Coalition for Responsible Reg v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: December 20, 2012

No. 09-1322

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

STATE OF MICHIGAN, ET AL.,

INTERVENORS

Consolidated with 10-1024, 10-1025, 10-1026, 10-1030,

10-1035, 10-1036, 10-1037, 10-1038, 10-1039, 10-1040,

10-1041, 10-1042, 10-1044, 10-1045, 10-1046, 10-1234,

10-1235, 10-1239, 10-1245, 10-1281, 10-1310, 10-1318,

10-1319, 10-1320, 10-1321

No. 10-1073

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

2

AMERICAN FROZEN FOOD INSTITUTE, ET AL.,

INTERVENORS

Consolidated with 10-1083, 10-1099, 10-1109, 10-1110,

10-1114, 10-1118, 10-1119, 10-1120, 10-1122, 10-1123,

10-1124, 10-1125, 10-1126, 10-1127, 10-1128, 10-1129,

10-1131, 10-1132, 10-1145, 10-1147, 10-1148, 10-1199,

10-1200, 10-1201, 10-1202, 10-1203, 10-1206, 10-1207,

10-1208, 10-1210, 10-1211, 10-1212, 10-1213, 10-1216,

10-1218, 10-1219, 10-1220, 10-1221, 10-1222

No. 10-1092

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

LANGBOARD, INC. - MDF, ET AL.,

INTERVENORS

Consolidated with 10-1094, 10-1134, 10-1143, 10-1144,

10-1152, 10-1156, 10-1158, 10-1159, 10-1160, 10-1161,

10-1162, 10-1163, 10-1164, 10-1166, 10-1182

3

No. 10-1167

AMERICAN CHEMISTRY COUNCIL,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ

JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY,

RESPONDENTS

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, ET AL.,

INTERVENORS

Consolidated with 10-1168, 10-1169, 10-1170, 10-1173,

10-1174, 10-1175, 10-1176, 10-1177, 10-1178, 10-1179,

10-1180

On Petitions for Rehearing En Banc

______

Before: SENTELLE*, Chief Judge, and HENDERSON,

ROGERS*, TATEL*, GARLAND, BROWN*, GRIFFITH, and

KAVANAUGH*, Circuit Judges.

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ORDER

The petition of the Chamber of Commerce of the United

States of America, joined by the State of Alaska, Peabody

Energy Company, Southeastern Legal Foundation, et al., State

Petitioners and Intervenors for Petitioners, for rehearing en

banc; and the petition of the National Association of

Manufacturers, et al. for rehearing en banc in No. 10-1073, et al.

and No. 10-1167, et al., and the responses to the petitions were

circulated to the full court, and a vote was requested.

Thereafter, a majority of the judges eligible to participate did not

vote in favor of the petitions. Upon consideration of the

foregoing, it is

ORDERED that the petitions be denied.

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Jennifer M. Clark

Deputy Clerk

*Circuit Judges Brown and Kavanaugh would grant the petitions

for rehearing en banc.

* A statement by Chief Judge Sentelle and Circuit Judges

Rogers and Tatel, concurring in the denials of rehearing en banc,

is attached.

* A statement by Circuit Judge Brown, dissenting from the

denials of rehearing en banc, is attached.

*A statement by Circuit Judge Kavanaugh, dissenting from the

denials of rehearing en banc, is attached.

SENTELLE, Chief Judge, ROGERS, Circuit Judge, and

TATEL, Circuit Judge, concurring in the denials of rehearing

en banc: In dissenting from the denials of rehearing en banc,

Judge Brown primarily takes issue with EPA’s Endangerment

Finding. But as she candidly acknowledges, see Dissenting

Op. at 2 (Brown, J.), her quarrel is with the Supreme Court. In

Massachusetts v. EPA, 549 U.S. 497 (2007), the Court

expressly held that the Clean Air Act’s “sweeping definition

of ‘air pollutant’ ” unambiguously includes greenhouse gases.

See id. at 528–29. Moreover, in so holding, the Court

expressly rejected many of the arguments her dissent now

presses. In particular, it rebuffed EPA’s attempt to use

“postenactment congressional actions and deliberations” to

obscure “the meaning of an otherwise-unambiguous statute,”

id. at 529, and found EPA’s reliance on FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000), “similarly

misplaced,” Massachusetts v. EPA, 549 U.S. at 530. Seeking

to revive the Brown & Williamson argument, Judge Brown

suggests that the Court never considered the “far-reaching

effects” of extending greenhouse gas regulation to stationary

sources. See Dissenting Op. at 18 (Brown, J.). But this is

inaccurate—the briefs before the Court explicitly raised the

argument that interpreting “air pollutant” to include

greenhouse gases could have tremendous consequences for

stationary-source regulation. See, e.g., Brief of Respondent

CO2 Litigation Group, Massachusetts v. EPA, 549 U.S. 497

(2007) (No. 05-1120), 2006 WL 3043971 at *19–*31.

To the extent Judge Brown attempts to bypass

Massachusetts v. EPA by focusing on the statutory condition

that air pollution “reasonably be anticipated to endanger

public health or welfare,” 42 U.S.C. § 7521(a)(1) (emphasis

added), her quarrel is not just with the Supreme Court, but

also with EPA’s assessment of the science. Of course, we

agree that the statute requires EPA to find a particular causal

nexus between the pollutant and the harm in order to regulate.

See Dissenting Op. at 9 (Brown, J.). But that is exactly what

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EPA did: it found that “greenhouse gases in the atmosphere

may reasonably be anticipated both to endanger public health

and to endanger public welfare.” Endangerment and Cause or

Contribute Findings for Greenhouse Gases Under Section

202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,497

(Dec. 15, 2009). And, as the panel opinion explains, EPA’s

scientific judgment about the causal relationship between

greenhouse gases and climate change is a scientific

determination entitled to “an extreme degree of deference.”

Coalition for Responsible Regulation v. EPA, 684 F.3d 102,

120 (D.C. Cir. 2012) (quoting American Farm Bureau

Federation v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009)). The

dissent's suggestion that EPA was somehow statutorily

precluded from finding the requisite nexus between

greenhouse gases and harm to public health and welfare, see

Dissenting Op. at 10–11 (Brown, J.), is belied by the Supreme

Court's decision to remand precisely this question. See

Massachusetts v. EPA, 549 U.S. at 532–35.

Judge Kavanaugh’s dissent relates to the scope of the

Prevention of Significant Deterioration (“PSD”) program, an

aspect of the panel opinion Judge Brown also rejects.

Specifically, Judge Kavanaugh disagrees with EPA’s

longstanding interpretation of the term “any air pollutant,” 42

U.S.C. § 7479(1), arguing that, in the context of the PSD

program, “any air pollutant” refers not to all pollutants

regulated under the Clean Air Act, but only to the six NAAQS

pollutants. Because taking the statute at its word and

interpreting “any air pollutant” to include greenhouse gases

would lead to what he considers absurd results, Judge

Kavanaugh insists that EPA and this Court are obligated to

read “any air pollutant” more narrowly. See Dissenting Op. at

3–10 (Kavanaugh, J.). This argument, however, hinges on the

proposition that both readings are plausible interpretations of

an ambiguous statutory provision. See Dissenting Op. at 2–3,

3

10 (Kavanaugh, J.). But as the panel opinion explains at

length, the statute is clear. See Coalition for Responsible

Regulation, 684 F.3d at 132–44. Congress did not say “certain

‘air pollutants.’ ” Dissenting Op. at 2 (Kavanaugh, J.). It said

“any air pollutant,” and it meant it. See Coalition for

Responsible Regulation, 684 F.3d at 136. Thus, unlike the

unreasonable interpretation rejected in Kloeckner v. Solis, No.

11-184, slip op. at 7–13 (U.S. 2012), the panel’s interpretation

of the statute is the only plausible one.

Moreover—and again, as the panel opinion explains at

length, see Coalition for Responsible Regulation, 684 F.3d at

135–36—considering “any air pollutant” in context buttresses

rather than undermines the panel’s interpretation. The statute

frames the purpose of the PSD program in broad—not

NAAQS-specific—terms, emphasizing that the program’s

goal is “to protect public health and welfare from any actual

or potential adverse effect which . . . may reasonably be

anticipate[d] to occur from air pollution.” 42 U.S.C.

§ 7470(1). And although certain aspects of the program are

specifically directed at NAAQS pollutants, see, e.g., id.

§ 7473(b)(4), the program as a whole plainly has a more

expansive scope. For instance, covered sources are required to

(1) install the best available control technology for “each

pollutant subject to regulation under [the Act],” id.

§ 7475(a)(4) (emphasis added), and (2) demonstrate that they

will not cause or contribute to “any . . . applicable emission

standard” under the Act, id. § 7475(a)(3) (emphasis added).

In the end, we agree that “the question here is: Who

Decides?” Dissenting Op. at 18 (Kavanaugh, J.). We also

agree that “Congress (with the President) sets the policy

through statutes, agencies implement that policy within

statutory limits, and courts in justiciable cases ensure that

agencies stay within the statutory limits set by Congress.”

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Dissenting Op. at 18 (Kavanaugh, J.). Here, Congress spoke

clearly, EPA fulfilled its statutory responsibilities, and the

panel, playing its limited role, gave effect to the statute’s plain

meaning. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837,

842–43 (1984) (“If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.”).

To be sure, the stakes here are high. The underlying

policy questions and the outcome of this case are undoubtedly

matters of exceptional importance. The legal issues presented,

however, are straightforward, requiring no more than the

application of clear statutes and binding Supreme Court

precedent. There is no cause for en banc review.

