Record and brief — Am. Chemistry Council v. Envtl. Prot. Agency

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SUPREME COURT

OF THE UNITED STATES

No. 12-1248

Vide 12-1146, 12-

1254, 12-1268,

12-1269, 12-1272

Title: American Chemistry Council, et al., Petitioners

Environmental Protection Agency, et al.

Docketed: Apni 19, 2013

Linked with 12A876

Lower Ct United States Court of Appeals for the Distnct of Columbia Circuit

Case Nos.: (10-1167, et al.)

Decision Date. June 26, 2012

Rehearing

Pirie December 20, 2012

Questions

Presented

~~~Date~~~ ~~~~~~~Proceedings and Orders

Mar 8 2013 Application (12A876) to extend the time to file a petition for a wnt of certioran

from March 20, 2012 to April 19, 2012, submitted to The Chief Justice.

Mar 8 2013 Application (12A876) granted by The Chief Justice extending the time to file

until April 19, 2013.

Apr 18 2013 Petition for a writ of certioran filed. (Response due May 20, 2013)

Apr 18 2013 Appendix of American Chemistry Council, et al. filed. (Volumes | & |!)

May 8 2013 Consent to the filing of amicus cunae briefs, in support of either party or of

neither party, received from counsel for Texas, and eight other states.

May 13 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for petitioners Southeastem Legal

Foundation, Inc., et al.

May 14 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for the Federal Respondent.

May 14 2013 Letter of respondent National Environmenal Development's Clean Air Project in

support of the petitioner received.

May 15 2013 Order extending time to file response to petition to and including June 21,

2013, for all respondents.

May 17 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel! for the State of Indiana

Jun 62013 Order further extending time to file response to petition to and including July

22, 2013, for all respondents.

Jun 7 2013

Jul 12013

Jul 8 2013

Jul 22 2013

Aug 6 2013

Aug 7 2013

Oct 7 2013

Oct 15 2013

Oct 22 2013

Oct 24 2013

Oct 29 2013

Nov 1 2013

Nov 7 2013

Nov 8 2013

Application (12A1181) to file consolidated brief in opposition in excess of word

limits, submitted to The Chief Justice.

Application (12A1181) to file consolidated bnef in opposition in excess of word

limits granted by The Chief Justice. The consolidated bref in opposition may

not exceed 12,000 words.

Application (13A35) to file consolidated brief in opposition in excess of word

limits, submitted to The Chief Justice.

Application (13A35) to file consolidated brief in opposition in excess of word

limits granted by The Chief Justice. The consolidated brief in opposition may

not exceed 11,000 words.

Brief of respondents Environmental Protection Agency, et al. in opposition filed

VIDED.

Brief of Environmental Organization respondents in opposition filed. VIDED.

Brief of respondents New York, et al. in opposition filed. VIDED.

Reply of petitioners American Chemistry Council, et al. filed.

DISTRIBUTED for Conference of September 30, 2013

DISTRIBUTED for Conference of October 11, 2013.

Petition GRANTED limited to the following Question: Whether EPA permissibly

determined that its regulation of greenhouse gas emissions from new motor

vehicles triggered permitting requirements under the Clean Air Act for

Stationary sources that emit greenhouse gases. The cases are consolidated

and a total of one hour is allotted for oral argument. VIDED.

Briefing proposal of the parties. VIDED

Letter from Coalition for Responsible Regulation, inc., et al. regarding briefing

proposal. VIDED.

Upon consideration of the letter of October 22, 2013, from counsel for

petitioners in No. 12-1248 on behalf of the parties, the briefing proposal set out

in the letter is adopted with the exception that the bnefs of petitioners shall not

exceed 45,000 words in aggregate. The briefs of respondents in support of

petitioners shall not exceed 6,000 words each. The brief of the Solicitor

General shall not exceed 15,000 words. The bnefs of other respondents shall

not exceed 10,000 words each. Reply briefs shall not exceed 18,000 words in

aggregate. VIDED

Consent from petitioner Utility Air Regulatory Group to the filing of amicus

curiae briefs in support of either party or neither party. VIDED

The time to file joint appendix, petitioners’ briefs on the ments, and brefs of

respondents in support of petitioners is extended to and including December 9,

2013. VIDED

The time to file respondents’ bnefs on the merits is extended to and including

January 21, 2014. VIDED

Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for the United States Federal

Environmental Protection Agency, et al. VIDED.

Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Texas, et al. VIDED.

Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Southeastem Legal Foundation, Inc, et

al. VIDED.

Nov 82013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Coalition for Responsible Regulation,

et al. VIDED.

Nov 12 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of

neither party, received from counsel for American Chemistry Council, et al

VIDED.

Nov 12 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for New York, California, et al. VIDED

Nov 12 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel! for Environmental Organizations,

Biological Diversity, et al. VIDED.

Nov 12 2013 Letter received from counsel for the Automobile Respondents. VIDED.

Nov 19 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Energy-intensive Manufacturers

Working Group on Greenhouse Gas Regulation, et al. VIDED.

Nov 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for The Chamber of Commerce of the

United States of America, et al. VIDED.

Nov 25 2013 SET FOR ARGUMENT ON Monday, February 24, 2014

Dec 92013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for the National Mining Association.

VIDED.

Dec 92013 Brief of respondents Coalition for Responsible Regulation, Inc., et al. in support

of petitioners filed VIDED.

Dec 92013 Brief of petitioners American Chemistry Council, et al. filed. VIDED.

Dec 92013 Brief of petitioners Chamber of Commerce of the United States of America, et

al. filed. VIDED.

Dec 92013 Bnef of petitioners Southeastem Legal Foundation, Inc., et al. filed. VIDED

Dec 92013 Brief of petitioner Energy-Intensive Manufacturers Working Group on

Greenhouse Gas Regulation, et al. filed. VIDED.

Dec 92013 Bnef of petitioners Texas, et al. filed. VIDED.

Dec 92013 Joint appendix filed (5 volumes). (Statement of costs filed.) VIDED.

Dec 92013 Brief of petitioner Utility Air Regulatory Group filed. VIDED.

Dec 12 2013 Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED.

Dec 13 2013 Record received from U.S.C.A. DC Circuit. The record is electronic and located

on PACER.

Dec 16 2013 Brief amici curiae of States of Kansas, et al. filed. VIDED.

Dec 16 2013 Brief amicus curiae of Peabody Energy Corporation filed. VIDED

Dec 16 2013 Bnef amici cunae of Political Economists Henry N. Butler, et al. filed. VIDED.

Dec 16 2013 Brief amici curiae of Economists Thomas C. Schelling, et al. filed. VIDED.

Dec 16 2013 Brief amicus curiae of Committee for a Constructive Tomorrow filed. VIDED

Dec 16 2013 Brief amicus curiae of American Civil Rights Union filed. VIDED.

Dec 16 2013 Brief amici curiae of Texas Oil & Gas Association, et al. filed. VIDED.

Dec 16 2013 Brief amicus curiae of Senator Mitch McConnell and Other Members of the

United States Congress filed. VIDED.

Dec 16 2013 Brief amicus curiae of Mountain States Lega! Foundation filed. VIDED.

Dec 16 2013 Brief amici curiae of Five U.S. Senators filed. VIDED

Dec 16 2013 Brief amicus curiae of Center for Constitutional Junsprudence filed. VIDED

Dec 16 2013 Bref amici curiae of Administrative Law Professors, et ai. filed. VIDED.

(Distributed)

Dec 16 2013 Brief amicus cunae of American Road & Transportation Builders Association in

support of neither party filed. VIDED. (Distributed)

Dec 16 2013 Brief amici cunae of State and Local Chambers of Commerce, and Other

Business Associations filed. VIDED. (Distributed)

Dec 16 2013 Brief amici curiae of Scientists and Economists filed. VIDED. (Distributed)

Dec 20 2013 CIRCULATED.

Jan 62014 Motion for divided argument and enlargement of time for oral argument filed by

petitioners. VIDED.

Jan 21 2014 Brief of respondent Environmental Protection Agency filed. VIDED.

(Distributed)

Jan 21 2014 Brief of respondents Environmental Organization respondents filed. VIDED.

(Distributed)

Jan 21 2014 Bnef of respondents New York, et al. filed. VIDED. (Distributed)

Jan 27 2014 Motion for divided argument filed by petitioners GRANTED. and the time is

divided as follows: 30 minutes for private party petitioners, 15 minutes for state

petitioners, and 45 minutes for respondents.

Jan 27 2014 Brief amici curiae of South Coast Air Quality Management District, et al. filed

VIDED. (Distributed)

Jan 27 2014 Brief amicus curiae of Institute for Policy Integrity at New York University

School of Law filed. VIDED. (Distributed)

Jan 28 2014 Bnef amicus curiae of Calpine Corporation filed. VIDED. (Distributed)

Jan 28 2014 Bnef amicus cunae of Amencan Thoracic Society filed. VIDED. (Distnbuted)

Jan 28 2014 Brief amicus curiae of Constitutional Accountability Center filed. VIDED

(Distnbuted)

Feb 13 2014 Reply of respondents Coalition for Responsible Regulation, Inc., et al. in

support of petitioners filed. VIDED. (Distributed)

Feb 14 2014 Reply of petitioners in Nos. 12-1248, 12-1254, 12-1268, and 2-1272 filed.

VIDED. (Distributed)

Feb 14 2014 Reply of petitioners Texas, et al. filed. VIDED. (Distributed)

Feb 14 2014 Reply of petitioner Utility Air Regulatory Group filed. VIDED. (Distributed)

Feb 24 2014 Argued. For private petitioners: Peter Keisler, Washington, D. C. For state

petitioners: Jonathan F. Mitchell, Solicitor General, Austin, Tex. For

respondents: Donald B. Verrilli, Jr., Solicitor General, Department of Justice,

Washington, D. C.

PETITION

FOR

WRIT OF

CERTIORARI

IN THE

Supreme Court of the United States

AMERICAN CHEMISTRY COUNCIL, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the D.C. Circuit

PETITION FOR A WRIT OF CERTIORARI

PETER D. KEISLER*

ROGER R. MARTELLA, JR.

TIMOTHY K. WEBSTER

QUIN M. SORENSON

JOSHUA C. HESS

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pkeisler@sidley.com

Counsel for Petitioners

April 18, 2013 * Counsel of Record

REINER EL ND OO NON CELR TT TNT EEIS

WiILSON-EPES PRINTING Co. INC. — (202) 789-0096 — WasnincToN, D.C. 20002

QUESTION PRESENTED

The Clean Air Act requires a “major emitting facili-

ty,” defined as a source of “two hundred and fifty tons

per year or more” of an air pollutant, to comply with

the permitting requirements of the “prevention of

significant deterioration” (PSD) program of Part C of

the Act if the facility is “in any area to which this

part applies.” 42 U.S.C. §§ 7475{a)(1), 7479(1). The

Environmental Protection Agency (EPA) claims the

power to revise that statutory threshold to “one hun-

dred thousand tons per year or more” for greenhouse

gases because, it explains, applying the statutory

threshold as written to greenhouse gases would pro-

duce “absurd results” that would be “inconsistent

with congressional intent” and “severely undermine

congressional purpose.” Pet. App. 617a. These “ab-

surd results” occur only because EPA has interpreted

the PSD provision to cover sources of 250 tons per year

of any pollutant regulated under any part of the Act—

now including greenhouse gases, as a result of EPA’s

regulatory actions after Massachusetts v. EPA, 549

U.S. 497 (2007)—even though the PSD program “ap-

plies” only to six designated “NAAQS pollutants.”

The question presented is: Whether EPA properly

interpreted Part C of the Clean Air Act, requiring a

pre-construction permit for a “major emitting facili-

ty ... in any area to which this part applies,” 42

U.S.C. § 7475(a)(1),to apply to facilities emitting “any

regulated air pollutant,” when EPA’s interpretation

concededly produces absurd results, requiring (in the

agency's view) that it rewrite separate statutory

thresholds, and when an alternative construction—

applying the provision only to sources of NAAQS pol-

lutants subject to Part C—would avoid those results

and would not require rewriting the statute.

(1)

PARTIES TO THE PROCEEDINGS

Petitioners herein, which were also the petitioners

in this case below or in related cases addressed by the

consolidated judgment below, include the American

Chemistry Council; American Frozen Food Institute;

American Fuel & Petrochemical Manufacturers;

