus will aid this Court in the resolution of this litigation—and, in light of the existing

temporary restraining order and the current lack of full resolution of this case, it does so.


Dated: February 29, 2024                       Respectfully submitted,

                                                      /s/ Casey Roberts
 Megan Wachspress                                     Casey Roberts
 Sanjay Narayan                                       Sierra Club
 Sierra Club                                          1536 Wynkoop Street, Ste 200
 2101 Webster St, Ste 1300                            Denver, CO 80202
 Oakland, CA 94612                                    (303) 454-3355
 (415) 977-5635                                       [email protected]
 [email protected]
 [email protected]                        Kathryn Huddleston
                                                      Sierra Club
                                                      6406 N I-35, Ste 1805
                                                      Austin, TX 78752
                                                      [email protected]


                                                  5


         Case 6:24-cv-00099-ADA Document 22 Filed 02/29/24 Page 6 of 6


                                CERTIFICATE OF SERVICE

       I hereby certify that I served a copy of the foregoing motion via the Court’s ECF filing
system.

Dated: February 29, 2024                            /s/ Casey Roberts
                                                    Casey Roberts


                                                6