BROWN, Circuit Judge, dissenting from the denial of

rehearing en banc: In the summer of 1974, while waiting to

start classes at UCLA, I was lucky enough to obtain a summer

job house sitting in the pleasant, upscale neighborhood of

Pasadena. Known mostly for its Rose Parade and Rose Bowl,

Pasadena is one of the more scenic exurbs of Los Angeles. I

inhabited a sparsely furnished, modest-but-pricey bungalow

set among the lush landscape typical of southern California.

This is a place where Birds of Paradise grow ten feet tall and

the magenta blossoms of Bougainvillea fall like lavish

draperies from redwood garden trellises. After staying in the

house more than a month and spending a restless night

listening to the agitated thrashings of the jacaranda trees in a

fitful wind, I stumbled bleary-eyed into the kitchen, looked

out the window, and stopped — utterly dumbfounded. There

— looking like it was but a few feet beyond the back fence —

stood a mountain. Not a foothill. Not an unobtrusive mesa.

A mountain! Closer inspection revealed not a lone majestic

peak, but a whole mountain range I later identified as the San

Gabriels. In those days, the air in the Los Angeles basin was

so thick with smog that a mountain, or even a nearby

mountain range, could simply disappear.

Although the Los Angeles basin was among the most

notorious examples of the phenomenon, it was by no means

unique and certainly not the worst. It was this crisis of

ambient air quality that precipitated the enactment of the

Clean Air Act (CAA). But as the CAA’s history, language,

and structure make clear, Congress never intended the Act to

serve as an environmental cure-all. It was targeted legislation

designed to remedy a particular wrong: the harmful direct

effects of poisoned air on human beings and their local

environs. This is what Congress understood as “air pollution

which may reasonably be anticipated to endanger public

health” in the tailpipe emissions provision, 42 U.S.C. §

7521(a)(1). The Supreme Court in Massachusetts v. EPA,

549 U.S. 497 (2007), however, concluded otherwise. In dicta

2

too suggestive to ignore, the Court implicitly assumed that

climate change could provide the basis for an endangerment

finding in the tailpipe context. See id. at 532–33.

Bound as I am by Massachusetts, I reluctantly concur with

the Panel’s determination that EPA may regulate GHGs in

tailpipe emissions. But I do not choose to go quietly.

Because the most significant regulations of recent memory

rest on the shakiest of foundations, Part I of this statement

engages Massachusetts’s interpretive shortcomings in the

hope that either Court or Congress will restore order to the

CAA. Part II, by contrast, reflects my belief that

Massachusetts does not compel the same result for Title V

and the Prevention of Significant Deterioration of Air Quality

(PSD) program. Although I agree with Judge Kavanaugh’s

dissent, Coal. for Responsible Regulation v. EPA, Nos. 09-

1322, et al. (Kavanaugh, J., dissenting from denial of

rehearing en banc), I approach the inflection point from a

slightly different perspective. Part III concludes with a brief

note on standing.

Because I would vote for the full court to consider the

propriety of extending Massachusetts to Title V and the PSD

program, I respectfully dissent from this denial of rehearing

en banc.

I.

A.

The origins of the Clean Air Act are closely tied to fatal

fogs and deadly air inversions that, for much of early post-

industrial history, seemed to be the inevitable consequence of

economic progress. See Arnold W. Reitze, Jr., A Century of

Air Pollution Control Law: What’s Worked; What’s Failed;

3

What Might Work, 21 ENVTL. L. 1549, 1575 (1991).1 Initially

regulated at the local and state level, air pollution became the

focus of the federal government only after World War II. See

id. at 1585–86. In October 1948, a severe temperature

inversion in the industrial city of Donora, Pennsylvania

increased air pollution to such an extent that traffic “ ‘was

virtually stopped because of lack of visibility.’ ” The

inversion killed 20 people, id., and prompted the federal

government to begin researching air pollution. Id. at 1586.

By 1961, President Kennedy included a plea for “an effective

air pollution program” in his Special Message on the Natural

Resources. Id. Public pressures for legislation only increased

when a “Killer Smog” engulfed London in December 1962,

killing at least 340, and a similar inversion in New York City

allegedly claimed the lives of 200. Id. Eventually, legislation

recommended by President Kennedy in February 1963 led to

the enactment of the CAA, which President Johnson signed

into law on December 17, 1963. Id. at 1586–87. Seven years

later, President Nixon signed The Clean Air Amendments of

1970. The 1970 Amendments authorized the EPA to prescribe

national ambient air quality standards (NAAQS) and created

the statutory framework that still exists today.

B.

It was no happy accident that congressional draftsmen

titled the legislation the “Clean Air Act.” Ambient air quality

was the point, purpose, and focus of the CAA. Congress had

set its sights on the “dirty, visible ‘smokestack’ emissions,”

136 CONG. REC. H2771-03 (1990) (statement of Rep. Roe),

1

Inversions, sometimes known as “Londoners,” occur “when a

layer of hot air warmed by . . . water exists above cooler ground-

level air and traps smoke and particulate matter under the warmer

air.” Id.

4

and smog caused by vehicle emissions. The CAA was the

means by which Congress would grapple with urban air

pollution and its attendant health effects, including impaired

breathing, heart disease, lung damage and lung disease, and

even death. If pollution was the problem, these ills were the

specific harms Congress sought to combat. Even a cursory

glance at the legislative history, with its numerous charts,

graphics, and statistics detailing cancer and death rates, will

bear this point out. See, e.g., Hearings on Air Pollution —

1968 Before the Subcomm. on Air and Water Pollution of the

Sen. Comm. on Pub. Works, 90th Cong. 2nd Sess., pt. 2, 608–

20 (1968) (statement of Dr. Samuel S. Epstein, Children’s

Cancer Research Foundation.) (“Air Pollution — 1968”).

With the enactment of the 1990 Amendments, Congress

expanded the Act beyond its singular emphasis on urban air

quality to address hazardous — i.e., toxic — air pollutants,

acid rain, and stratospheric ozone. In regulating hazardous

pollutants, Congress reemphasized the need for a close and

tangible nexus between pollutant and harm. The legislative

record, for example, continued to conceive of dangers in

terms of their direct effects on human health and well-being.

See, e.g., S. Rep. No. 101-228, at 3388 (1989), reprinted in

1990 U.S.C.C.A.N. 3385 (“Air pollution can silently damage

our lungs and heart or act swiftly in the case of exposure to

toxic air pollutants. Rigorous regulation of toxic air

pollutants is needed to avoid risk of serious, irreversible

damage to human health.”). To the extent the regulation of

stratospheric ozone and acid rain suggest a broader nexus

between pollutant and harm to human health, the very

particular way in which Congress handled these exceptions

goes a long way toward proving the rule: Congress only

expands the CAA through considered legislative acts.

5

In addressing these transnational phenomena, the

legislature did not spin regulations out of whole cloth. With

ozone concerns, for example, Congress developed solutions

through international negotiations, the implementation of

which led to the creation of a separate title of the CAA. See

NRDC v. EPA, 464 F.3d 1, 3 (D.C. Cir. 2006). Likewise,

years of contentious discussions with Canada helped bring

about the acid rain provisions in the 1990 Amendments. See

generally Dennis A. Leaf, Intergovernmental Cooperation:

Air Pollution from an U.S. Perspective, 18 CAN.-U.S. L.J. 245

(1992). Simply put, when Congress became aware of new

dangers, it acted judiciously in crafting workable remedies

that, when they obtained the necessary political support, were

worked into their own discrete provisions under the Act.

Neither Congress nor the EPA attempted to force these

distinct problems into existing, ill-suited regulatory schemes.

Congressman Waxman, one of the strongest proponents

of stringent air pollution controls and a key force behind the

1990 Amendments, has stated that “in recent experience, no

legislation has received more scrutiny during its

consideration.” The Honorable Henry A. Waxman, An

Overview of the Clean Air Act Amendments of 1990, 21

ENVTL. L. 1721, 1724 (1991). Hyperbole or not, the

admission is telling. The history of the CAA is one of hard-

fought incremental gains through which Congress remedied

particular environmental wrongs with tailored remedies.

Said the Congressman:

Discrete and extensive new programs are included to

grapple with high ambient pollution levels (urban and

regional smog), hazardous air pollution, acid rain, and

depletion of the stratospheric ozone layer. Each of these

programs [was] tailored to the problem it [sought] to

address, and each [was] quite different in its approach.”

6

Id. at 1811. Political necessity has forced Congress to

calibrate its amendments to the CAA with great specificity

and care. Where our Representatives have acted with such

caution, any suggestion that Congress has — through a single

word — conferred upon EPA the authority to steamroll

through Congressional gridlock, upend the Senate’s rejection

of the Kyoto Protocol, and regulate GHGs for the whole of

American industry must necessarily fail. The legislature,

recall, does not “hide elephants in mouseholes.” Whitman v.

Am. Trucking Assocs., 531 U.S. 457, 468 (2001).

But we needn’t rely on interpretative canons alone to

make this point. In drafting the 1990 Amendments, Congress

considered — and expressly rejected — proposals authorizing

EPA to regulate GHGs under the CAA. See S. Rep. No. 101-

228, at 377 (1989), as reprinted in 1990 U.S.C.C.A.N. 3385,

3760. Even the Executive objected that an attempt to control

Carbon Dioxide (CO2) emissions — emissions not harmful to

health — in order to prevent global warming was premature.

See Administration’s Amendments — Hearings Before the

Subcomm. On Health and the Env’t of the Comm. on Energy

and Commerce, 101st Cong., 1st Sess. (1989) (includes Bush

Administration Report on S. 1630). The Executive’s critique

noted that “unilateral action aimed at addressing a global

problem” through a standard limiting tailpipe emissions

would not be an effective means of safeguarding the global

environment and would “necessarily punish national

interests.” Id. at 792, 813.