American Iron and Steel Institute; American Petrole-

um Institute; Brick Industry Association; Clean Air

Implementation Project; Corn Refiners Association;

Glass Association of North America; Independent Pe-

troleum Association of America; Indiana Cast Metals

Association; Michigan Manufacturers Association;

Mississippi Manufacturers Association; National As-

sociation of Home Builders; The National Association

of Manufacturers; National Federation of Independ-

ent Business; National Oilseed Processors Associa-

tion; North American Die Casting Association; Port-

land Cement Association; Specialty Steel Industry of

North America; Tennessee Chamber of Commerce

and Industry; Western States Petroleum Association;

West Virginia Manufacturers Association; and Wis-

consin Manufacturers and Commerce.

Respondents herein, which were also. the

respondents in this case below, are the Environ-

mental Protection Agency and Lisa Perez Jackson,

Administrator, U.S. Environmental Protection

Agency. Lisa Perez Jackson ceased to hold the office

of Administrator, U.S. Environmental Protection

Agency, on February 15, 2013; that office is currently

held in an acting capacity by Robert Perciasepe,

Acting Administrator, U.S. Environmental Protection

Agency.

The petitioners in this case below or in related cas-

es addressed by the consolidated judgment below,

which are not petitioners herein, included Greg Ab-

bott, Attorney General of Texas; Alpha Natural Re-

sources, Inc.; American Farm Bureau Federation;

Michele Bachmann, U.S. Representative, Minnesota

6th District; Haley Barbour, Governor of the State of

Mississippi; Marsha Blackburn, U.S. Representative,

Tennessee 7th District; Kevin Brady, U.S. Repre-

sentative, Texas 8th District; Paul Broun, U.S. Rep-

resentative, 10th District; Dan Burton, U.S. Repre-

sentative, Indiana 5th District; Chamber of Com-

merce of the United States of America; Glass Packag-

ing Institute; Coalition for Responsible Regulation,

Inc.; Collins Industries, Inc.; Collins Trucking Com-

pany, Inc.; Commonwealth of Virginia; Competitive

Enterprise Institute; Nathan Deal, U.S. Representa-

tive, Georgia 9th District; Energy-Intensive Manufac-

turers’ Working Group on Greenhouse Gas Regula-

tion; FreedomWorks; the Science and Environmental

Policy Project; Georgia Agribusiness Council, Inc.;

Georgia Coalition for Sound Environmental Policy,

Inc.; Georgia Motor Trucking Association, Inc.;

Gerdau Ameristeel US Inc.; Phil Gingrey, U.S. Rep-

resentative, Georgia 11th District; Great Northern

Project Development, L.P.; Industrial Minerals Asso-

ciation—North America; J&M Tank Lines, Inc.;

Kennesaw Transportation, Inc.; Steve King, U.S.

Representative, Iowa 5th District; Jack Kingston,

U.S. Representative, Georgia 1st District; Landmark

Legal Foundation; Langboard, Inc-—MDF; Langboard,

Inc.-OSB; Langdale Chevrolet-Pontiac, Inc.; The

Langdale Company; Langdale Farms, LLC; Langdale

Ford Company; Langdale Forest Products Company;

Langdale Fuel Company; Mark R. Levin; John

Linder, U.S. Representative, Georgia 7th District;

Louisiana Department of Environmental Quality;

Missouri Joint Municipal Electric Utility Commis-

sion; National Cattlemen’s Beef Association; National

Environmental Development Association’s Clean Air

Project; Nationa] Mining Association; Ohio Coal As-

sociation; Pacific Legal Foundation; Peabody Energy

Company; Rick Perry, Governor of Texas; Tom Price,

U.S. Representative, Georgia 6th District; Dana

Rohrabacher, U.S. Representative, California 46th

District; Rosebud Mining Co.; John Shadegg, US.

Representative, Arizona 3rd District; John Shimkus,

U.S. Representative, Illinois 19th District; South

Carolina Public Service Authority; Southeast Trailer

Mart, Inc.; Southeastern Legal Foundation, Inc.;

State of Alabama; State of Nebraska; State of North

Dakota; State of South Carolina; State of South Da-

kota; State of Texas; Texas Agriculture Commission;

Texas Commission on Environmental Quality; Texas

General Land Office; Texas Public Utilities Commis-

sion; Texas Railroad Commission; Utility Air Regula-

tory Group; and Lynn Westmoreland, U.S. Repre-

sentative, Georgia 3rd District.

The respondents in related cases addressed by the

consolidated judgment below included the U.S. Envi-

ronmental Protection Agency (EPA) and Lisa P. Jack-

son, Administrator, U.S. Environmental Protection

Agency. Lisa Perez Jackson ceased to hold the office

of Administrator, U.S. Environmental Protection

Agency, on February 15, 2013; that office is currently

held in an acting capacity by Robert Perciasepe, Act-

ing Administrator, U.S. Environmental Protection

Agency.

Movant-intervenors for petitioners in certain of the

cases addressed by the consolidated judgment below,

which are not petitioners herein (unless identified

above as petitioners herein), included Alpha Natural

Resources, Inc.; American Farm Bureau Federation;

American Frozen Food Institute; American Fuel &

Petrochemical Manufacturers; American Petroleum

Institute; Arkansas State Chamber of Commerce; As-

sociated Industries of Arkansas; Brick Industry Asso-

ciation; Coalition for Responsible Regulation, Inc.;

Chamber of Commerce of the United States of Ameri-

ca; Colorado Association of Commerce & Industry;

Commonwealth of Kentucky; Corn Refiners Associa-

tion; Glass Association of North America; Glass

Packaging Institute; Governor of Mississippi Haley

Barbour; Great Northern Project Development, L.P.;

Idaho Association of Commerce and Industry; Inde-

pendent Petroleum Association of America; Indiana

Cast Metals Association; Industrial Minerals Associa-

tion North America; Kansas Chamber of Commerce

and Industry; Langdale Farms, LLC; Langdale Fuel

Company; Langdale Chevrolet-Pontiac, Inc; Langdale

Ford Company; Langboard, Inc—MDF; Langboard,

Inc.-OSB; Louisiana Department of Environmental

Quality; Louisiana Oil and Gas Association; Michigan

Manufacturers Association; Mississippi Manufactur-

ers Association; Nationa! Association of Manufactur-

ers; National Association of Home Builders; National

Cattlemen’s Beef Association; National Electrical

Manufacturers Association; National Environmental

Development Association’s Clean Air Project; Nation-

al Federation of Independent Business; National

Mining Association; National Oilseed Processors As-

sociation; Nebraska Chamber of Commerce and In-

dustry; North American Die Casting Association;

Ohio Coal Association; Ohio Manufacturers Associa-

tion; Peabody Energy Company; Pennsylvania Manu-

facturers Association; Portland Cement Association;

Rosebud Mining Company; South Coast Air Quality

Management District; Specialty Steel Industry of

North America; State of Alaska; State of Florida;

State of Georgia; State of Indiana; State of Louisiana;

State of Michigan; State of Nebraska; State of North

Dakota; State of Oklahoma; State of South Carolina;

State of South Dakota; State of Utah; Steel Manufac-

turers Association; Tennessee Chamber of Commerce

and Industry; Utility Air Regulatory Group; Virginia

Manufacturers Association; Western States Petrole-

um Association; West Virginia Manufacturers Asso-

ciation; and Wisconsin Manufacturers & Commerce.

Movant-intervenors for respondents in certain of

cases addressed by the consolidated judgment below

included Alliance of Automobile Manufacturers;

American Farm Bureau Federation; Brick Industry

Association; Center for Biological Diversity; City of

New York; Commonwealth of Massachusetts; Con-

servation Law Foundation; Environmental Defense

Fund; Georgia ForestWatch; Global Automakers; In-

diana Wildlife Federation; Michigan Environmental

Council; National Environmental Development Asso-

ciation’s Clean Air Project; Nationa] Mining Associa-

tion; Peabody Energy Company; Natural Resources

Council of Maine; Natural Resources Defense Coun-

cil; National Wildlife Federation; Ohio Environmen-

tal Council; Pennsylvania Department of Environ-

mental Protection; Sierra Club; South Coast Air

Quality Management District; State of California;

State of Connecticut; State of Delaware; State of Ili-

nois; State of Iowa; State of Maine; State of Mary-

land; State of Minnesota; State of New Hampshire;

State of New Mexico; State of New York; State of

North Carolina; State of Oregon; State of Rhode Is-

land; State of Vermont; State of Washington; Wet-

lands Watch; and Wiid Virginia.

RULE 29.6 STATEMENT

None of the petitioners herein has a parent compa-

ny, and no publicly held corporation has a 10% or

greater ownership interest in any petitioner herein.

TABLE OF CONTENTS

QUESTION PRESENTED ......0000.... cee eeeceeeeeeeeeees

PARTIES TO THE PROCEEDINGS ........ sieeiiinein

RULE 29.6 STATEMENT .....................ccecseeeeeeeeees

TABLE OF AUTHORITIES ......................-:ccesseees

PETITION FOR A WRIT OF CERTIORARI.......

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IEE serictnniicnnipepisinnecennvbaninveunimmemennita

STATUTORY AND REGULATORY PROVI-

IS sriirnteneniitinnianceninemcninginnevesisineniet

STATEMENT OF THE CASE........................:::000+-

REASONS FOR GRANTING THE PETITION...

I. REVIEW IS WARRANTED BECAUSE

THE DECISION BELOW RESTS ON AN

IMPERMISSIBLE INTERPRETATION OF

THE CLEAN AIR ACT IN WHICH THE

AGENCY HAS ASSERTED AUTHORITY

TO REWRITE EXPRESS STATUTORY

A.The Decision Below Adopts An

Agency Interpretation Of The Clean Air

Act That The Agency Itself Concedes

Produces Absurd Results........................-.

B. The Decision Below Allows The Agency

To Rewrite Express And Unequivocal

I ied einccchnititiitinaindiisinatedinete

(vil)

Vill

TABLE OF CONTENTS—continued

Page

Il. REVIEW IS WARRANTED IN LIGHT OF

THE EXTRAORDINARY NATIONAL

IMPORTANCE OF EPA’S REGULATION

OF GREENHOUSE GAS EMISSIONG........ 29

IIT andcienstuntidecisenesinesesadceiamemnaintionenensss 32

APPENDICES—VOLUME I

APPENDIX A: Coalition for Responsible Reg-

ulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir.

STIs tata aarti la

APPENDIX B: Requirements for Preparation,

Adoption, and Submittal of Implementation

Plans; Approval and Promulgation of im-

plementation Plans, 45 Fed. Reg. 52676

I eaten 78a

APPENDIX C: Coalition for Responsible Reg-

ulation, Inc. v. EPA, Nos. 09-1322 et al.

(D.C. Cir. Dec. 20, 2012) (order denying re-

ELE IS ETE NT AO 413a

APPENDICES—VOLUME II

APPENDIX D: Federal Statutes...............0....... 465a

APPENDIX E: Prevention of Significant De-

tenoration and Title V Greenhouse Gas Tai-

loring Rule, 75 Fed. Reg. 31514 (June 3,

TABLE OF AUTHORITIES

CASES Page

Ala. Power Co. v. Costle, 636 F.2d 323

I I Fi alacant passim

Bellum v. PCE Constructors, Inc., 407 F.3d

I enc erinsnaies 19

Breedlove v. Earthgrains Baking Cos., 140

Sa SE IS I iiictccntnencstsinccicnestinsns 19

Chevron, U.S.A., Inc. v. NRDC, Inc., 467

U.S. B37 (1984) .........-c-c-c.c.c.-ceccececeses 26, 28, 29

Church of the Holy Trinity v. United

States, 143 U.S. 457 (1892)........................ 20

Conservation Law Found., Inc. v. Busey, 79

fp o- 1) Le tp FR EpepenenEp EEE 19, 20

Cramp v. Bd. of Pub. Instruction, 368 U.S.

SU hstaiciiisininesiiidcitanlinitiniiiaibgbastiilbabananaans 19

Ewing v. Rodgers, 826 F. od 967 (10th Cir.

EEE ee ee eR Pe 19

Frank G. v. Bd. of Educ., 459 F.3d 356 (2d

EERIE SS eee ene nC tee 20

Graham Cnty. Soil & Water Conservation

Dist. v. United States ex rel. Wilson, 545

I A 22

Green v. Bock Laundry Mach. Co., 490 U.S.

al ae 26

Griffin v. Oceanic Contractors, Inc., 458

I ae 19, 20, 29

Hibbs v. Winn, 542 U.S. 88 (2004)................ 22

Kananen v. Matthews, 555 F.2d 667 (8th

SIRNA error reer area mm er nce yn 21

Kloeckner v. Solis, 133 S. Ct. 596 (2012).. passim

Lamie v. U.S. Tr., 540 U.S. 526 (2004)........ 20, 23

Long v. Tommy Hilfiger U.S.A., Inc., 671

Be I, I i iciaraccensieiedinanens 19

In re Magic Rests., Inc., 205 F.3d 108 (3d

RS RS ee ate Rae ee eR 20

TABLE OF AUTHORITIES—continued

Page

Massachusetts v. EPA, 549 U.S. 497

ALTACE eee oe POR OE Pt ean REET passim

Miccosukee Tribe of Indians v. S. Ever-

glades Restoration Alliance, 304 F.3d

Lt 21

Mova Pharm. Corp. v. Shalala, 140 F.3d

Ns Gtiis SEI ccencescccenscacocennesvtnsseoes 19, 26

Nat Cable & Telecomms. Ass'n v. Brand X

Internet Servs., 545 U.S. 967 (2005).......... 26

Nixon v. Mo. Mun. League, 541 U.S. 125

calla chtcineianiaiinaida hae haciceniaitelaaieniahaminailibaas 19

In re Permian Basin Area Rate Cases, 390

a incaescnlaiaesniiiehiidaibiittiatenelieie 26

Powerex Corp v. Reliant Energy Servs.,

Fnec., 561 U.S. 224 (BOOT )........cecccecceesessccvesee 22