That Congress has never deviated from its decision to not

regulate GHGs under the CAA was not for lack of

opportunity. Congress has considered and rejected countless

other bills in the years since the 1990 Amendments that would

have authorized GHG regulation. By one estimate,

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Congressmen have proposed over 400 bills concerning GHGs

between 1990 and 2009. See Abigail R. Moncrieff,

Reincarnating the “Major Questions” Exception to Chevron

Deference As A Doctrine of Noninterference (or Why

Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. 593,

636–37 (2008) (tracking proposals). Congress’s inability to

break this nearly quarter-century long deadlock is incredibly

suggestive: this is not an area of policymaking where the

legislature has acted rashly or unthinkingly in delegating

authority to agencies.

At bottom, Congress understood the dangers of “any air

pollutant” in § 7521(a)(1) in terms of the ill-effects caused

those who inhale the pollutants, not the broad, attenuated

consequences of climate change. The CAA was drafted not to

combat the threat of flooding or the menace of heat waves,

see Endangerment and Cause of Contribute Findings for

Greenhouse Gases, 74 Fed. Reg. 66,496, 66,526 (Dec. 15,

2009) (“EPA Endangerment Finding”), but the choking,

stifling, and degenerative effect of airborne pollutants on

human beings and their affected localities. Congress has long

quantified this harm in terms of mortality rates, see, e.g., Air

Pollution — 1968, 564 (statement of Dr. Roger S. Mitchell,

Director, Webb-Waring Institute for Medical Research), not

acreage of “costal land” lost. Massachusetts, 549 U.S. at 522.

To put matters pointedly: the injury sufficient to establish

standing need not suffice to establish endangerment as well.

Congress was of course free to circumvent this close

cause-health effect nexus by devising a separate provision for

GHG regulation, much as it did for stratospheric ozone, but it

did no such thing. And nothing in the legislative history

suggests that Congress has deviated from this status quo.

8

The plain language of the CAA only underscores the

Act’s non-applicability to GHGs insofar as it requires the

harm be of the sort “reasonably [] anticipated to endanger.”

42 U.S.C. §7251(a)(1) — a term we know to have a discrete

meaning.

C.

In the present case, this Court had “little trouble”

disposing of the argument that the “PSD program is

specifically focused solely on localized air pollution” because

it is “quite clear . . . the PSD program was intended to protect

against precisely the types of harms caused by greenhouse

gases.” CRR Slp. Op. 62–63 (emphasis added).

Massachusetts notwithstanding, this statement is a curious

thing in light of the uncontradicted legislative history just

discussed.2 So too is the court’s reliance on the statutory text,

particularly its finding that “the CAA expressly provides that

effects on ‘welfare’ means ‘effects on . . . weather . . . and

climate.’ ” Slp. Op. 62-63 (citing 42 U.S.C. § 7602(h)).

As a textual matter, there is nothing “quite clear” about it.

The Supreme Court has declared that GHGs like CO2 are

pollutants within the meaning of the Act. Under the CAA,

however, EPA can regulate a pollutant only if the

administrator finds that the GHG causes or contributes to “air

pollution which may reasonably be anticipated to endanger

public health or welfare.” 42 U.S.C. §7251(a)(1) (emphasis

added). But in locating the CAA’s conception of “harm” in §

7602(h), the definition of “welfare,” and not §7251(a)(1)

2

As noted, the weather and climate issues targeted by the

CAA involve direct, deleterious, localized effects caused by

polluted air people breathe or suspended pollutants that may be

deposited on land and crops by precipitation.

9

generally, this court effectively skirted the operative statutory

language — “may reasonably be anticipated” — and rendered

it nugatory. This was in error. Section 7602(h) defines only

the potential objects of harm; the “reasonably be anticipated”

language of §7251(a)(1) supplies the requisite nexus between

the pollutant and the objects of its harm. The two provisions

must be read together if the statute is to be interpreted

faithfully. To put matters another way, the “may reasonably

be anticipated” language must do some analytical work in the

endangerment determination lest it be deemed surplusage.

See, e.g., Conference of State Bank Supervisors v. Conover,

715 F.2d 604, 627 (D.C. Cir. 1983) (“[I]n construing a statute,

we ‘are obliged to give effect, if possible, to every word

Congress used.’ ” (quoting Reiter v. Sonotone Corp., 442 U.S.

330, 339 (1979))). And in view of the CAA’s legislative

history, the nature of that work is clear.

In order to reasonably anticipate that a pollutant will

contribute to air pollution that endangers public health or

welfare, the Agency would have to conclude that pollution

created by CO2 or another GHG is a reasonably direct cause

of the damage to public health and welfare. To find that CO2

may ultimately endanger public health and welfare because

sea levels will rise tells us nothing about whether CO2

concentrations in the ambient air directly harm public health

and welfare. The ingredients of a Killer Smog are few and

specific; the process through which an air inversion traps

particulate matter close to the ground is well understood.

With both there is a direct correlation between reducing the

concentration of the pollutant and reducing the negative

health effects. Questions of public health impacts from air

pollution have consistently been based on the direct — that is,

inhalational — effects of exposure to the pollutant. See, e.g.,

Joint Opening Brief of Non-State Petitioners and Supporting

Intervenors at 58, Coal. for Responsible Regulation v. EPA,

10

No. 09-1322 (May 20, 2011); NRDC, Inc. v. EPA, 902 F.2d

962, 973 (D.C. Cir. 1990) (concluding that EPA may not

consider the health effects of increased unemployment when

setting new health-based NAAQS)

In contrast, any harm to human health and welfare flowing

from climate change comes at the end of a long speculative

chain. The dissent in Massachusetts pointed out that EPA had

described in great detail the scientific uncertainty that

precluded even forming a judgment as to whether greenhouse

gases endanger public welfare. See 549 U.S. at 553–55

(Scalia, J., dissenting). In that earlier defense of its refusal to

form a judgment, EPA explained how predicting climate

change involved a “complex web of economic and physical

factors,” including:

[o]ur ability to predict future global anthropogenic

emissions of GHGs and aerosols; the fate of these

emissions once they enter the atmosphere (e.g., what

percentage are absorbed by vegetation or are taken up by

the oceans); the impact of those emissions that remain in

the atmosphere on the radiative properties of the

atmosphere; changes in critically important climate

feedbacks (e.g., changes in cloud cover and ocean

circulation); change in temperature characteristics (e.g.,

average temperatures, shifts in daytime and evening

temperatures); changes in other climatic parameters (e.g.,

shifts in precipitation, storms); and ultimately the impact

of such changes on human health and welfare (e.g.,

increases or decreases in agricultural productivity, human

health impacts).

Id. If there can be this much logical daylight between the

pollutant and the anticipated harm, there is nothing EPA is not

authorized to do. If this finding is valid, in a world where six

11

degrees of separation is the compass of all humankind, the

right endangerment finding would allow EPA to rule the

world. But as this Court has noted before, EPA’s authority to

regulate is constrained, not enlarged, by the relationship of the

term “will endanger” to other sections of the CAA. See Ethyl

v. EPA, 541 F.2d 1, 29 (D.C. Cir. 1976) (en banc).

Of course, nothing here should be taken to imply that a

particular GHG does not contribute to climate change. I mean

only to suggest that a pollutant might contribute to the

nebulous mélange of potential drivers of climate change

without having any direct, deleterious impact within the

meaning of the CAA. I emphasize too that this is not a

problem with science. This is a problem of statutory

interpretation. Climate change, with its geologic timeframe

and its many uncertainties and imponderables, is and will

probably remain a subject of some controversy. EPA finds

the science sufficiently convincing for its purposes and it is

entitled to a certain amount of deference on questions related

to its technical expertise. But it is not necessary to quibble

with the science of climate change to conclude that the

endangerment finding fails on textual and logical terms.

There is simply a point at which a difference in degree

becomes a difference in kind and we have passed this point

many times over in the course of this tortured litigation. The

Supreme Court, however, has refused to recognize as much

for tailpipe emissions.

II.

A.

But we need not follow Massachusetts off the proverbial

cliff and apply its reasoning to the unique Title V and PSD

provisions not considered in that case. The cascading layers

12

of absurdity that flow from that interpretive exercise make

clear that the plain language of the CAA compels no such

result. As EPA’s own rulemaking documents have so

unabashedly explained:

To apply the statutory PSD and title V applicability

thresholds literally to sources of GHG emissions would

bring tens of thousands of small sources and

modifications into the PSD program each year, and

millions of small sources into the title V program. These

extraordinary increases in scope of the permitting

programs would mean that the programs would become

several hundred-fold larger than what Congress appeared

to contemplate.

PSD and Title V Greenhouse Gas Tailoring Rule; Final Rule,

75 Fed. Reg. 31,514, 31,533 (Jun. 3, 2010) (“Final Tailoring

Rule”). Completely oblivious to the irony, EPA added:

For our authority to take this action, we rely in part on the

“absurd results” doctrine, because applying the PSD and

title V requirements literally (as previously interpreted

narrowly by EPA) would not only be inconsistent with

congressional intent concerning the applicability of the

PSD and title V programs, but in fact would severely

undermine congressional purpose for those programs.

Id. at 31,541–42. And again:

[I]n this case because a literal reading of the PSD and

title V applicability provisions results in insurmountable

administrative burdens. Those insurmountable

administrative burdens — along with the undue costs to

sources — must be considered “absurd results” that

13

would undermine congressional purpose for the PSD and

title V programs.

Id. at 31,547.

In precincts outside Washington, D.C., this litany might

cause a regulator to pause and consider whether results so at

odds with Congressional presuppositions could ever be

justified as falling within the literal meaning of an enactment.

EPA, however, proposes that the absurd result can be easily

eliminated by ramping up and gradually phasing in the

requirements. Faced with the choice of reconsidering the

legitimacy of an endangerment finding that sets in motion

such a cluster of chaos or rewriting the statute, the agency has

blithely done the latter. This is an abuse of the absurdity and

administrative necessity doctrines as neither can be invoked to

preempt legislative prerogatives. Permitting a statute “to be

read to avoid absurd results allows an agency to establish that

seemingly clear statutory language does not express the

‘unambiguously expressed intent of Congress,’ ” but it does

not grant the agency “a license to rewrite the statute.” Mova

Pharmaceuticals v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir.

1998).

But that is not the worst of it. The real absurdity —

apparently as invisible to the EPA as the San Gabriels once

were to me — cannot be cured by phase in, no matter how

subtly Byzantine. The real absurdity is that this

unprecedented expansion of regulatory control, this epic

overreach, may very well do more damage to the wellbeing of

Americans than GHGs could ever do.3

3

See, e.g., Joint Reply Br. of Non-State Petitioners and

Supporting Intervenors at *1, No. 09-1322 (Nov. 14 2011) (“Nor

does [EPA] dispute that the new rules will impose massive burdens

on a struggling economy, or that its program of vehicle standards

14

B.

A second, more elementary consideration counsels against

the mechanical application of Massachusetts’s tailpipe

emissions determination to these distinct CAA provisions:

deference to Congress.

As articulated in Food & Drug Administration v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000), the

Supreme Court’s “major questions” canon gives form to the

judicial intuition so strongly implicated here: Congress should

not be presumed to have deferred to agencies on questions of

great significance more properly resolved by the legislature.

If there was ever a regulation in recent memory more befitting

such a presumption than the present, I confess I do not know

of it.

On familiar facts, the Supreme Court in Brown &

Williamson rebuffed the FDA’s expansionist effort to bring

tobacco products within its regulatory ambit. The agency’s

regulation rested on a strained interpretation of the Food,

Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., in which it

defined nicotine as a “drug” and cigarettes and smokeless

tobacco as “combination products” used to deliver nicotine to

the body. See Brown & Williamson, 529 U.S. at 125–27.

Applying Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984), the Court first considered the

statutory structure. “[I]f tobacco products were within the

FDA’s jurisdiction,” the majority concluded, the normal

operation of the “Act would require the FDA to remove them

from the market entirely,” and this would “contradict

will affect global mean temperatures by no more than 0.01 degree

Celsius by 2100”).

15

Congress’ clear intent as expressed in its more recent,

tobacco-specific legislation.” Brown & Williamson, 359 U.S.

at 143. As the present case confirms, such absurdity is all but

inevitable where an agency attempts to regulate that which

“simply do[es] not fit” within its regulatory scheme. Id. The

Court next considered Congress’s 35 year history of tobacco-

specific legislation, finding it “clear” that this “legislation has

effectively ratified the FDA’s previous position that it lacks

jurisdiction to regulate tobacco.” Id. at 156.

The Court then closed its lengthy Chevron discussion

with an appeal to first principles. The “inquiry into whether

Congress has directly spoken to the precise question at issue,”

the Court explained, “is shaped, at least in some measure, by

the nature of the question presented.” Id. at

159. Chevron deference operates on the assumption “that a

statute’s ambiguity constitutes an implicit delegation,” but

this tenuous fiction need not hold true in every

situation. Id. “In extraordinary cases,” the Court went on,

“there may be reason to hesitate before concluding that

Congress has intended such an implicit

delegation.” Id. (referencing Stephen Breyer, Judicial Review

of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370

(1986) (“A court may also ask whether the legal question is

an important one. Congress is more likely to have focused

upon, and answered, major questions, while leaving

interstitial matters to answer themselves in the course of the

statute’s daily administration”)).4

4

MCI Telecommunications Corporation v. AT&T Co., 512

U.S. 218 (1994), a case the Brown & Williamson Court found

“instructive,” Brown & Williamson, 529 U.S. at 160, had advanced

a similar logic. In concluding Congress had spoken to the meaning

of the term “modify” as it appears in § 203(b) of the

Communications Act of 1934, the Court rejected FCC’s far more

expansive interpretation. The Court assumed in dicta that it was

16

Declaring Brown & Williamson “hardly [the] ordinary

case,” the Court reasoned:

Contrary to its representations to Congress since 1914,

the FDA has now asserted jurisdiction to regulate an

industry constituting a significant portion of the

American economy. In fact, the FDA contends that,

were it to determine that tobacco products provide no

“reasonable assurance of safety,” it would have the

authority to ban cigarettes and smokeless tobacco

entirely. Owing to its unique place in American

history and society, tobacco has its own unique

political history. Congress, for better or for worse, has

created a distinct regulatory scheme for tobacco

products, squarely rejected proposals to give the FDA

jurisdiction over tobacco, and repeatedly acted to

preclude any agency from exercising significant

policymaking authority in the area. Given this history

and the breadth of the authority that the FDA has

asserted, we are obliged to defer not to the agency's

expansive construction of the statute, but to Congress’

consistent judgment to deny the FDA this power.

Brown & Williamson, 529 U.S. at 159-60.

In view of the language, structure, and history of the

CAA, I am simply unable to distinguish this logic from the

present case in any meaningful way. To the contrary, with

“highly unlikely that Congress would leave the determination of

whether an industry will be entirely, or even substantially, rate-

regulated to agency discretion — and even more unlikely that it

would achieve that through such a subtle device as permission to

‘modify’ rate-filing requirements.” MCI, 512 U.S. at 231. Certainly

the same might be said here as well.

17

only the slightest of modifications one could rework the

above text to apply to GHG emissions.5

Although the Massachusetts Court distinguished Brown

& Williamson, it did so only in the context of tailpipe

emissions. Its reasoning does not extend to Title V and the

PSD program.

In the Court’s view, Brown & Williamson had “found

critical at least two considerations that have no counterpart in

[Massachusetts].” 549 U.S. at 531. First, whereas the

regulation of tobacco under the FDCA would have necessarily

led to a ban on tobacco products — an outcome that clashed

with the “common sense” intuition that Congress never meant

to remove those products from circulation — the expansion of

EPA’s “jurisdiction would lead to no such extreme measures

5

Perhaps:

Contrary to its representations in Massachusetts v. EPA, the

EPA has now asserted jurisdiction to regulate industries

constituting a significant portion of the American economy.

In fact, the EPA contends that, because greenhouse gases

can be regulated as tailpipe emissions, it is obligated to

regulate all stationary sources at admittedly “absurd”

levels. Owing to its ubiquitous place in the planet’s life

cycle, greenhouse gases have their own unique political

history. Congress, for better or for worse, has declined to

create a distinct regulatory scheme for greenhouse gases,

squarely rejected proposals to give the EPA jurisdiction

over greenhouse gases, and repeatedly acted to preclude

any agency from exercising significant policymaking

authority in the area. Given this history and the breadth of

the authority that the EPA has asserted, we are obliged to

defer not to the agency's expansive construction of the

statute, but to Congress’ consistent judgment to deny the

EPA this power.

18

[because] EPA would only regulate emissions” and “there is

nothing counterintuitive to the notion that EPA can curtail the

emission of substances that are putting the global climate out

of kilter.” Id. But the Court spoke too soon. In the present

litigation, EPA argued — and a Panel of this Court readily

agreed — that in regulating tailpipe emissions under 42

U.S.C. § 7521, it is obligated to regulate stationary sources

under Title V and the PSD program as well. As a threshold

matter, the Massachusetts Court never considered these far-

reaching effects. It limited its brief discussion on the merits

to the tailpipe emissions question squarely before it. In this

way, the Court never considered the differing ways in which

the CAA regulates tailpipes and stationary sources.

With tailpipe emissions, the inclusion of greenhouse

gasses within the term “air pollutant” does not directly expand

or contract the universe of vehicles and engines subject to the

new standards. Consequently, the regulation’s impact will

fall primarily on those manufacturers already complying with

existing emission requirements. And even then, the Court

explained, EPA “would have to delay any action ‘to permit

the development and application of the requisite technology,

giving appropriate consideration to the cost of

compliance.’ ” Massachusetts, 549 U.S. at 531 (quoting

§ 7521(a)(2)). Not so with the regulation of stationary

sources. Insofar as 42 U.S.C. § 7479(1) defines “major

emitting facility” to include those facilities with the “potential

to emit” either 100 or 250 “tons per year or more of any air

pollutant,” the statutory term is necessarily tied to CAA’s

jurisdictional scope. Inescapably, then, the regulation of

greenhouse gasses as “air pollutants” will radically expand the

universe of covered entities far beyond Congress’s

intentions. EPA’s decidedly extra-textual Tailoring Rule only

confirms the ludicrousness of this result. Nor can it be said

that the statutory safeguards operate in the same way as §

19

7521(a)(2). Permitting authorities may well be able to

determine on a case-by-case basis what constitutes the “best

available control technology” for a particular emitting facility,

42 U.S.C. § 7479(3), but this is of little consolation for the

small business owner who previously fell outside the CAA.

At bottom, this outcome clashes with the “common sense”

understanding that Congress would not have intended such a

broad, unchecked expansion of the CAA to potentially

millions of businesses from all walks of industry. The

Supreme Court in Massachusetts simply did not have

occasion to consider this absurd and “counterintuitive”

outcome, but we do — and we must.