Robbins v. Chronister, 435 F.3d 1238 (10th

RTE oe ene en ee 21

Russello v. United States, 464 U.S. 16

SOS sciitenniaiehietilihddiaitaidisgaiiaanemiiamniadions 24

Seal 1 v. Seal A, 255 F.3d 1154 (9th Cir.

SI cnistinsiictncthielanscatabebnusmihbinnubentugiotagiinmemndans 21

Silva-Hernandez v. U.S. Bureau of Citizen-

ship & Immigration Servs., 701 F.3d 356

I i ace aetinlecdinitilamadibdianes 19

In re Sunterra Corp., 361 F.3d 257 (4th

| REESE on cee ree a ee ne 21

Sykes v. Columbus & Greenville Ry., 117

F.28 BOT (Gtha Car. 1907) .02....cccceccccscccceseeeses 21

Trans Alaska Pipeline Rate Cases, 436 U-S.

RETITLED Ae me mea nO Eee neE SE 19, 20

United States v. Am. Trucking Ass'n, 310

Ne alleen 20

United States v. Calor, 340 F.3d 429 (6th

TABLE OF AUTHORITIES—continued

Page

United States v. Mead Corp., 533 U.S. 218

ili ie naasandelincrnh tales DitiMiaiaigiilncnib ibaa 26

United States v. Tex-Tow, Inc., 589 F.2d

| 21

Wassenaar v. Office of Personnel Mgmt., 21

F.3d 1090 (Fed. Cir. 1994) ....0.000...00..ccc. 19, 21

STATUTES AND REGULATIONS

Clean Air Act Amendments of 1977, Pub.

L. No. 95-95, 91 Stat. 685 .......................... 6

I 2,6

et 7,8

| SSS SON ee ee eee Oe 6,7

ELE AE SOO ae Cee Te eM 7

ERE FARE ERRNO coh aee O 7,8

INERT ERLE rc recone PEN a 22

EERE ERATES ES Spee re ons passim

9 BURNS PRRs ateNaeievaees Aicoe teams 2,8

(RARER HS ried eeeaeneie okie eee tar 8

| RST 8,9

| ESR seo ereeene re nmroe ee 8

RESETS ere eee nO 8

a ED ciicttocticnnctsnenecectssmensees 7

43 Fed. Reg. 26388 (June 19, 1978).............. g

44 Fed. Reg. 51924 (Sept. 5, 1979) ............... 9

45 Fed. Reg. 52676 (Aug. 7, 1980) ............ 8, 9, 10

68 Fed. Reg. 52922 (Sept. 8, 2003) ............... ll

73 Fed. Reg. 44354 (July 30, 2008)............... 12

74 Fed. Reg. 55292 (Oct. 27, 2009) .............. 11, 12

74 Fed. Reg. 66496 (Dec. 15, 2009)............... ll

75 Fed. Reg. 25324 (May 7, 2010)................. ll

75 Fed. Reg. 31514 (June 3, 2010)............ passim

77 Fed. Reg. 41051 (July 12, 2012)........... 13

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES Page

EPA, Regulatory Impact Analysis for the

Final Prevention of Significant Detertora-

tion and Title V Greenhouse Gas Tailor-

I ey 30

Nat'l Research Council, Climate Change

EI see area eer 12

PETITION FOR A WRIT OF CERTIORARI

Petitioners, the American Chemistry Council, the

American Fuel & Petrochemical Manufacturers, the

American Petroleum Institute, the National Associa-

tion of Home Builders, the National Association of

Manufacturers, the National Oilseed Processors As-

sociation, and other industry and trade associations

whose members are affected by the regulations at is-

sue, petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the D.C. Circuit.

OPINIONS BELOW

The opinion of the D.C. Circuit is reported at 684

F.3d 102, and reproduced at Petition Appendix (Pet.

App.) la-77a. The unpublished order of the D.C. Cir-

cuit denying rehearing en banc, including several

statements concurring in or dissenting from the deni-

al of rehearing en banc, is reproduced at Pet. App.

413a-64a.

JURISDICTION

The D.C. Circuit entered a consolidated judgment

addressing American Chemistry Council v. EPA, Nos.

10-1167 et al. (D.C. Cir.), as well as several related

matters, on June 26, 2012. Pet. App. 3a. It denied

timely petitions for rehearing en banc by order dated

December 20, 2012. Pet. App. 413a-16a. On March

8, 2013, the Chief Justice granted an extension to and

including April 19, 2013, of the time for filing a peti-

tion for a writ of certiorari. This Court has jurisdic-

tion over this timely filed petition pursuant to 28

U.S.C. § 1254(1).

STATUTORY AND REGULATORY PROVISIONS

Relevant provisions of the Clean Air Act, 42 U.S.C.

§§ 7401 et seq., are reproduced at Pet. App. 465a-90a.

Relevant rulemakings of the U.S. Environmental Pro-

tection Agency are reproduced at Pet. App. 78a-412a,

492a-909a.

INTRODUCTION

The regulatory regime upheld by the judgment be-

low, covering a suite of rulemakings by the Environ-

mental Protection Agency (EPA) addressing green-

house gas emissions from stationary sources, repre-

sents the most sweeping expansion of EPA’s authori-

ty in the agency’s history, extending its reach to po-

tentially millions of industrial, commercial, and resi-

dential facilities across the country, at costs estimat-

ed to run into the tens of billzons of dollars per year.

See 75 Fed. Reg. 31514, 31533, 31540, 31563, 31597

(June 3, 2010) (Pet. App. 579a-80a, 6lla, 711la-14a,

858a-59a). Yet, that regime is premised on an inter-

pretation of the Clean Air Act which ali agree pro-

duces “absurd results” that are inconsistent with con-

gressional intent, and that could be avoided by adopt-

ing a reasonable alternative construction of the stat-

ute. Im a move aptly characterized by Judge

Kavanaugh as “a very strange way to interpret a

statute,” Pet. App. 448a, EPA concluded that those

absurdities could and should be addressed not by cor-

recting its interpretation of the statute, but by rewrit-

ing separate and explicit statutory directives. Those

provisions unambiguously define the threshold for

emissions regulation as “two hundred and fifty tons

per year or more” of an air pollutant, 42 U.S.C.

§ 7479(1), but EPA has unilaterally revised that

threshold to “one hundred thousand tons per year or

more” for emissions of greenhouse gases.

EPA has, moreover, explained that its alteration of

the statutory threshold is just the first “phase” of this

process. The agency will, it says, further revise that

new threshold downward from time to time as the

costs associated with regulation become acceptable,

in its view, in light of potential benefits. 75 Fed. Reg.

at 31573 (Pet. App. 754a-58a). EPA has, in other

words, relied on the costs and absurdities created by

its own interpretation of the Clean Air Act to grant

itself a continuing license to create and revise the

statutory scheme without regard to even the clearest

congressional directives—a breathtaking assertion of

agency policymaking power over a critical national

issue.

Review of the D.C. Circuit’s judgment upholding

this regime is plainly warranted. The regulations

under review were adopted in response to this Court’s

decision in Massachusetts v. EPA, 549 U.S. 497

(2007), and the opinion of the court of appeals—

issued after an extraordinary two days of oral argu-

ment addressing scores of separate petitions for re-

view—repeatedly cites and relies upon that decision.

E.g., Pet. App. 3a-l4a. But Massachusetts v. EPA

does not address the question of statutory interpreta-

tion presented here, concerning whether the permit-

ting provisions of Part C of the Clean Air Act “apply”

to stationary sources emitting threshold amounts of

greenhouse gases only (and no threshold amounts of

air pollutants actually subject to Part C). In any

event, that decision does not and could not support an

interpretation of the Act that is so at odds with the

relevant statutory text and basic principles of statu-

tory construction.

Massachusetts v. EPA itself described these very

types of issues, regarding the scope and limits of

EPA’s authority to regulate greenhouse gas emissions

under the Clean Air Act, as of “unusual importance”

warranting a grant of certiorari even in the absence

of a circuit conflict. 549 U.S. at 505-06. All members

of the en banc court who addressed this case—even

those concurring in the denial of rehearing—likewise

agreed that the issues raised “are undoubtedly ... of

exceptional importance.” Pet. App. 419a, 444a. The

pervasive and far-reaching impacts these unprece-

dented regulations will have, which EPA itself con-

cedes “could adversely affect national economic devel-

opment” if fully implemented, 75 Fed. Reg. at 31557

(Pet. App. 685a), justify this Court’s review.

The importance of these matters is further con-

firmed by the number of petitions seeking review of

the judgment below, from a range of commercial or-

ganizations and also numerous States that, together,

represent a substantial segment of this Nation's eco-

nomic base as well as its population. This petition,

filed by a broad coalition of leading industry and

trade associations whose members are affected by

EPA's regulations, seeks review of the same consoli-

dated judgment, but presents a unique set of issues

regarding how properly to harmonize interpretations

of the Clean Air Act issued by EPA more than three

decades ago with a regulatory and jurisprudential

environment that has been dramatically altered by

the recent greenhouse gas regulations issued by the

agency in response to Massachusetts v. EPA.' For

' This petition addresses the case captioned below as Ameri-

can Chemistry Council v. EPA, Nos. 10-1167 et al. (D.C. Cir.), as

well as the related action captioned as National Association of

Manufacturers v. EPA, No. 10-1218 (D.C. Cir.), to the extent

that action, challenging the Tailoring Rule, is necessary to ac-

cord full relief in this case. Notably, although this case arises as

a result of Massachusetts v. EPA, insofar as that decision

prompted EPA to undertake regulation of greenhouse gas emis-

these reasons, and as explained in greater detail be-

low, this petition for certiorari should be granted.

STATEMENT OF THE CASE

Specifically at issue in this case is EPA's interpre-

tation of the permitting provision of the “prevention

of significant deterioration” (PSD) program in Part C

of Title I of the Clean Air Act. That provision states

that any “major emitting facility ... in any area to

which this part applies” must obtain pre-construction

permits and comply with an extensive range of regu-

latory standards. 42 U.S.C. § 7475(a)(1). Although

this provision can and should be read to cover only

sources of those pollutants to which Part C actually

“applies”"—i.e., so-called “NAAQS pollutants” ad-

dressed by the PSD program—EPA has interpreted it

to apply to sources of any pollutant regulated under

any part of the Act, now including greenhouse gases

as a result of EPA’s recent regulations addressing

mobile sources (such as automobiles) in response to

Massachusetts v. EPA. See 75 Fed. Reg. at 31557-67

(Pet. App. 687a-728a). EPA has acknowledged that

its interpretation produces “absurd results” by poten-

tially sweeping into the PSD program millions of

sions, the arguments this petition presents, if accepted, would

not require the Court to overrule Massachusetts, or even directly

lumit ite holding, in that this petition focuses on different statu-

tory language in a different part of the Clean Air Act than that

addressed in Massachusetts. Other petitions seeking review of

the consolidated judgment below address the related cases cap-

tioned as Coalition for Responsible Regulation, Inc. v. EPA, Nos.

09-1322 et al. (D.C. Cir.); Coalition for Responsible Regulatwn,

Inc. v. EPA, Nos. 10-1073 et al. (D.C. Cir.); and Coalition for Re-

sponsible Regulation, Inc. v. EPA, Nos. 10-1092 et al. (D.C. Cir.).

While the issues and arguments presented by this petition are

distinct from those raised by petitioners in related matters, the

petitioners herein also support many of the arguments present-

ed in those petitions.

small commercial and residential sources of green-

house gas emissions that Congress undoubtedly nev-

er intended to be covered. Jd. It has nevertheless re-

fused to adopt an alternative reading of the statute

that would, by applying the program only to sources

of NAAQS pollutants, accord with the statutory lan-

guage and avoid those absurdities. See id. The peti-

tions for review in this case challenged EPA's inter-

pretation of the PSD provision as inconsistent with

the Act, and otherwise unreasonable.

1. The rules and regulations relevant here were

developed over a period of more than 30 years, start-

ing soon after enactment of the Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685,

and culminating in EPA’s most recent rulemakings

concerning greenhouse gases. A misconstruction of

the Act by EPA in 1980, interpreting the PSD provi-

sion to cover sources of “any regulated pollutant” ra-

ther than only NAAQS pollutants, for decades had no

practical importance but acquired enormous—indeed,

transformative—significance once EPA classified

greenhouse gases as regulated pollutants. Infra

pp. 10-12. That regulatory history, and the underly-

ing statutory structure, are essential to addressing

the issues presented by this petition.