Second, the Court determined that the “unbroken series

of congressional enactments” referenced in Brown &

Williamson “made sense only if adopted ‘against the backdrop

of the FDA’s consistent and repeated statements that it lacked

authority under the FDCA to regulate tobacco.’ ”

Massachusetts, 549 U.S. at 531.6 By contrast, EPA had “not

identified any congressional action that conflicts in any way

with the regulation of greenhouse gases from new motor

vehicles.” Id. And even if it had, “Congress could not have

acted against a regulatory ‘backdrop’ of disclaimers of

regulatory authority” because “EPA had never disavowed the

authority to regulate greenhouse gases, and in 1998 it in fact

affirmed that it had such authority.” Id. When read in

context, however, it is clear that the Court’s reasoning was

building toward a wholly unspectacular point: because EPA’s

legislative history failed to establish congressional intent with

6

The suggestion here seems to be that Congress’s decision to

regulate tobacco products would not, by itself, evince its intent to

proscribe agencies from doing the same. Doing so in light of

FDA’s statements, however, had the effect of implicitly codifying

the agency’s long-held view.

20

the same weight and precision as Brown & Williamson, it did

not justify “read[ing] ambiguity into a clear statute.” Id.

That logic is inapplicable here. In the absence of lexical

clarity — which the Court had found in in CAA’s “sweeping

definition of ‘air pollutant,’ ” id. at 528 — we need legislative

history and other indicia of congressional intent to inform our

understanding of how GHGs are to be regulated under other

CAA provisions.7

The Massachusetts Court’s effort to distinguish Brown &

Williamson is thus unavailing where we deal not with the

definitional scope of “any pollutant” and tailpipe emissions,

but the particular dangers Congress sought to combat in

enacting Title V and the PSD program. When read in

conjunction with the CAA’s history, structure, and language,

the intuitive logic of the “major questions” doctrine makes

clear that the Panel erred in extending Massachusetts.

7

Consider the role of NAAQS in this regulatory system. EPA

in Massachusetts had observed that NAAQS were established to

“address air pollution problems that occur primarily at ground

level” as well as “concentrations of substances in the ambient air

and the related public health and welfare problems.”

Massachusetts, 549 U.S. at 558–59 (Scalia, J., dissenting). EPA

thus reasoned that the regulation of the buildup of CO2 in the upper

reaches of the atmosphere — the process alleged to cause global

climate change — was not akin to regulating the concentration of a

substance that is polluting the air and was “beyond the scope of

CAA’s authorization to regulate.” Id. In other words, EPA

maintained that had Congress intended the CAA to regulate

greenhouse cases and global climate change, it would have

provided some better tool than NAAQS. That defense — offered in

response to a demand to regulate tailpipe emissions — applies with

even greater potency to Title V and the PSD program. In fact,

although EPA now claims it is authorized to regulate greenhouse

gases and global climate change, the agency acknowledges that the

regulatory framework is as ill-suited to the task as ever.

21

Congress simply did not intend for EPA to convert the “Clean

Air Act” to the “Warm Air Act” writ large. But that is exactly

what the federal courts have done.

As the Chief Justice observed in his Massachusetts

dissent, impatience is not a juridical principle that can be

sustained under our constitutional framework. See

Massachusetts, 549 U.S. at 535–36 (Roberts, C.J., dissenting).

It certainly fares no better as a default measure of institutional

choice under Chevron. As Massachusetts recognized, an

agency can only exercise the authority Congress has delegated

to it. See 549 U.S. at 534–35 (noting that EPA must “ground

its reasons for action or inaction in the statute” and “exercise

its discretion within defined statutory limits.”). Absurdity can

never figure as an adequate substitute for authority in this

threshold assessment. Nor can absurdity cure the agency’s

failure to establish that the statute unambiguously compels its

interpretation or that its interpretation, though discretionary, is

actually consistent with statutory text, structure, and purposes.

The agency seeks to avoid these pesky constraints here by

invoking Massachusetts, but Article III judges cannot be a

legitimate source of legislative authority. By deferring to the

distorted claim of delegation advanced here, this Court has

transformed Chevron from a useful, albeit accidental,

touchstone into an idol to which we surrender our

constitutional faith.

III.

In rejecting State Petitioners’ challenge to the Tailoring

Rule for want of standing, the Panel invoked that famed

preceptor of American civics, Schoolhouse Rock, to great

effect. Slp. Op. at 79. (“As a generation of schoolchildren

knows, ‘by that time, it’s very unlikely that [a bill will]

become a law. It’s not easy to become a law.’ ”). I certainly

22

do not quarrel with such dispositive authority. Lawmaking is

neither easy nor certain. In an ordinary case, the mere

possibility of “corrective legislation” will not establish that

redress is “likely, as opposed to merely speculative.” Lujan,

504 U.S. at 561. But it bears repeating that this is not an

ordinary case. Where the choice is between non-action or a

confessedly “absurd” regulation poised to impress countless

billions of dollars in costs on American industry, we have

transcended the realm of the speculative. For once, the

comparison with Massachusetts is apt. The Supreme Court

found standing on the basis of an estimated rise in sea level of

20 to 70 centimeters by the year 2100, see Massachusetts, 549

U.S. at 542 (Roberts, C.J, dissenting) — a prediction based

almost entirely on conjecture. Is it any more speculative to

say that specific projections of billions of dollars in actual

regulatory costs would not suffice to compel Congress to act?

The Panel’s alternative contention fares better: because

Congress could remedy the issue in countless ways, not all of

which inure to State Petitioners’ benefit, the inquiry is

“inherently speculative.” See Op. at 79. This argument

benefits from the genuine uncertainty in Congress over what,

if any, role EPA should play in GHG regulation. But therein

lies a frighteningly obtuse logic. If EPA actions are ultra

vires precisely because disagreement on the Hill prevented

Congress from altering the status quo and authorizing such

regulation, how then can the very same deadlock be used to

defeat Petitioners’ standing to challenge the Rule through

which EPA effectuates its absurdist scheme? The Court

cannot have it both ways.

At bottom, bad decisions make bad law. In denying

rehearing en banc, this Court has read Massachusetts to its

illogical ends and it is American industry that will have to

pay. That this Court did so is unsurprising, but certainly not

23

fated. Massachusetts does not compel this outcome for the

PSD and Title V provisions. Had this Court interrogated its

own assumptions and yielded not to Massachusetts’s telos but

sound constitutional principles, it would have found that the

matter properly belongs before Congress, not courts or

agencies. As Schoolhouse Rock long ago explained:

Ring one, Executive,

Two is Legislative, that’s Congress.

Ring three, Judiciary.

See it’s kind of like my circus, circus.8

And what a circus it is.

For these reasons, I respectfully dissent from the denial

of rehearing en banc.

8

“Three Ring Government,” Schoolhouse Rocks, available at

http://www.schoolhouserock.tv/ThreeRing.html.

KAVANAUGH, Circuit Judge, dissenting from the denial

of rehearing en banc:

This case is plainly one of exceptional importance. A

decision in either direction will have massive real-world

consequences. The U.S. Chamber of Commerce describes the

EPA regulations at issue here as “the most burdensome,

costly, far-reaching program ever adopted by a United States

regulatory agency.” Petition for Rehearing En Banc at 1. On

the other hand, EPA issued these regulations to help address

global warming, a policy issue of major long-term

significance to the United States. Put simply, the economic

and environmental policy stakes are very high.

Of course, our role is not to make the policy choices or to

strike the balance between economic and environmental

interests. That job is for Congress and the President when

considering and enacting legislation, and then as appropriate

for the Executive Branch – here, EPA, under the ultimate

supervision of the President – when exercising its authority

within statutory constraints. Our job as a court is more

limited: to ensure that EPA has acted within the authority

granted to it by Congress. In this case, I conclude that EPA

has exceeded its statutory authority. I respectfully disagree

with the panel opinion’s contrary conclusion, and given the

overall importance of the case, I respectfully dissent from the

denial of rehearing en banc.

I

A

This case concerns EPA’s implementation of the

Prevention of Significant Deterioration provisions of the

Clean Air Act. The Prevention of Significant Deterioration

program – which is codified in Sections 7470 to 7479 of Title

42 – is designed to maintain state and local compliance with

2

the National Ambient Air Quality Standards, known as the

NAAQS. The NAAQS are currently established for six air

pollutants: carbon monoxide, lead, nitrogen dioxide, ozone,

particle pollution, and sulfur dioxide. As relevant here, the

Prevention of Significant Deterioration statute requires

stationary facilities that emit certain “air pollutants” to obtain

permits before beginning new construction. See 42 U.S.C.

§§ 7475(a)(1), 7479(1). To obtain a permit, the facility must

undergo a lengthy, costly process to analyze the new

construction’s impact on air quality and to try to demonstrate

its compliance with the relevant emissions limits.

A central question in this case is how to construe the term

“air pollutant” for purposes of this statutory permitting

requirement. In particular, the question is whether the term

“air pollutant” here covers not just the NAAQS pollutants,

which can cause breathing problems or other health issues,

but also greenhouse gases such as carbon dioxide, which

contribute to global warming. Under the broader

interpretation of “air pollutant” that encompasses greenhouse

gases, a far greater number of facilities would fall within the

Prevention of Significant Deterioration program and have to

obtain pre-construction permits. That in turn would impose

significantly higher costs on businesses and individuals that

are building new commercial or residential property.