a. Title I of the Clean Air Act, enacted in 1977,

establishes a framework for EPA to address concerns

over ambient air quality attributed to emissions of

pollutants from stationary sources, and in particular

“to encourage and assist the development and opera-

tion of regional air pollution prevention and control

programs.” 42 U.S.C. § 7401(b)(4). Central to this

regulatory scheme are the “national ambient air qual-

ity standards,” or NAAQS. Id. § 7408. These stand-

ards, developed by EPA with public input, set the

maximum permissible concentrations that may safely

be present in the local ambient air of “NAAQS pollu-

tants,” also known as “criteria pollutants.” ld.

§§ 7408-7409. The “NAAQS pollutants” are those pol-

lutants that, in EPA’s judgment, pose special risks to

the public health and welfare—currently including

ozone, sulfur dioxide, particulate matter, nitrogen ox-

ides, carbon monoxide, and lead. See 40 C.F.R.

§§ 50.1-50.12. For each of these six NAAQS pollu-

tants, the statute directs EPA to determine whether

each “air quality control region” in the country is or is

not in compliance with the applicable NAAQS, and to

designate the region accordingly as either in “attain-

ment” or “nonattainment.” 42 U.S.C. § 7407(d). Be-

cause these designations are pollutant-specific, a sin-

gle geographic area may be in attainment with one

NAAQS while in nonattainment with another. See

id.; see also Ala. Power Co. v. Costle, 636 F.2d 323,

350 (D.C. Cir. 1980).

To assist regions in maintaining compliance with

those NAAQS they have attained, and making pro-

gress toward meeting those they have not, Title I es-

tablishes two independent but complementary per-

mitting programs to cover the large “industrial facili-

ties” that Congress viewed as “primarily responsible

for emission of the deleterious pollutants that befoul

our nation’s air.” Ala. Power, 636 F.2d at 353. The

first, the “prevent[ion] of significant deterioration”

program of Part C, applies to the extent an area is

already in attainment with a NAAQS. 42 U-S.C.

§ 7471. It requires that any “major emitting facili-

ty ... in any area to which this part applies” must ob-

tain a permit before engaging in certain construction

or modifications. Jd. § 7475(a)(1). “Major emitting

facility” is defined in Part C as a source “with the po-

tential to emit two hundred and fifty tons per year or

more of any air pollutant.” Jd. § 7479(1).2_ In addi-

tion, these facilities must adopt the “best available

control technology” for not only NAAQS pollutants

(those governed by Part C), but also “each pollutant

subject to regulation under [the Act].” Id.

§ 7475(a)(4).

The second program, the “nonattainment new

source review” (NNSR) program of Part D, apples to

the extent an area is not in attainment with an appli-

cable NAAQS. Id. § 7501. It precludes construction

of any “major stationary source[] anywhere in the

nonattainment area” unless the facility can demon-

strate, among other things, that its emissions will not

exceed the “lowest achievable emission rate” for any

pollutant for which the area is not attaining a

NAAQS. Id. §§ 7502(c), 7503(a).° These more strin-

gent requirements continue to apply until the local

area achieves compliance with the relevant NAAQS.

Id. Once it does, the PSD permitting provisions be-

come applicable (at least with respect to that pollu-

tant). Jd. §§ 7471, 7501; see also 45 Fed. Reg. 52676,

52711-12 (Aug. 7, 1980) (Pet. App. 237a-39a).

These programs were thus designed to act in

tandem to prevent areas in attainment from slipping

into nonattainment and to bring nonattaining areas

into attainment. See 42 U.S.C. §§ 7407, 7471, 7475,

7501-7502. Congress understood that the permitting

2 For certain types of facilities, the statute sets a lower emis-

sions threshold of 100 tons per year or more of an air pollutant,

for a source to qualify as a “major emitting facility.” 42 U.S.C.

§ 74791). For convenience, the discussion herein refers only to

the generally applicable 250 tons-per-year threshold.

4 “Major stationary source” is defined as “any stationary faciii-

ty or source of air pollutants which directly emits, or has the

potential to emit, one hundred tons per year or more of any air

pollutant.” 42 U.S.C. § 7602(j).

requirements of the programs were expensive and

burdensome, but deemed those costs acceptable

because they would be imposed only on those large

“industrial facilities” that “are financially able to bear

the substantial regulatory costs” and tnat could make

the greatest impact on local air quality through

emissions reductions. Ala. Power, 6° ° F.2d at 353.

Importantly, because these programs are comple-

mentary and “pollutant-specific,” id. at 350, they may

and often do apply concurrently to the same area and

even the same facility: for instance, when a facility

emits “major” quantities of both a NAAQS pollutant

for which the area is attaining and one for which it is

not.

b. Shortly after these provisions were enacted,

EPA undertook two rounds of rulemakings to

interpret and implement the statutory directives. 43

Fed. Reg. 26388 (June 19, 1978); 45 Fed. Reg. 52676

(Aug. 7, 1980) (Pet. App. 78a). As part of those

proceedings, EPA proposed in 1979 to interpret the

triggering provisions of the PSD and NNSR

permitting programs similarly, with each applicable

only if a facility emits “major” quantities of a NAAQS

pollutant for which the area is in either attainment

(PSD) or nonattainment (NNSR) for an applicable

NAAQS. 44 Fed. Reg. 51924, 51949 (Sept. 5, 1979).

This interpretation was consistent with the structure

and purpose of the programs, as discussed above, as

well as the language of the respective triggering

provisions. 42 U.S.C. § 7475(a)(1) (requiring PSD

permit for any “major emitting facility ... in any area

to which this part applies”), § 7502(c)(5) (requiring

NNSR permit for any “major stationary source any-

where in the non-attainment area”).

In the final rule issued in 1980, however, EPA

adopted a substantially different, and substantially

expanded, interpretation of the PSD triggering provi-

sion. 45 Fed. Reg. 52676 (Pet. App. 78a-412a). The

agency held that a facility would be subject to PSD

permitting if it emits “major” amounts of any pollu-

tant regulated under the Act, even if it emits no

NAAQS pollutants whatsoever, as long as the region

in which the facility is located has been designated as

in attainment for at least one NAAQS. Zd. at 52710-

11 (Pet. App. 232a-35a).

EPA explained that, in its view, this change was

mandated by the statutory language. /d. It reasoned

that because “major emitting facility” is defined as a

source of “any air pollutant” (which the agency read

as “any regulated air pollutant”), and because the

PSD provision covers any “major emitting facility”

located “in any area to which this part applies,” any

facility that emits “major” amounts of “any regulated

pollutant” is automatically subject to PSD permitting

if it 1s located in an area to which Part C “applies” for

any NAAQS pollutant, regardless of whether the fa-

cility itself emits that pollutant. Jd. The agency did

not acknowledge or address the numerous questions

raised by this interpretation: for example, that it

rendered the statutory phrase “in any area to which

this part applies” effectively superfluous—since all

areas in the country were then, and still are, in at-

tainment for at least one NAAQS pollutant, see 75

Fed. Reg. at 31561 (Pet. App. 705a)—and resulted in

different triggers for the PSD and NNSR programs

(the latter still limited to facilities emitting NAAQS

pollutants) despite the similar language of the provi-

sions and complementary nature of the programs.

This revised interpretation, although it theoretical-

ly expanded the scope of the PSD program when is-

sued, did not have any practical impact at that time,

or for three decades thereafter, because facilities that

emitted more than 250 tons per year of a “regulated

air pollutant” almost invariably also emitted 250 tons

per year of a NAAQS pollutant, and would thus be

subject to PSD permitting under either interpreta-

tion. See 74 Fed. Reg. 55292, 55294-95 (Oct. 27,

2009). Further, because during this period EPA dis-

claimed any interest in regulating (and even the au-

thority to regulate) greenhouse gases, there was no

reason for industry groups or others to challenge that

interpretation based on speculation over what prob-

lems or absurdities it might otherwise produce. See,

e.g., 68 Fed. Reg. 52922, 52925-31 (Sept. 8, 2003).

c. The practical inconsequence of the situation

changed dramatically, however, with EPA’s response

to this Court’s decision in Massachusetts v. EPA.

Massachusetts held that greenhouse gases fall within

the definition of “air pollutant” in Title II of the Clean

Air Act, and that EPA was required to consider a

rulemaking petition seeking regulation of greenhouse

gas emissions from motor vehicles. 549 U.S. at 528-

32.

In response, EPA commenced a new series of rule-

makings addressing greenhouse gas emissions. 74

Fed. Reg. at 55294-95. On December 15, 2009, it is-

sued its Endangerment Finding, concluding that

greenhouse gas emissions from motor vehicles “cause,

or contribute to, air pollution which may reasonably

be anticipated to endanger public health or welfare,”

and should be regulated under the mobile source pro-

visions of the Act. 74 Fed. Reg. 66496 (Dec. 15, 2009).

Thereafter, on May 7, 2010, it issued a final rule es-

tablishing standards restricting greenhouse gas

emissions from certain light-duty vehicles. 75 Fed.

Reg. 25324 (May 7, 2010).

With this regulation, known as the Tailpipe Rule,

greenhouse gases became for the first time a “regu-

lated air pollutant” under the Clean Air Act. 74 Fed.

Reg. at 55294-95. The consequences of this were po-

tentially significant and wide-ranging, as EPA recog-

nized at the time, in light of its interpretation of the

PSD permitting provision. Jd. Greenhouse gases are

emitted by a vastly greater number of stationary

sources, and at vastly higher amounts, than other

pollutants the agency had previously regulated, see

73 Fed. Reg. 44354, 44402-03 (July 30, 2008); Nat'l

Research Council, Climate Change Science 1-10

(2001); if greenhouse gas emissions themselves trig-

gered PSD permitting, millions of additional sources,

including relatively small commercial and even resi-

dential facilities, would be immediately swept into

the PSD program under the statutory “two hundred

and fifty tons per year or more” threshold, see 74 Fed.

Reg. at 55294-95. EPA estimated that the number of

annual PSD permitting actions, which had numbered

in the hundreds, would jump to more than 81,000 per

year. 75 Fed. Reg. at 31576 (Pet. App. 772a). Requir-

ing all of these new facilities to comply with permit-

ting obligations would, it said, “overwhelm permitting

authorities,” impose additional costs on these facili-

ties and local governments of potentially billions of

dollars per year, and “adversely affect national eco-

nomic development.” Jd. at 31556-57 (Pet. App. 682a-

85a).

These consequences—so clearly contrary to Con-

gress’s intent that EPA itself described them as “ab-

surd,” id. at 31557-58 (Pet. App. 688a)—prompted the

agency to undertake another rulemaking to address

them. But, although the problems were directly at-

tributable to the agency’s decision to stay wedded to

its own decades-old interpretation of the PSD permit-

ting provision, and could be corrected by simply revis-

ing that interpretation to apply only to major sources

of NAAQS pollutants (as, in fact, EPA had proposed

in 1979), EPA refused to do so. Id. at 31560-67 (Pet.

App. 701la-28a). Instead, it responded by asserting a

right to alter the statutory definition of “major emit-

ting facility” to raise by orders of magnitude the stat-

ed emissions threshold, which would have the effect

of exempting a sufficient number of sources of green-

house gas emissions to render the program managea-

ble in the agency’s view. Id. In the Tailoring Rule,

EPA directed that, for the current “phase” of regula-

tion, those facilities emitting less than 100,000 tons

per year of greenhouse gases—a 400-fold increase

above the statutory threshold of 250 tons per year—

would not be deemed “major emitting facilities” and

would thus not be subject to PSD permitting. Id.

EPA also stated it would exercise its claimed discre-

tion to make further adjustments to the statutory

threshold on an ongoing basis, based on its continu-