In considering a different Clean Air Act program targeted

at motor vehicle emissions, the Supreme Court said that the

term “air pollutant” meant “all airborne compounds of

whatever stripe,” which included greenhouse gases such as

carbon dioxide. Massachusetts v. EPA, 549 U.S. 497, 529

(2007). But all parties here, including EPA, agree that the

Massachusetts v. EPA interpretation of the term “air

pollutant” cannot control in this case, for purposes of this very

3

different Clean Air Act program for stationary facilities.

Rather, as the parties agree, we must look to the text and

context of the Prevention of Significant Deterioration statute

to determine what “air pollutant” covers here.

Looking at the relevant statutory text and context, there

would initially appear to be two plausible interpretations of

the term “air pollutant” for purposes of the Prevention of

Significant Deterioration statute: (i) more broadly, an airborne

compound that is deemed harmful and is regulated by EPA in

any Clean Air Act program, which would include greenhouse

gases such as carbon dioxide; or (ii) more narrowly, the six air

pollutants that are regulated by EPA in setting and enforcing

the NAAQS, which would cover carbon monoxide, lead,

nitrogen dioxide, ozone, particle pollution, and sulfur dioxide,

but would not include greenhouse gases such as carbon

dioxide.

EPA chose the broader interpretation of “air pollutant,”

thereby greatly expanding the reach of the Prevention of

Significant Deterioration statute. But that broader

interpretation has a glaring problem, as EPA itself recognized.

In the context of the Prevention of Significant Deterioration

statute, EPA’s broader interpretation would not mesh with

other provisions of the statute and would lead to absurd

results. That’s because the Prevention of Significant

Deterioration statute requires pre-construction permits for

facilities with the potential to emit more than 250 tons per

year (or, for some facilities, 100 tons per year) of any covered

pollutant. See 42 U.S.C. §§ 7475(a)(1), 7479(1). That would

be a very low trigger for emissions of greenhouse gases

because greenhouse gases are emitted in far greater quantities

than the NAAQS pollutants. As a result, the low trigger

would mean a dramatically higher number of facilities would

4

fall within the program and have to obtain pre-construction

permits.

In an unusual twist, EPA openly acknowledged the

unreasonableness – indeed, the absurdity – caused by its

interpretation of the statute. If the Prevention of Significant

Deterioration program were interpreted to require pre-

construction permits based on emissions of greenhouse gases,

EPA candidly stated that the result would be “so contrary to

what Congress had in mind – and that in fact so undermines

what Congress attempted to accomplish with the PSD

requirements – that it should be avoided under the ‘absurd

results’ doctrine.” 74 Fed. Reg. 55,292, 55,310 (Oct. 27,

2009).

But faced with those absurd consequences from the

broader interpretation of the statute, EPA surprisingly did not

choose the seemingly obvious option of adopting the narrower

and more sensible interpretation of the term “air pollutant” for

the Prevention of Significant Deterioration statute – the

interpretation limited to NAAQS air pollutants. Instead, EPA

plowed ahead with the broader interpretation. And then, to

try to deal with the absurd repercussions of that interpretation

for the Prevention of Significant Deterioration statute, EPA

re-wrote the very specific 250-ton trigger in the permitting

requirement of the statute, unilaterally raising that trigger for

greenhouse gas emissions from 250 tons to 100,000 tons – a

400-fold increase. See 75 Fed. Reg. 31,514 (June 3, 2010).

EPA believed that re-writing the statute’s permitting-triggers

provision in this way would reduce the number of facilities

that would require pre-construction permits and thereby

“tailor” the absurdity – that is, alleviate some of the absurdity

5

caused by interpreting “air pollutant” to cover greenhouse

gases. 1

This is a very strange way to interpret a statute. When an

agency is faced with two initially plausible readings of a

statutory term, but it turns out that one reading would cause

absurd results, I am aware of no precedent that suggests the

agency can still choose the absurd reading and then start re-

writing other perfectly clear portions of the statute to try to

make it all work out. And just recently, the Supreme Court

reminded the Executive Branch and the lower courts that this

is not the proper way to interpret a statute: Instead of

“reading new words into the statute” to avoid absurd results,

as the Government had urged in that case, the Court said that

the statute should be interpreted so that “no absurdity arises in

the first place.” Kloeckner v. Solis, No. 11-184, slip op. at 13

(U.S. 2012).

Even limited to this case alone, the practical implications

of accepting EPA’s approach are obviously major. And if this

case stands as a precedent that influences other agency

decisionmaking, the future consequences likewise could be

significant: Agencies presumably could adopt absurd or

otherwise unreasonable interpretations of statutory provisions

and then edit other statutory provisions to mitigate the

1

At the same time, EPA reserved the right to ratchet the

trigger all the way back down to 250 tons, thereby bringing more

and more facilities under the program at EPA’s unilateral

discretion. EPA’s assertion of such extraordinary discretionary

power both exacerbates the separation of powers concerns in this

case and underscores the implausibility of EPA’s statutory

interpretation. Put simply, the statute cannot be read to grant

discretion to EPA to raise or lower the permitting triggers as EPA

sees fit.

6

unreasonableness. Allowing agencies to exercise that kind of

statutory re-writing authority could significantly enhance the

Executive Branch’s power at the expense of Congress’s and

thereby alter the relative balance of powers in the

administrative process. I would not go down that road.

B

In my view, the statutory issue here is reasonably

straightforward. The Prevention of Significant Deterioration

statute’s definition of “major emitting facility” subjects a

facility to the permitting requirement based on the facility’s

emissions of “air pollutants.” See 42 U.S.C. §§ 7475(a)(1),

7479(1). In the context of the Prevention of Significant

Deterioration program as a whole, it seems evident that the

term “air pollutant” refers to the NAAQS air pollutants.

To begin with, as explained above, interpreting “air

pollutant” in this context to refer to the NAAQS air pollutants

would avoid the absurd consequences that EPA’s broader

interpretation creates – namely, the exponential increase in

the number of facilities that would be required to obtain pre-

construction permits. That single point alone provides

dispositive support for the narrower, NAAQS-specific

interpretation. See, e.g., Taniguchi v. Kan Pacific Saipan,

Ltd., 132 S. Ct. 1997, 2004-05 (2012) (statutory context

supports narrower rather than broader reading of statutory

term).

Moreover, other provisions in the Prevention of

Significant Deterioration statute likewise plainly use the term

“air pollutant” to refer to the NAAQS air pollutants. The

Prevention of Significant Deterioration program is codified in

Sections 7470 to 7479 of Title 42. Of relevance here, Section

7473 sets guidelines for areas designated as in attainment of

7

the NAAQS and requires that the “concentration of any air

pollutant” in those areas not exceed certain concentrations

permitted by the NAAQS. 42 U.S.C. § 7473(b)(4). The term

“air pollutant” in Section 7473(b)(4) necessarily refers to the

NAAQS air pollutants. In addition, several other provisions

in the Prevention of Significant Deterioration statute similarly

refer to Section 7473(b)(4)’s maximum concentrations for

NAAQS pollutants. Each of those references thus also

necessarily employs a NAAQS-specific use of the term “air

pollutant.” See, e.g., 42 U.S.C. § 7473(c)(1) (listing

exclusions from “the maximum allowable increases in

ambient concentrations of an air pollutant”); § 7474(a)(B)

(redesignations cannot cause “concentrations of any air

pollutant” to exceed the maximum); see also § 7475(a)(3)(A)

(facility may not cause air pollution in excess of “maximum

allowable concentration for any pollutant”).

So it’s clear that a variety of provisions in the Prevention

of Significant Deterioration statute use “air pollutant” to refer

to a NAAQS air pollutant. And we presume that, unless

otherwise indicated, the term “air pollutant” is used the same

way throughout the Prevention of Significant Deterioration

statute – and here, we have no reason to conclude otherwise.

See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (“identical

words used in different parts of the same statute are generally

presumed to have the same meaning”).

By contrast, when Congress wanted, in the Prevention of

Significant Deterioration statute, to refer to a broader set of

pollutants than the NAAQS pollutants, it did so expressly.

Thus, a facility that requires a pre-construction permit

because of its emissions of NAAQS pollutants must employ

the best available control technology for emissions not just of

“air pollutants” but of “each pollutant subject to regulation

8

under this chapter,” which – now that EPA has regulated

greenhouse gases in other parts of the Clean Air Act – does

include greenhouse gases. 42 U.S.C. § 7475(a)(4). By its

terms, Section 7475(a)(4) thus applies to greenhouse gases,

not just the NAAQS. Importantly, however, Congress did not

employ the language “each pollutant subject to regulation

under this chapter” in the statutory provision setting forth

which facilities must obtain a pre-construction permit, the

provision at issue in this case. And the policy distinction

drawn in Section 7475(a)(4) is rather intuitive: Congress

designed the statute’s permitting requirement based on

facilities’ NAAQS emissions, but, once those facilities are

subject to the permitting requirement, they must also meet a

range of other minimum environmental standards. 2

The overall objectives of the Prevention of Significant

Deterioration statute also suggest that “air pollutant” refers to

the NAAQS air pollutants for purposes of the permitting

requirement. Importantly, the Prevention of Significant

Deterioration statute applies only in areas that have met the

NAAQS – that is, areas that do not have excessive emissions

of the NAAQS air pollutants. If the purpose of this statute

were in part to address global warming by requiring pre-

construction permits for facilities that emit greenhouse gases,

as EPA’s reading suggests, why would the statute target the

construction of facilities only in areas that are in compliance

with the NAAQS – and not elsewhere in the United States?

2

Section 7479(1) – the definition of “major emitting facility”

– speaks of “any” air pollutant. But the word “any” just begs the

question of what the term “air pollutant” covers in the Prevention of

Significant Deterioration program. It’s either any air pollutant

regulated under the Clean Air Act or any of the NAAQS air

pollutants.