ing assessment of the benefits and burdens of regula-

tion and perceived capacity of local permitting au-

thorities. Jd. at 31524, 31548-49 (Pet. App. 540a-42a,

647a-48a).4

2. Numerous petitions for review were thereafter

filed in the D.C. Circuit, raising a range of challenges

to EPA’s actions, including whether EPA had statuto-

ry authority to regulate greenhouse gases at all. Pet.

App. 9a. The petitions in this case (American Chem-

istry Council v. EPA, see supra note 1), however, fo-

cused on EPA’s interpretation of the PSD provision,

as set forth in the 1980 rulemaking and the Tailoring

Rule. Id. at 56a-57a.

‘In a recent rulemaking, EPA announced that, as part of the

next “phase” of its implementation of the permitting program, it

would not lower the threshold, but continue to apply the 100,000

tons-per-year threshold. 77 Fed. Reg. 41051, 41052 (July 12,

2012).

a. The petitions for review and the underlying

cases were consolidated for purposes of hearing. Pet.

App. la-9a. A three-judge panel of the D.C. Circuit

heard argument in the cases over the course of two

days in February 2012. In a single judgment issued

on June 26, 2012, the panel rejected all of the peti-

tions. Id.

The panel devoted a substantial part of its opinion

to the issues raised in this case regarding the PSD

provision. Pet. App. 35a-67a. The panel determined

first that, although certain petitioners in other cases

lacked standing to proceed with their claims, the pe-

titioners here have standing to challenge EPA’s in-

terpretation of that provision, as set forth in the 1980

rulemaking, because some of their members would be

subject to the burdensome PSD permitting require-

ments only because EPA had interpreted those re-

quirements as being triggered by emissions of “any

regulated air pollutant,” now including greenhouse

gases. Id. at 35a-4la. Further, because these peti-

tions were filed within 60 days after issuance of the

Tailpipe Rule—the rulemaking that rendered green-

house gases a “regulated air pollutant” for the first

time—they were timely under the “grounds arising

after” judicial review provision of the Clean Air Act.

Id. at 37a (quoting 42 U.S.C. § 7607(b)(1) (“[a petition

for review] based solely on grounds arising after [six-

ty days after issuance of the challenged rulemaking]

shall be filed within sixty days after such grounds

arise”)).

Addressing the merits of EPA’s interpretation of

the PSD provision, the panel acknowledged the agen-

cy’s concession that its construction produces “absurd

results.” Pet. App. 69a-70a. Nevertheless, the panel

concluded that the agency’s interpretation must be

accepted because it represented, according to the

panel, the “unambiguous” reading of the statute. Id.

at 50a-54a. The panel held, further, that the alterna-

tive construction proposed by the petitioners, inter-

preting the PSD permitting provision as being trig-

gered only by emissions of NAAQS pollutants, was

barred by Massachusetts v. EPA. Id.

b. Several petitions for rehearing followed. Pet.

App. 415a. The petitioners argued, among other

things, that their alternative interpretation of the

PSD provision is fully consistent with Massachusetts

v. EPA. That interpretation, they explained, does not

rely on limiting the general definition of “air pollu-

tant” but, rather, flows from the language of the PSD

triggering provision, which by its terms imposes per-

mitting requirements only on facilities “to which

[Part C] applies”—i.e., facilities emitting pollutants

subject to a NAAQS. See id. at 418a, 446a-48a.

The rehearing petitions were denied on December

20, 2012. Judges Kavanaugh and Brown each filed

separate statements dissenting from the denial of re-

hearing en banc, and the panel filed a joint concur-

ring statement responding to those dissents. Pet.

App. 420a-64a. Notably, all of these statements

agreed that the “questions [implicated by] and the

outcome of this case are undoubtedly matters of ex-

ceptional importance,” with “massive real-world ccn-

sequences” not only for regulated industries but also

for the Nation’s “economic and environmental! policy.”

Id. at 419a, 444a.

In contrast to the panel’s holding that EPA’s con-

struction of the PSD permitting trigger was “com-

pelled” by the Clean Air Act, Judges Kavanaugh and

Brown found it “evident” that the most “straightfor-

ward’ and “sensible” reading of the statute is that the

trigger instead is “limited to NAAQS air pollutants,”

Pet. App. 447a-49a; see also id. at 421a (noting Judge

Brown’s agreement with Judge Kavanaugh’s opin-

ion). They found the panel’s pervasive reliance on

Massachusetts v. EPA unfounded. Id. at 43la-41a,

454a-61la. That opinion, they explained, held that the

term “any air pollutant” includes greenhouse gases 1n

the context of mobile source regulation under Title I/

of the Act, but it did not address the issue here—

whether regulation of greenhouse gas emissions from

mobile sources necessarily triggers regulation of

emissions from stationary sources. Id. at 437a-39a,

457a-58a. This is particularly true for the PSD pro-

gram, Judge Kavanaugh explained, in light of the

structure of that program, with its focus on NAAQS

pollutants, and the language of the PSD triggering

provision. Jd. at 457a-6la. Indeed, even if EPA’s in-

terpretation might otherwise have been a permissible

reading of the PSD provision, they reasoned, it was

necessarily foreclosed—and certainly could not con-

stitute the “unambiguous” interpretation of the stat-

ute—given that it admittedly produced “absurd re-

sults” inconsistent with congressional intent. Id.

Especially troubling to both Judge Brown and

Judge Kavanaugh was EPA’s response to the absurd-

ities resulting from its interpretation: promulgation

of the Tatloring Rule. Pet. App. 447a-48a. Whereas

those absurdities should have prompted EPA to adopt

a more limited interpretation of the PSD permitting

provision, the agency instead “re-wrote the very spe-

cific [threshold emissions] trigger” set forth in the Act

to reduce artificially the number of facilities subject

to PSD permitting. Id. They described this action as

“an abuse of the absurdity and administrative neces-

sity doctrines” and an “unprecedented expansion of

regulatory control.” Id. at 433a; see also id. at 447a-

49a. As Judge Kavanaugh put it: “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 prece-

dent that suggests the agency can still choose the ab-

surd reading and then start rewriting other perfectly

clear portions of the statute to try to make it all work

out.” Id. at 448a.

Judge Kavanaugh further explained that the agen-

cys analysis was particularly disturbing because it

contemplated not merely a single episode of statutory

re-writing (although that alone would have been un-

lawful), but an assertion of continuing revisionary

power in the years going forward based solely on the

agency's weighing of costs and benefits. Pet. App.

448a-49a. “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 [statutory] permitting

triggers as EPA sees fit.” Jd. at 448a n.1. If that as-

sertion of agency prerogative were upheld, he

warned, it risked “significantly enhancling] the Exec-

utive Branch’s power at the expense of Congress’s

and thereby alter[ing] the relative balance of powers

in the administrative process.” Jd. at 449a.

REASONS FOR GRANTING THE PETITION

The judgment of the court of appeals plainly war-

rants review. That decision adopts an EPA interpre-

tation of the Clean Air Act that the agency concedes

produces “absurd” consequences inconsistent with

congressional intent, and it allows the agency to ad-

dress those consequences by exercising effectively un-

restricted discretion to rewrite—on an ongoing ba-

sis—separate, explicit statutory directives in order to

revise the scope of the statute’s coverage. See Pet.

App. 447a-49a. The resulting regulatory regime, both

uncontemplated by the statute and indeed contrary to

its express terms, represents the most sweeping ex-

pansion of EPA authority in the agency’s history, po-

tentially affecting millions of enterprises across the

Nation and costing businesses and local government

billions of dollars annually. See 75 Fed. Reg. at

31533, 31540, 31563 (Pet. App. 579a-80a, 611la, 711a-

14a). This Court should intervene now, before the

agency proceeds further down this unprecedented

regulatory path.

I, REVIEW IS WARRANTED BECAUSE THE

DECISION BELOW RESTS ON AN IMPER-

MISSIBLE INTERPRETATION OF THE

CLEAN AIR ACT IN WHICH THE AGENCY

HAS ASSERTED AUTHORITY TO RE-

WRITE EXPRESS STATUTORY TERMS.

The decision below contravenes fundamental doc-

trines of statutory construction and conflicts with

scores of cases from this Court and others applying

those principles. First, it accepts an interpretation of

the PSD provision of the Clean Air Act that by EPA’s

own admission produces “absurd results”—despite

the availability of an alternative, reasonable con-

struction (indeed, one EPA proposed in 1979) that

would avoid those results. Infra Part I.A. Second, it

allows the agency to address those absurdities by re-

writing other explicit and clear statutory require-

ments, creating exemptions that were not approved

or anticipated by Congress and that are based solely

on the agency's own judgment regarding the costs

and benefits of regulation. Infra Part I.B. Either of

these holdings would warrant review of the judgment

below; taken together, they certainly do.

A. The Decision Below Adopts An Agency

Interpretation Of The Clean Air Act

That The Agency Itself Concedes Pro-

duces Absurd Results.

It is an elementary principle of statutory construc-

tion that courts must avoid an interpretation of a

statute that is demonstrably inconsistent with Con-

gress’s intent, particularly one which produces re-

sults so contrary to any conceivable legislative pur-

pose as to be deemed “absurd.” E.g., Griffin v. Ocean-

ic Contractors, Inc., 458 U.S. 564, 575 (1982). This

principle applies even when the construction at issue

might be characterized as a “literal” reading of the

provision, e.g., Trans Alaska Pipeline Rate Cases, 436

U.S. 631, 643 (1978), but it carries yet greater force

when the statutory language is reasonably subject to

alternative interpretations that would resolve the

identified absurdities, e.g., Griffin, 458 U.S. at 575.

When faced with that situation, a court cannot accept

the “absurd” interpretation, even if it might be oth-

erwise deemed “literal” or “unambiguous,” and must

adopt the alternative construction. IJd.5

The decision below contravenes this basic principle.

The interpretation it adopts, reading the PSD permit-

5 See also, e.g., Nimon v. Mo. Mun. League, 541 U.S. 125, 138

(2004); Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 286

(1961); Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,

1267 (ist Cir. 1996); Long v. Tommy Hilfiger U.S.A., Inc., 671

F.3d 371, 375 (3d Cir. 2012); Bellum v. PCE Constructors, Inc..,

407 F.3d 734, 739 (5th Cir. 2005); Breedlove v. Earthgrains Bak-

ing Cos., 140 F.3d 797, 800 (8th Cir. 1998); Ewing v. Rodgers,

826 F.2d 967, 970 n.3 (10th Cir. 1987); Silua-Hernandez v. U.S.

Bureau of Citizenship & Immigration Servs., 701 F.3d 356, 364

(11th Cir. 2012); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060,

1068 (D.C. Cir. 1998); Wassenaar v. Office of Pers. Mgmt., 21

F.3d 1090, 1094 (Fed. Cir. 1994).

ting provision to apply to facilities emitting threshold

amounts of “any regulated air pollutant,” is acknowl-

edged “[to be] inconsistent with—and, indeed, [to]

undermine—congressional purposes.” 75 Fed. Reg. at

31547 (Pet. App. 643a). EPA in fact concedes that

this interpretation produces “absurd results,” by po-

tentially sweeping into the PSD program millions of

small commercial and residential facilities that Con-

gress never intended to be subject to the burdensome

permitting requirements. Jd. at 31557-58 (Pet. App.

684a-88a). The court of appeals had no option in this

circumstance but to search for an alternative con-

struction that would avoid the absurdities and, if

available, to adopt that construction. See, e.g., Grif-

fin, 458 U.S. at 575.

The D.C. Circuit did precisely the opposite. It re-

fused to consider whether an alternative construction

might resolve the absurdities and, instead, held that

EPA’s interpretation must be accepted because it rep-

resented the “unambiguous” reading of the statute.

Pet. App. 50a-5la. That conclusion is flatly wrong as