9

That would make little sense, which in turn further suggests

that EPA has misread the statute.

Moreover, as its name indicates, the Prevention of

Significant Deterioration statute is designed primarily to

prevent “deterioration” of an attainment area’s air quality.

The relevant air quality standards that define whether an area

is in attainment are the NAAQS. In a statute expressly linked

to the NAAQS and designed to ensure that air quality does

not “deteriorate” with respect to the NAAQS, it is somewhat

illogical to read the statute as requiring pre-construction

permits simply because a facility may emit substances that

will not affect attainment of the NAAQS. Under EPA’s

approach, a facility could be covered by the permitting

requirement even if it emits no NAAQS air pollutants at all.

That, too, makes little sense and suggests that EPA has

misread the statute.

A separate canon of interpretation further demonstrates

that EPA’s broad reading of the term “air pollutant” is at odds

with Congress’s design. By requiring a vastly increased

number of facilities to obtain pre-construction permits, EPA’s

interpretation will impose enormous costs on tens of

thousands of American businesses, with corresponding effects

on American jobs and workers; on many American

homeowners who move into new homes or plan other home

construction projects; and on the U.S. economy more

generally. Yet there is literally no indication in the text or

legislative record that Members of Congress ever

contemplated – much less intended – such a dramatic

expansion of the permitting requirement of the Prevention of

Significant Deterioration statute. Courts do not lightly

conclude that Congress intended such major consequences

absent some indication that Congress meant to do so. See

10

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

159-61 (2000). Here, as elsewhere, we should not presume

that Congress hid an elephant in a mousehole.

For all of those reasons – the statutory text, the absurdity

principle, the statutory context as demonstrated by related

statutory provisions, the overarching objectives of the statute,

the major unintended consequences of a broader interpretation

– the Prevention of Significant Deterioration statute as a

whole overwhelmingly indicates that the permitting

requirement is based on emissions of the NAAQS air

pollutants.

And just to reiterate, the simple and absolutely

dispositive point in this case is the following: The broader

interpretation of “air pollutant” adopted by EPA produces

what even EPA itself admits are absurd consequences. When

an agency is faced with two plausible readings of a statutory

term, but one reading would cause absurd results, the agency

cannot choose the absurd reading. Here, therefore, EPA was

required to adopt the narrower and more sensible

interpretation of “air pollutant,” the interpretation limited to

the NAAQS pollutants. As the Supreme Court has said,

“interpretations of a statute which would produce absurd

results are to be avoided if alternative interpretations

consistent with the legislative purpose are available.” Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Such

an “alternative interpretation[] consistent with the legislative

purpose” is readily available here.

II

If that were the end of the analysis, I would not hesitate

to conclude that EPA had adopted an impermissibly broad

reading of the term “air pollutant” for purposes of the

11

permitting provision of the Prevention of Significant

Deterioration statute. But before reaching that conclusion

definitively, we need to consider whether EPA’s approach

was mandated by the Supreme Court’s decision in

Massachusetts v. EPA, 549 U.S. 497 (2007). In that case, the

Supreme Court considered the general statutory term “air

pollutant” as applied to a different aspect of the Clean Air Act

– the motor vehicle emissions program. The Court there

interpreted “air pollutant” very broadly to mean “all airborne

compounds of whatever stripe,” including greenhouse gases.

Id. at 529.

Does Massachusetts v. EPA dictate EPA’s broader

interpretation of “air pollutant” in the different context of the

Prevention of Significant Deterioration statute? The panel

opinion seemed to think so; its conclusion appears to have

been heavily if not dispositively influenced by Massachusetts

v. EPA. See, e.g., Coalition for Responsible Regulation, Inc.

v. EPA, 684 F.3d 102, 134, 136 (D.C. Cir. 2012). In my view,

however, the holding in Massachusetts v. EPA does not

control the result in this case. Indeed, as explained more fully

below, even EPA has concluded that Massachusetts v. EPA

does not control here. The decision in Massachusetts v. EPA

concerned the motor vehicle emissions program, a point the

Supreme Court expressly noted many times in its opinion.

The case did not purport to say that every other use of the

term “air pollutant” throughout the sprawling and multi-

faceted Clean Air Act necessarily includes greenhouse gases.

Each individual Clean Air Act program must be considered in

context. 3

3

As an analogy, take the familiar example of “no vehicles in

the park.” Assume that a court has decided that the term “vehicles”

generally includes bicycles, and that no bicycles are allowed in the

12

Importantly, in Massachusetts v. EPA, the Supreme Court

explicitly relied on the fact that the Clean Air Act’s

“capacious definition of ‘air pollutant,’” did not appear

“counterintuitive” or produce “extreme” consequences in the

context of motor vehicle emissions. 549 U.S. at 531-32. But,

as explained above, EPA’s capacious definition of “air

pollutant” is counterintuitive and does produce extreme

consequences in the context of the Prevention of Significant

Deterioration statute, as EPA itself acknowledges. Moreover,

in this case, an alternative and sensible interpretation of the

term “air pollutant” is readily discernible from the text,

context, and structure of the Prevention of Significant

Deterioration statute as a whole – namely, the NAAQS-

specific interpretation.

To be sure, as noted earlier, the same words used in

different parts of an Act are often construed to have the same

meaning. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005). If

that were an inflexible command, the Massachusetts v. EPA

interpretation of “air pollutant” would certainly control here

park. Next assume that another park regulation states that “all park

service vehicles must have reinforced gas tanks.” In that latter

regulation, context tells us that the term “vehicles” obviously does

not include bicycles. Bicycles are still vehicles in the abstract, but

the gas-tank regulation logically applies only to a specific subset of

vehicles (namely, motor vehicles).

So it is with “air pollutant” as used in different parts of the

Clean Air Act. Massachusetts v. EPA held that the term “air

pollutant” generally includes greenhouse gases. But that does not

mean that the term “air pollutant” can never be used in a narrower

sense. Greenhouse gases may qualify as “air pollutants” in the

abstract, but context tells us that the Prevention of Significant

Deterioration program uses the term “air pollutant” to refer only to

a subset of all air pollutants (namely, the NAAQS pollutants).

13

and throughout the entire Clean Air Act. But as the Supreme

Court recently reminded us – in the context of interpreting the

Clean Air Act – “the natural presumption that identical words

used in different parts of the same act are intended to have the

same meaning is not rigid and readily yields whenever there is

such variation in the connection in which the words are used

as reasonably to warrant the conclusion that they were

employed in different parts of the act with different intent.”

Environmental Defense v. Duke Energy Corp., 549 U.S. 561,

574 (2007) (internal quotation marks and ellipsis omitted).

As instructed by the Supreme Court, we must interpret

statutory terms based on their context and in light of the

statute as a whole, even if that approach on some occasions

means that the same term applies differently in different parts

of a statute. See, e.g., General Dynamics Land Systems, Inc.

v. Cline, 540 U.S. 581, 596-97 (2004) (term “age” has

different meanings within Age Discrimination in Employment

Act); United States v. Cleveland Indians Baseball Co., 532

U.S. 200, 212-13 (2001) (term “wages paid” has different

meanings within Social Security Act Amendments of 1939);

Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997) (term

“employee” has different meanings within Title VII).

The Supreme Court’s application of that interpretive

principle in Environmental Defense v. Duke Energy – a

decision issued on the same day as Massachusetts v. EPA – is

illuminating. There, the Supreme Court confronted the Clean

Air Act’s definition of a stationary source “modification.”

See 549 U.S. at 567-68. That term was relevant to both the

New Source Performance Standards program and the

Prevention of Significant Deterioration program. The Court

ruled that EPA could interpret the term “modification”

differently for each of those two Clean Air Act programs,

even though “the terms share a common statutory definition.”

14

Id. at 574. In so holding, the Court analyzed the two

programs’ different regulatory goals, noting that a “given

term in the same statute may take on distinct characters from

association with distinct statutory objects calling for different

implementation strategies.” Id.

The Supreme Court’s interpretive approach in

Environmental Defense v. Duke Energy – which recognizes

that the meaning of a statutory term in the Clean Air Act may

vary based on the particular program at issue – shows that the

Massachusetts v. EPA interpretation of “air pollutant” in the

context of the motor vehicle emissions program does not

necessarily require the same interpretation of “air pollutant”

in the context of the Prevention of Significant Deterioration

program. In Massachusetts v. EPA, the Supreme Court

emphasized that the regulation of greenhouse gases in the

motor vehicle emissions program would not be

“counterintuitive” and would not lead to any “extreme

measures.” 549 U.S. at 531. Greenhouse gas standards

would simply be added to the other regulations already

applicable to manufacturers of new motor vehicles, and any

such standards would take into account both cost and

technological feasibility. See 42 U.S.C. § 7521(a). By

contrast, the regulation of greenhouse gases in the Prevention

of Significant Deterioration program would be both

counterintuitive and extreme. Tens of thousands of

businesses and homeowners would be swept into the Clean

Air Act’s purview for the first time and hit with permitting

costs averaging $60,000, not to mention the additional costs

of trying to construct and maintain the facility in compliance

with the relevant emissions limits and technological

standards. See 75 Fed. Reg. 31,514, 31,556 (June 3, 2010).

In addition, the costs associated with a vastly expanded

permitting requirement would deter numerous projects from

15

even starting in the first place. The major differences

between the motor vehicle emissions program and the

Prevention of Significant Deterioration program thus neatly

fit the Environmental Defense v. Duke Energy paradigm of

“distinct statutory objects calling for different implementation

strategies.”