a matter of interpretative principle: an interpreta-

tion that produces “absurd results” cannot be deemed

the “unambiguous” meaning of a statute, e.g., Lamie

v. U.S. Tr., 540 U.S. 526, 536 (2004), and cannot be

accepted by a court without at least consideration of

possible alternative constructions, e.g., Alaska Pipe-

line, 436 U.S. at 643; United States v. Am. Trucking

Ass'ns, 310 U.S. 534, 543-44 (1940). The panel’s deci-

sion violates these essential principles of statutory

construction, as set forth in numerous cases from this

Court and others.®

6 See, e.g., Griffin, 458 U.S. at 575; Church of the Holy Trinity

v. United States, 143 U.S. 457, 459-60 (1892); Conservation Law

Found., Inc. v. Busey, 79 F.3d 1250, 1267 (1st Cir. 1996); Frank

G. v. Bd. of Educ., 459 F.3d 356, 368 (2d Cir. 2006); In re Magic

There is simply no way to justify the panel’s deci-

sion given the “absurd results” produced by the inter-

pretation the panel adopts. But the decision fails

even on its own reasoning, because EPA’s interpreta-

tion clearly cannot be deemed the “unambiguous”

meaning of the statutory language. The PSD provi-

sion states that the permitting requirements of Part

C apply to a “major emitting facility ... in any area to

which this part applies.” 42 U.S.C. § 7475(a)(1).

There are at least two ways to read this phrase, if

considered solely in isolation. It might conceivably be

read, as EPA urges, to mean a facility emitting

threshold quantities of a pollutant in any area to

which Part C “applies” for any pollutant. Alternative-

ly, the phrase can be read, as the petitioners main-

tain (and as EPA itself originally concluded, see su-

pra p. 9 (citing 44 Fed. Reg. at 51949)), to mean a fa-

cility emitting threshold quantities of a pollutant in

an area to which Part C “applies” for that pollutant,

meaning that a facility is subject to the PSD program

only if it emits a NAAQS pollutant for which the local

area is attaining. That both of these interpretations

may constitute grammatically plausible readings of

the PSD provision confirms that EPA’s construction

Rests., Inc., 205 F.3d 108, 116 (3d Cir. 2000); In re Sunterra

Corp., 361 F.3d 257, 265 (4th Cir. 2004); Sykes v. Columbus &

Greenville Ry., 117 F.3d 287, 290-91 (5th Cir. 1997); United

States v. Calor, 340 F.3d 428, 431 (6th Cir. 2003); United States

v. Tex-Tow, Inc., 589 F.2d 1310, 1313 (7th Cir. 1978); Kananen

v. Matthews, 555 F.2d 667, 669-70 (8th Cir. 1977) (per curiam):

Seal 1 v. Seal A, 255 F.3d 1154, 1160 (9th Cir. 2001); Robbins v.

Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc); Mic-

cosukee Tribe of Indians v. S. Everglades Restoration Alliance,

304 F.3d 1076, 1086 (11th Cir. 2002); Ala. Power Co. v. Costle,

636 F.2d 323, 360 (D.C. Cir. 1980); Wassenaar v. Office of Per-

sonnel Mgmt., 21 F.3d 1090, 1094 (Fed. Cir. 1994).

is, at the least, not the “unambiguous” reading of the

provision.’

Indeed, when the provision is considered in context

in light of the statute’s structure and purpose, EPA’s

interpretation is clearly unreasonable. It would, for

example, render the critical phrase “in any area to

which this part applies” effectively superfluous, given

that all areas of the country are now and always have

been in attainment for at least one pollutant, 75 Fed.

Reg. at 31561 (Pet. App. 705a), meaning that never in

the statute’s history has there been a single area in

the country to which Part C does not “apply” to that

extent. Moreover, other provisions in Part C use

that same phrase in the pollutant-specific manner

suggested by the petitioners: for instance, all agree

that a provision setting concentration limits for “any

air pollutant in any area to which this part applies,”

42 U.S.C. § 7473(b)(4), governs not all pollutants in

an area but only those NAAQS pollutants for which

the area is in attainment, and to which Part C there-

fore “applies.” Pet. App. 59a-6la.9 And it is undis-

puted that Congress intended that the PSD permit-

ting requirements would be imposed only on large

“industrial facilities’>—not small commercial and resi-

dential sources of greenhouse gases—that “are finan-

7 See, e.g., Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409, 419 n.2 (2005) (a

statute is ambiguous when “its text, literally read, admits of two

plausible interpretations”).

8 See also, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A

statute should be construed ... so that no part will be inoperative

or superfluous ....”) (quoting 2A N. Singer, Statutes and Statuto-

ry Construction § 46.06 (6th ed. 2000)).

9 See also, e.g., Powerex Corp v. Reliant Energy Servs., Inc.,

551 U.S. 224, 232 (2007) (“[I]dentical words and phrases within

the same statute should normally be given the same meaning.”).

cially able to bear the substantial regulatory costs ...

{and,] as a group, are primarily responsible for emis-

sion of the deleterious pollutants that befoul our na-

tion’s air.” Ala. Power, 636 F.2d at 353.

Nor can EPA’s position be deemed a “literal” con-

struction of the statutory text, as EPA has claimed.

75 Fed. Reg. at 31516-17 (Pet. App. 507a-lla). Far

from it, EPA’s interpretation—unlike the petition-

ers —admittedly adds limiting language to the stat-

ute, construing the phrase “any air pollutant” in the

definition of “major emitting facility” to read instead

“any regulated air pollutant.” Pet. App. 47a-49a (em-

phasis added). Although EPA argues that this addi-

tion is required in order to avoid a host of absurd re-

sults that would be caused by applying the PSD pro-

gram to sources of unregulated pollutants (beyond

the absurdities resulting from EPA’s current inter-

pretation), see 75 Fed. Reg. at 31516-17 (Pet. App.

507a-1la), the fact remains that EPA’s interpretation

is by its own terms not a literal one. '°

That interpretation is also, as Judge Kavanaugh

noted, plainly inconsistent with the statutory struc-

ture and congressional intent. It finds no support in

the surrounding statutory language, and it fails even

to address the absurdities identified by the agency, as

it would not prevent the millions of enterprises that

emit threshold amounts of only greenhouse gases—

which Congress undoubtedly did not intend to be sub-

ject to PSD permitting requirements—from being

10 See, e.g., Lamie, 540 U.S. at 538 (cautioning against inter-

pretations that would “read an absent word into the statute”); cf.

Kloeckner v. Solis, 133 S. Ct. 596, 606-07 (2012) (refusing to

adopt interpretation of statute, despite government's claim that

its construction was needed to avoid “absurd results,” when that

interpretation “requires our reading new words into the statute”

and when an alternative interpretation exists).

swept into the PSD program.'! The only reasonable

approach in this regard is the one suggested by Judge

Kavanaugh. That approach would resolve those ab-

surdities by reading the phrase “any air pollutant” in

this context to mean “any NAAQS pollutant,” thereby

excluding from the PSD program sources of only

greenhouse gas emissions in accordance with the

purpose and focus of the statute. Pet. App. 449a-

54a.

11 When Congress wanted to refer to pollutants “subject to

regulation” under the Act, it clearly knew how to do so, as

demonstrated by another provision of Part C that requires facili-

ties to adopt the “best available control technology” jor “each

pollutant subject to regulation under this chapter.” 42 U.S.C.

§ 7475(a)(4); see also, e.g., Russello v. United States, 464 U.S. 16,

22-23 (1983) (“[W]here Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intention-

ally and purposely in the disparate inclusion or exclusion.”).

'2]t should be noted that the alternative interpretation ad-

vanced by this petition and Judge Kavanaugh would not pre-

clude all regulation of greenhouse gas emissions in the station-

ary source context. For example, facilities subject to the PSD

permitting program, based on their emissions of NAAQS pollu-

tants, would still be required under this interpretation to adopt

the “best available control technology” for greenhouse gas emis-

sions under 42 U.S.C. § 7475(a)(4) in their PSD permit, assum-

ing greenhouse gases are properly considered a “pollutant sub-

ject to regulation” for purposes of that provision. Pet. App. 45la.

This interpretation would therefore still cover 83% of the na-

tional greenhouse gas emissions that would otherwise be cov-

ered by EPA’s construction—in contrast with EPA’s Tailoring

Rule, which by rewriting the statutory thresholds covers 86% of

those emissions. See 75 Fed. Reg. at 31540, 31568, 31571, 31600

(Pet. App. 6l1la, 736a, 748a, 87la). Phrased differently, EPA’s

approach would impose on affected businesses and regulators

the substantial costs associated with the expanded permitting

program, delaying (and possibly in some cases effectively prohib-

iting) construction and dealing potentially serious damage to the

national economy, in order to obtain an increase in emissions

The decision below adopts a non-literal interpreta-

tion of an ambiguous statutory provision that affirm-

atively adds language to the statute and admittedly

produces absurd results inconsistent with congres-

sional intent, all while categorizing the statute as

“unambiguous.” See Pet. App. 50a-5la. That deci-

sion contravenes basic principles of statutory con-

struction, warranting this Court’s review.

B. The Decision Below Allows The Agency

To Rewrite Express And Unequivocal

Statutory Terms.

However problematic the panel's interpretation of

the PSD permitting provision, EPA’s response to the

absurdities created by that interpretation raises po-

tentially far greater concerns. To address those ab-

surdities, the agency did not reconsider its interpre-

tation of the statute, or apply to Congress for relief.

Instead, through the Tailoring Rule, it arrogated to

itself authority to unilaterally modify express statu-

tory thresholds set forth in the Clean Air Act and ex-

empt from the definition of “major emitting facility,”

which by its terms applies to sources of 250 tons or

more per year of “any air pollutant,” those facilities

emitting less than 100,000 tons per year of green-

house gases. 75 Fed. Reg. at 31560-62 (Pet. App.

701a-08a). Nothing in the statute supports or au-

thorizes this new threshold; rather, it is entirely of

the agency’s own crafting, based on its views of a

“reasonable balancing of protection of the environ-

ment with promotion of economic development.” Id.

at 31573 (Pet. App. 755a).

coverage of only 3% over the coverage produced by the alterna-

tive interpretation supported by the petitioners and Judge

Kavanaugh.

Agencies cannot unilaterally revise acts of Congress

in this way. This basic principle, central to our sys-

tem of separated powers, has been recognized in case

after case. See, e.g., Kloeckner, 133 S. Ct. at 606-07;

In re Permian Basin Area Rate Cases, 390 U.S. 747,

777 (1968); see also Mova Pharm. Corp. v. Shalala,

140 F.3d 1060, 1068 (D.C. Cir. 1998) (an agency faced

with a perceived “statutory anomaly” does not “there-

by obtain a license to rewrite the statute”). It is in-

deed the guiding tenet that underlies all of this

Court’s administrative agency jurisprudence, from

Chevron to Mead to Brand X. An agency may exer-

cise only that interpretative authority that is con-

ferred by Congress, and may not construe or apply a

statute in a manner contrary to or inconsistent with

its terms. See Nat? Cable & Telecomms. Ass'n v.

Brand X Internet Servs., 545 U.S. 967, 983 (2005);

United States v. Mead Corp., 533 U.S. 218, 231-33

(2001); Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.

837, 842-43 (1984).'5

There is no way to reconcile the Tailoring Rule with

these precedents. That rule alters express and un-

ambiguous statutory terms in a manner that was

plainly not contemplated by Congress, and it cannot

be regarded as a valid exercise of authority con-

ferred—either explicitly or implicitly—by any provi-

sion of the statute. Pet. App. 448a-49a & n.l

(Kavanaugh, J.) (“Put simply, the statute cannot be

read to grant discretion to EPA to raise or lower the

'3 See also, e.g., Green v. Bock Laundry Mach. Co., 490 U.S.

504, 529 (1989) (Scalia, J. concurring) (when faced with an am-

biguity, courts must adopt an interpretation that / es the “least

violence to the text”); Mova, 140 F.3d at 1068 (“When the agency

concludes that a literal reading of a statute would thwart the

purposes of Congress, it may deviate no further from the statute

than is needed to protect congressional intent.”).

permitting triggers as EPA sees fit.”). It is, instead, a

bald assumption and exercise of legislative power by

an Executive Branch agency and, as the dissenting

members of the en banc panel noted, a blatant viola-

tion of separation of powers principles. Id.

The justification offered by EPA for its action is

that it was required to adopt the Tailoring Rule as a

matter of “administrative necessity,” in order to ren-

der the PSD program manageable as applied to

greenhouse gases. 75 Fed. Reg. at 31541-47 (Pet.

App. 617a-39a). However, neither the “administra-

tive necessity” doctrine nor any other principle allows

an agency to alter the methods dictated by Congress

or to modify or ignore statutory mandates, as EPA

has done in the Tailoring Rule. Even when strict

compliance with a statute might be deemed adminis-

tratively difficult, or even “impossible,” courts may not

grant to an agency “general administrative power to

create exemptions to statutory requirements based

upon the agency’s perceptions of costs and benefits.”

Ala. Power, 636 F.2d at 357-58; see also, e.g.,

Kloeckner, 133 S. Ct. at 606-07. That is, however, ef-

fectively what the court of appeals did here. 4

‘4 This is, in any event, not a situation in which an agency has

taken “incremental” steps that, while not satisfying statutory

goals in full, are arguably consistent with the statute and within

the bounds of delegated authority. Cf., e.g., Massachusetts, 549

U.S. at 524. Rather, the agency in this case has seized authority

that is not granted by the statute and adopted a regulation that

directly contravenes the statutory language by changing the

statutory thresholds established by Congress. Indeed, EPA has

determined that it may adopt “permanent exclusion|s]” from the

statutory PSD requirements for certain sources that, in the

agency's view, are “too small” or “inconsequential in terms of

[greenhouse gas] contribution” to merit regulation. 75 Fed. Reg.

at 31524 (Pet. App. 541a).

Resort to these doctrines is particularly inappropri-

ate in this case, given that the agency has itself cre-

ated the purported “necessity” on which it seeks to

rely. The only reason EPA needs (in its view) to re-

write the statute, relying on doctrines of administra-

tive necessity and the like, is because of the absurdi-

ties created by its own interpretation of the Act. See

75 Fed. Reg. at 31541-47 (Pet. App. 617a-39a). But it

is well-established, by this Court’s precedent and the

law of all circuits, that the proper remedy for an

agency interpretation that would create undue ad-

ministrative difficulties is not for a court to “manu-

facture for [the] agency a revisory power” but, rather,

for the agency to adopt an alternative, reasonable

construction of the statute. Ala. Power, 636 F.2d at

357-58; see also, e.g., Kloeckner, 133 S. Ct. at 606-07.

Only that result is consistent with the principles of

Chevron and its progeny: agencies may tm appropri-

ate circumstances have discretion to choose among

“reasonable” alternative interpretations of a provi-

sion, but they never have authority to select one that

is contrary to the statute. E.g., 467 U.S. at 842-43.

15 The panel made no attempt to justify the unprecedented in-

terpretive exercise reflected in the Tailoring Rule, reasoning

that it need not consider that rulemaking once it determined

that EPA's interpretation of the PSD provision was “unambigu-

ous.” Pet. App. 50a-5la. But this ignores that the validity of

EPA's interpretation of the PSD permitting provision is inextri-

cably tied to the validity of the Tailoring Rule, as the Tailoring

Rule provides the sole means by which EPA can, in the agency's

view, address the absurdities created by that interpretation.

See 75 Fed. Reg. at 31541-47 (Pet. App. 617a-39a). Indeed, it is

uncontested that, if EPA’s interpretation of the PSD provision

were set aside, the Tatloring Rule would also have to vacated,

because EPA's sole rationale for “tailoring” the statutory thresh-

olds would have been eiiminated. See also supra note 1. As not-

ed previously, supra pp. 13-14, in contrast to certain other peti-

The decision below represents a dramatic departure

from prior opinions interpreting the Clean Air Act

and other statutes, and seriously undermines the

Court’s jurisprudence in this field, which has consist-

ently emphasized the need for strict adherence by

agencies to congressional commands. E.g., id.; see

also, e.g., Kloeckner, 133 S. Ct. at 606-07; Griffin, 458

U.S. at 575; Ala. Power, 636 F.2d at 357-58. To ad-

dress this conflict, and reinforce governing adminis-

trative law doctrine and basic separation of powers

principles, certiorari should be granted.

Il. REVIEW IS WARRANTED IN LIGHT OF

THE EXTRAORDINARY NATIONAL IM-

PORTANCE OF EPA’S REGULATION OF

GREENHOUSE GAS EMISSIONS.

The panel’s decision would warrant review in any

event in light of the exceptional national importance

of this case. The regulations at issue were adopted as

a direct result of EPA’s reading of this Court’s opin-

ion in Massachusetts v. EPA, which itself acknowl-

edged the “unusual importance” of questions regard-

ing the scope of EPA’s authority and responsibility to

regulate greenhouse gas emissions. 549 U.S. at 505-

06. Those questions are no less important now that

EPA has undertaken greenhouse gas regulation; to

the contrary, they have assumed even greater signifi-

cance.

Whereas the impact of EPA’s decision not to regu-

late greenhouse gas emissions in Massachusetts was

prospective and largely speculative, relating to as-

serted future risks from climate change, see id., the

impacts of the EPA regulations at issue in this case

tioners, the panel unequivocally held that the petitioners in this

case have standing to challenge EPA's interpretation of the PSD

provision.

are immediate, concrete, and massive. Those regula-

tions extend EPA’s regulatory reach to millions of

new sources across the Nation, potentially affecting

every sector and every business in the country. See,

e.g., 75 Fed. Reg. at 31526, 31597 (Pet. App. 551a,

861la). EPA reports that its current “phase” of regu-

lations will alone give rise to permitting costs of more

than $30.5 million per year. EPA, Regulatory Impact

Analysis for the Final Prevention of Significant Dete-

rioration and Title V Greenhouse Gas Tailoring Rule,

attach. C at 23 tbl.3-1, 28 tbl.3-2 (2010); see also 75

Fed. Reg. at 31571 (Pet. App. 746a). This does not

include the costs to install and operate more expen-

sive equipment and systems to meet PSD permitting

requirements (including the “best available control

technology” to address greenhouse gas emissions),

which are just now evolving and which will likely im-

plicate far greater expenditures. Total costs could,

EPA estimates, increase to more than $50 billion per

year if in future “phases” the agency chooses to im-

plement the PSD program at the statutory threshold

of 250 tons per year. 75 Fed. Reg. at 31533, 31540,

31563 (Pet. App. 579a-80a, 6l1la, 71la-14a). EPA it-

self acknowledges that these costs—as well as the an-

ticipated significant delays in construction associated

with the expanded PSD permitting program—could

have “adverse[ ] [e]}ffect[s] ... [on] economic develop-

ment” in the Nation. Jd. at 31557 (Pet. App. 685a).

The importance of these questions is not, however,

limited to economic and practical concerns, but impli-

cates also the jurisprudential consequences of the de-

cision below. That decision represents a drastic

break from settled jurisprudence, of both this Court

and all circuit courts (including other opinions of the

D.C. Circuit), recognizing that agency authority must

be strictly circumscribed according to and within the

bounds set by governing statute. Supra pp. 25-26. If

the panel’s opinion stands, and other courts follow its

reasoning, the result would be a dramatic expansion

of agency power at the expense of Congress. It is not

too much to say, as one of the dissenting judges below

remarked, that “the bedrock underpinnings of our

system of separation of powers are at stake.” Pet.

App. 462a (Kavanaugh, J.) (“If a court mistakenly al-

lows an agency’s transgression of statutory limits,

then we green-light a significant shift of power from

the Legislative Branch to the Executive Branch.”).

This case is one that warrants this Court’s review

regardless of whether the panel’s decision is viewed

as right or wrong. The regulatory regime upheld by

that decision constitutes the most significant expan-

sion of EPA’s authority in the agency’s history, and it

was adopted in response to this Court’s opinion in

Massachusetts. See Pet. App. 3a-4a. These issues

should be considered by this Court before EPA pro-

ceeds further down this unprecedented regulatory

path.

CONCLUSION

For the foregoing reasons,

certiorari should be granted.

the petition for a writ of

Respectfully submitted,

PETER D. KEISLER*

ROGER R. MARTELLA, JR.

TIMOTHY K. WEBSTER

QUIN M. SORENSON

JOSHUA C. HESS

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-8000

pkeisler@sidley.com

Counsel for Petitioners

April 18, 2013

* Counsel of Record

APPENDIK

12-1248

No. 12-

IN THE

Supreme Court of the United States

AMERICAN CHEMISTRY COUNCIL, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the D.C. Circuit

PETITION APPENDIX VOL. VII

PETER D. KEISLER*

ROGER R. MARTELLA, JR.

TIMOTHY K. WEBSTER

QUIN M. SORENSON

JOSHUA C. HESS

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pkeisler@sidley.com

Counsel for Petitioners

April 18, 2013 * Counsel of Record

AAS AS A TT ETI

VWILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

VOLUME I

APPENDIX A: Coalition for Responsible Reg-

ulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir.

RENE RT RATT la

APPENDIX B: Requirements for Preparation,

Adoption, and Submittal of Implementation

Plans; Approval and Promulgation of Im-

plementation Plans, 45 Fed. Reg. 52676

SEE, Wis, TE ci eiieninhieneidcinsindachtanilitntinndinebinnmadcisniinisiiinic 78a

APPENDIX C: Coalition for Responsible Reg-

ulation, Inc. v. EPA, Nos. 09-1322 et al.

(D.C. Cir. Dec. 20, 2012) (order denying re-

SD cincrnninniccnsinndascinenedisinsiiitanninindente 4l13a

VOLUME II

APPENDIX D: Federal Statutes....................... 465a

APPENDIX E: Prevention of Significant De-

terioration and Title V Greenhouse Gas Tai-

loring Rule, 75 Fed. Reg. 31514 (June 3,

APPENDIX A

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

Nos. 09-1322, 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, 10-1073, 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, 10-1092, 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, 10-1167, 10-1168, 10-1169,

10-1170, 10-1173, 10-1174, 10-1175, 10-1176,

10-1177, 10-1178, 10-1179, 10-1180.

COALITION FOR RESPONSIBLE REGULATION, INC., et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

STATE OF MICHIGAN, et ail.,

Intervenors.

COALITION FOR RESPONSIBLE REGULATION, INC., e¢ al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

AMERICAN FROZEN FOOD INSTITUTE, et al.,

Intervenors.

COALITION FOR RESPONSIBLE REGULATION, INC., e¢ ai.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

LANGBOARD, INC.-MDF, et al.,

Intervenors.

AMERICAN CHEMISTRY COUNCIL,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY 4") LISA PEREZ

JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY,

Respondents,

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, et al.,

Intervenors.

Argued Feb. 28 and 29, 2012.

Decided June 26, 2012.

On Petitions for Review of Final Actions of the

Environmental Protection Agency

Before: SENTELLE, Chief Judge; ROGERS and

TATEL, Circuit Judges

Opinion for the Court filed PER CURIAM

PER CURIAM:

Following the Supreme Court’s decision in Massa-

chusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167

L.Ed.2d 248 (2007)—which clarified that greenhouse

gases are an “air pollutant” subject to regulation

under the Clean Air Act (CAA)—the Environmental

Protection Agency promulgated a series of green-

house gas-related rules. First, EPA issued an Endan-

germent Finding, in which it determined that green-

house gases may “reasonably be anticipated to

endanger public health or welfare.” See 42 U.S.C.

§ 7521(aX1). Next, it issued the Tailpipe Rule, which

set emission standards for cars and light trucks.

Finally, EPA determined that the CAA requires

major stationary sources of greenhouse gases to

obtain construction and operating permits. But