In reaching that conclusion, it bears mention that the

Clean Air Act is a very complicated statute encompassing

several distinct environmental programs. It is no surprise,

then, that the motor vehicle emissions program and the

Prevention of Significant Deterioration program are not the

only parts of the Act to employ a term like “air pollutant” in a

context-dependent way. For example, the visibility program

applies to facilities based on their emissions of “any

pollutant.” 42 U.S.C. § 7491(g)(7). In the context of that

program, EPA has interpreted the term “any pollutant” to

mean “any visibility-impairing pollutant,” which obviously

does not include greenhouse gases. 40 C.F.R. pt. 51, App. Y,

§ II.A. Similarly, the nonattainment program applies to areas

that have been designated as nonattainment “for any air

pollutant.” 42 U.S.C. § 7501(2). In the context of that

program, the term “air pollutant” is logically limited to the

NAAQS air pollutants, which are the only pollutants for

which an area can be designated as nonattainment. Id.

§ 7407(d)(1)(A). All of that simply underscores that a court

should exercise caution before reflexively importing the

interpretations applicable to one Clean Air Act program into a

distinct Clean Air Act program.

Any lingering doubt that Massachusetts v. EPA does not

control here is dispelled when we recall that EPA itself has

rejected Massachusetts v. EPA’s interpretation of “air

pollutant” for the Prevention of Significant Deterioration

16

statute. The Court in Massachusetts v. EPA said that “air

pollutant” meant “all airborne compounds of whatever stripe.”

549 U.S. at 529. EPA has acknowledged, however, that such

a broad definition cannot possibly extend to the use of the

term “air pollutant” in the Prevention of Significant

Deterioration statute. EPA understood that it would be absurd

to require pre-construction permits because of emissions of

any airborne compound, including emissions of airborne

compounds that have not been deemed harmful and regulated

under the Clean Air Act. To avoid rendering the Prevention

of Significant Deterioration statute an absurdity, EPA

construed “air pollutant” to mean certain air pollutants – in

particular, “any regulated air pollutant.”

The critical point for present purposes – and it really is a

critical point in thinking about the significance of

Massachusetts v. EPA to the present case – is that EPA itself

recognized that the Massachusetts v. EPA definition of “air

pollutant” cannot and does not control how to interpret “air

pollutant” in the Prevention of Significant Deterioration

context. As it tries to justify its broad interpretation of the

Prevention of Significant Deterioration statute, EPA cannot

simultaneously latch on to Massachusetts v. EPA and reject

Massachusetts v. EPA.

If Massachusetts v. EPA does not control here – and even

EPA admits that it does not – then we are back where we

started. EPA was faced with two initially plausible

interpretations of “air pollutant” for purposes of the

permitting requirement of the Prevention of Significant

Deterioration statute. One interpretation created patent

absurdities and made little sense given the other statutory

provisions. The other interpretation fit comfortably and

sensibly within the statutory text and context. EPA

17

nonetheless chose the first option. In my view, EPA’s reading

of the statute was impermissible. An agency cannot adopt an

admittedly absurd interpretation and discard an eminently

sensible one.

Given all of this, the case seems reasonably

straightforward. So how did the panel opinion reach the

opposite conclusion? I respectfully have three main points of

disagreement. First, as I read it, the panel opinion was

decisively influenced by Massachusetts v. EPA’s

interpretation of “air pollutant” in the context of the motor

vehicle emissions program. But in light of the material

differences between the motor vehicle emissions program and

the Prevention of Significant Deterioration program, the

Massachusetts v. EPA interpretation cannot control here, as

even EPA acknowledges. Second, the panel opinion

attempted to buttress its choice of a broad interpretation of the

term “air pollutant” by pointing to Section 7475(a)(4), the

provision in the Prevention of Significant Deterioration

program requiring covered facilities to use the best available

control technology. But as explained above, Section

7475(a)(4) actually cuts the other way because it specifically

refers to “each pollutant subject to regulation under this

chapter,” which now does include greenhouse gases –

whereas, by contrast, other statutory provisions in the

Prevention of Significant Deterioration program clearly

employ a NAAQS-specific interpretation of the unadorned

term “air pollutant.” Third, the panel gave insufficient weight

to the most critical point in this case, the absurd consequences

of EPA’s broad interpretation. This was a mistake because

the ultimate clincher in this case is one simple point: EPA

chose an admittedly absurd reading over a perfectly natural

reading of the relevant statutory text. An agency cannot do

that.

18

III

In finding EPA’s statutory interpretation legally

impermissible, I do not in any way want to diminish EPA’s

vital policy objectives. EPA’s regulations for the Prevention

of Significant Deterioration statute may well be a good idea as

a matter of policy. The task of dealing with global warming

is urgent and important. But as in so many cases, the question

here is: Who Decides? The short answer is that Congress

(with the President) sets the policy through statutes, agencies

implement that policy within statutory limits, and courts in

justiciable cases ensure that agencies stay within the statutory

limits set by Congress. A court’s assessment of an agency’s

compliance with statutory limits does not depend on whether

the agency’s policy is good or whether the agency’s intentions

are laudatory. Even when that is true, we must enforce the

statutory limits. See Hamdan v. United States, 696 F.3d 1238

(D.C. Cir. 2012) (ruling that Executive Branch exceeded

statutory authority in wartime prosecution of al Qaeda

member).

In cases like this one, the bedrock underpinnings of our

system of separation of powers are at stake. To be sure,

courts must be wary of undue interference with an agency’s

action implementing its statutory responsibilities. See

American Radio Relay League, Inc. v. FCC, 524 F.3d 227

(D.C. Cir. 2008) (separate opinion of Kavanaugh, J.); see also

Desert Citizens Against Pollution v. EPA, 699 F.3d 524 (D.C.

Cir. 2012); National Environmental Development

Association’s Clean Air Project v. EPA, 686 F.3d 803 (D.C.

Cir. 2012); American Petroleum Institute v. EPA, 684 F.3d

1342 (D.C. Cir. 2012); ATK Launch Systems, Inc. v. EPA, 669

F.3d 330 (D.C. Cir. 2012); Natural Resources Defense

Council v. EPA, 661 F.3d 662 (D.C. Cir. 2011); Medical

19

Waste Institute & Energy Recovery Council v. EPA, 645 F.3d

420 (D.C. Cir. 2011). To take one salient and important

example, the statutory scheme gives EPA significant

discretion in setting the NAAQS for the NAAQS air

pollutants – a discretion the courts must respect.

But at the same time, undue deference or abdication to an

agency carries its own systemic costs. If a court mistakenly

allows an agency’s transgression of statutory limits, then we

green-light a significant shift of power from the Legislative

Branch to the Executive Branch. The Framers of the

Constitution did not grant the Executive Branch the authority

to set economic and social policy as it sees fit. Rather, the

Framers gave Congress, along with the President, that

legislative role (subject to constitutional limits), and they

assigned the Executive Branch the executive power to issue

rules and enforce the law within the limits set by Congress. 4

It is true that the legislative process can be cumbersome

and frustrating, and the Executive Branch often is well-

intentioned in wanting to address pressing policy concerns

quickly, before the sometimes glacial congressional

machinery can be stirred to action. 5 The legislative process

4

In protecting national security, the Executive has some

Article II authority to act in certain circumstances in the Nation’s

defense even without specific congressional authorization. This is

known as Youngstown category two. See Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring). There is no general Youngstown category two

authority in the domestic social and economic realms, where the

Executive must have statutory authority in order to act.

5

In 2009, the House of Representatives passed a global

warming bill that was supported by the President. But the Senate

did not pass it. In the early 2000s, Senators McCain and Lieberman

20

can be slow because the Constitution makes it far harder to

enact legislation than to block it: Under the Constitution,

three different entities must agree in order to enact legislation

– the House, the Senate, and the President (or two-thirds of

both the House and the Senate to override a President’s veto).

But the Framers knew the legislative process would be

laborious. They designed it that way. The time and difficulty

of enacting new legislation has never justified an agency’s

contravention of statutory limits. The Framers specifically

contemplated, moreover, that there would be situations where

the Executive Branch confronts a pressing need that it does

not have current authority to address. In those circumstances,

the Constitution’s Recommendations Clause provides that the

President may “recommend” to Congress “such Measures as

he shall judge necessary and expedient.” U.S. CONST. art. II,

§ 3.

Importantly, the separation of powers and checks and

balances of our system are designed not just to ensure that the

Branches operate within the proper spheres of their authority,

but also to protect individual liberty. As the Supreme Court

has explained many times, “while a government of opposite

and rival interests may sometimes inhibit the smooth

functioning of administration, the Framers recognized that, in

the long term, structural protections against abuse of power

were critical to preserving liberty. . . . The failures of . . .

regulation may be a pressing national problem, but a judiciary

that licensed extraconstitutional government with each issue

of comparable gravity would, in the long run, be far worse.”

Free Enterprise Fund v. Public Company Accounting

sought to pass global warming legislation, but no law was

ultimately enacted. Numerous other bills have been introduced

over the years, and various legislative efforts are ongoing.

21

Oversight Board, 130 S. Ct. 3138, 3157 (2010) (internal

quotation marks, alterations, and citations omitted).

As a court, it is not our job to make the policy choices

and set the statutory boundaries, but it is emphatically our job

to carefully but firmly enforce the statutory boundaries. That

bedrock separation of powers principle accounts for my

concern about this case. Here, as I see it, EPA went well

beyond what Congress authorized for the Prevention of

Significant Deterioration statute. I respectfully disagree with

the panel’s resolution of this issue, and given the overall

importance of the case, I respectfully dissent from the denial

of rehearing en banc.