because immediate regulation of all such sources

would result in overwhelming permitting burdens on

permitting authorities and sources, EPA issued the

Timing and Tailoring Rules, in which it determined

that only the largest stationary sources would

initially be subject to permitting requirements.

Petitioners, various states and industry groups,

challenge all these rules, arguing that they are based

on improper constructions of the CAA and are other-

wise arbitrary and capricious. But for the reasons

set forth below, we conclude: 1) the Endangerment

Finding and Tailpipe Rule are neither arbitrary nor

capricious; 2) EPA’s interpretation of the governing

CAA provisions is unambiguously correct; and 3) no

petitioner has standing to challenge the Timing and

Tailoring Rules. We thus dismiss for lack of juris-

diction all petitions for review of the Timing and

Tailoring Rules, and deny the remainder of the

petitions.

We begin with a brief primer on greenhouse gases.

As their name suggests, when released into the

atmosphere, these gases act “like the ceiling of a

greenhouse, trapping solar energy and retarding the

escape of reflected heat.” Massachusetts v. EPA, 549

U.S. at 505, 127 S.Ct. 1438. A wide variety of modern

human activities result in greenhouse gas emissions;

cars, power plants, and industrial sites all release

significant amounts of these heat-trapping gases.

In recent decades “[a] well-documented rise in

global temperatures has coincided with a significant

increase in the concentration of [greenhouse gases] in

the atmosphere.” Jd. at 504-05, 127 S.Ct. 1438. Many

scientists believe that mankind’s greenhouse gas

emissions are driving this climate change. These

scientists predict that global climate change will

cause a host of deleterious consequences, including

drought, increasingly severe weather events, and

rising sea levels.

The genesis of this litigation came in 2007, when

the Supreme Court held in Massachusetts v. EPA,

that greenhouse gases “unambiguous[ly]” may be

regulated as an “air pollutant” under the Clean Air

Act (“CAA”). Id. at 529, 127 S.Ct. 1438. Squarely

rejecting the contention—then advanced by EPA—

that “greenhouse gases cannot be ‘air pollutants’

within the meaning of the Act,” id. at 513, 127 S.Ct.

1438, the Court held that the CAA’s definition of

“air pollutant” “embraces all airborne compounds of

whatever stripe.” Jd. at 529, 127 S.Ct. 1438 (empha-

sis added). Moreover, because the CAA requires EPA

to establish motor-vehicle emission standards for

“any air pollutant ... which may reasonably be

anticipated to endanger public health or welfare,” 42

U.S.C. § 7521(aX1) (emphasis added), the Court held

that EPA had a “statutory obligation” to regulate

harmful greenhouse gases. Id. at 534, 127 S.Ct. 1438.

“Under the clear terms of the Clean Air Act,” the

Court concluded, “EPA can avoid taking further

action only if it determines that greenhouse gases do

not contribute to climate change or if it provides some

reasonable explanation as to why it cannot or will not

exercise its discretion to determine whether they do.”

Id. at 533, 127 S.Ct. 1438. The Court thus directed

EPA to determine “whether sufficient information

exists to make an endangerment finding” for green-

house gases. Id. at 534, 127 S.Ct. 1438.

Massachusetts v. EPA spurred a cascading series of

greenhouse gas-related rules and regulations. First,

in direct response to the Supreme Court’s directive,

EPA issued an Endangerment Finding for green-

house gases. Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section 202(a)

of the Clean Air Act (“Endangerment Finding”), 74

Fed. Reg. 66,496 (Dec. 15, 2009). The Endangerment

Finding defined as a single “air pollutant” an “aggre-

gate group of six long-lived and directly-emitted

greenhouse gases” that are “well mixed” together in

the atmosphere and cause global climate change:

carbon dioxide, methane, nitrous oxide, hydrofluoro-

carbons, perfluorocarbons, and sulfur hexafluoride.

Id. at 66,536-37. Following “common practice,” EPA

measured the impact of these gases on a “carbon

dioxide equivalent basis,” (CO,e) which is based on the

gases’ “warming effect relative to carbon dioxide...

over a specified timeframe.” Id. at 66,519. (Using the

carbon dioxide equivalent equation, for example, a

mixture of X amount of nitrous oxide and Y amount

of sulfur hexafluoride is expressed as Z amount of

CO,e). After compiling and considering a considerable

body of scientific evidence, EPA concluded that

motor-vehicle emissions of these six well-mixed gases

“contribute to the total greenhouse gas air pollution,

and thus to the climate change problem, which is

reasonably anticipated to endanger public health and

welfare.” Id. at 66,499.

Next, and pursuant to the CAA’s requirement

that EPA establish motor-vehicle emission standards

for “any air pollutant .. . which may reasonably be

anticipated to endanger public health or welfare,” 42

U.S.C. § 7521(aX(1), the agency promulgated its Tail-

pipe Rule for greenhouse gases. Light-Duty Vehicle

Greenhouse Gas Emission Standards and Corporate

Average Fuel Economy Standards; Final Rule (“Tail-

pipe Rule”), 75 Fed. Reg. 25,324 (May 7, 2010). Effec-

tive January 2, 2011, the Tailpipe Rule set green-

house gas emission standards for cars and light

trucks as part of a joint rulemaking with fuel econ-

omy standards issued by the National Highway Traf-

fic Safety Administration (NHTSA). Id. at 25,326.

Under EPA’s longstanding interpretation of the

CAA, the Tailpipe Rule automatically triggered

regulation of stationary greenhouse gas emitters

under two separate sections of the Act. The first, the

Prevention of Significant Deterioration of Air Quality

(PSD) program, requires state-issued construction

permits for certain types of stationary sources—for

example, iron and steel mill plants—if they have the

potential to emit over 100 tons per year (tpy) of “any

air pollutant.” See 42 U.S.C. §§ 7475; 74791). All

other stationary sources are subject to PSD permit-

ting if they have the potential to emit over 250 tpy of

“any air pollutant.” Id. § 74791). The second provi-

sion, Title V, requires state-issued operating permits

for stationary sources that have the potential to emit

at least 100 tpy of “any air pollutant.” Id. § 7602(j).

EPA has long interpreted the phrase “any air pollu-

tant” in both these provisions to mean any air pollu-

tant that is regulated under the CAA. See Require-

ments for Preparation, Adoption, and Submittal of

Implementation Plans; Approval and Promulgation of

Implementation Plans (“1980 Implementation Plan

Requirements”), 45 Fed. Reg. 52,676, 52,711 (Aug. 7,

1980) (PSD program); Prevention of Significant Det-

erioration and Title V Greenhouse Gas Tailoring Rule

(“Tailoring Rule”), 75 Fed. Reg. 31,514, 31,553-54

(June 3, 2010) (discussing history of Title V regula-

tion and applicability). And once the Tailpipe Rule

set motor-vehicle emission standards for greenhouse

gases, they became a regulated pollutant under the

Act, requiring PSD and Title V greenhouse permit-

ting.

Acting pursuant to this longstanding interpretation

of the PSD and Title V programs, EPA issued two

rules phasing in stationary source greenhouse gas

regulation. First, in the Timing Rule, EPA concluded

that an air pollutant becomes “subject to regulation”

under the Clean Air Act—and thus subject to PSD

and Title V permitting—only once a _ regulation

requiring control of that pollutant takes effect. Recon-

sideration of Interpretation of Regulations That

Determine Pollutants Covered by Clean Air Act Per-

mitting Programs (“Timing Rule”), 75 Fed. Reg.

17,004 (Apr. 2, 2010). Therefore, EPA concluded,

major stationary emitters of greenhouse gases would

be subject to PSD and Title V permitting regulations

on January 2, 2011—the date on which the Tailpipe

Rule became effective, and thus, the date when

greenhouse gases first became regulated under the

CAA. Id. at 17,019.

Next, EPA promulgated the Tailoring Rule. In the

Tailoring Rule, EPA noted that greenhouse gases are

emitted in far greater volumes than other pollutants.

Indeed, millions of industrial, residential, and com-

mercial sources exceed the 100/250 tpy statutory

emissions threshold for CO,e. Tailoring Rule, 75 Fed.

Reg. at 31,534-36. Immediately adding these sources

to the PSD and Title V programs would, EPA pre-

dicted, result in tremendous costs to industry and

state permitting authorities. See id. As a result, EPA

announced that it was “relieving overwhelming per-

mitting burdens that would, in the absence of this

rule, fall on permitting authorities and sources.” Id.

at 31,516. Departing from the CAA’s 100/250 tpy

emissions threshold, the Tailoring Rule provided that

only the largest sources—those exceeding 75,000 or

100,000 tpy CO,e, depending on the program and

project—would initially be subject to greenhouse gas

permitting. Jd. at 31,523. (The Tailoring Rule further

provided that regulated sources must also emit

greenhouse gases at levels that exceed the 100/250

tpy emissions threshold on a mass basis. That is, they

must emit over 100/250 tpy of actual pollutants, in

addition to exceeding the 75,000/100,000 tpy carbon

dioxide equivalent. Id. at 31,523.)

A number of groups—including states and regu-

lated industries—filed petitions for review of EPA’s

greenhouse gas regulations, contending that the

agency misconstrued the CAA and otherwise acted

arbitrarily and capriciously. This appeal consolidates

the petitions for review of use four aforementioned

rules: the Endangerment Finding, the Tailpipe Rule,

the Timing Rule, and the Tailoring Rule.

“The Clean Air Act empowers us to reverse the

Administrator’s action in rulemaking if it is ‘arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.” Med. Waste Inst.

& Energy Recovery Council v. EPA, 645 F.3d 420,

424 (D.C.Cir.2011) (quoting 42 U.S.C. § 7607(d\(9XA)).

Questions of statutory interpretation are governed by

the familiar Chevron two-step: “First . . . 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.”

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

Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778,

81 L.Ed.2d 694 (1984). But “if the statute is silent or

ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer

is based on a permissible construction of the statute.”

Id. at 843, 104 S.Ct. 2778.

This opinion proceeds in several steps. Part II ex-

plains why the Endangerment Finding was neither

arbitrary nor capricious, while Part III does the same

for the Tailpipe Rule. Turning to stationary source

regulation, Part [IV examines whether any petitioners

may timely challenge EPA’s longstanding interpreta-

tion of the PSD statute. Because we conclude that

they may, Part V addresses the merits of their statu-

tory arguments, and explains why EPA’s interpreta-

10a

tion of the CAA was compelled by the statute. Next,

Part VI explains why petitioners lack standing to

challenge the Timing and Tailoring Rules them-

selves. Finally, Part VII disposes of several argu-

ments that have nothing to do with the rules under

review, and thus are not properly before us.

Il.

We turn first to State and Industry Petitioners’

challenges to the Endangerment Finding, the first of

the series of rules EPA issued after the Supreme

Court remanded Massachusetts v. EPA. In the deci-

sion ordering the remand, the Supreme Court held

that EPA had failed in its statutory obligations when

it “offered no reasoned explanation for its refusal to

decide whether greenhouse gases cause or contribute

to climate change.” Massachusetts v. EPA, 549 US.

at 534, 127 S.Ct. 1438. On remand, EPA compiled a

substantial scientific record, which is before us in the

present review, and determined that “greenhouse

gases in the atmosphere may reasonably be antici-

pated both to endanger public health and to endanger

public welfare.” Endangerment Finding, 74 Fed. Reg.

at 66,497. EPA went on to find that motor-vehicle

emissions of greenhouse gases “contribute to the total

greenhouse gas air pollution, and thus to the climate

change problem, which is reasonably anticipated to

endanger public health and welfare.” Id. at 66,499.

State and Industry Petitioners challenge several

aspects of EPA’s decision, including (1) EPA’s inter-

pretation of CAA § 202(aX(1), which sets out the

endangerment-finding standard; (2) the adequacy of

the scientific record supporting the Endangerment

Finding; (3) EPA’s decision not to “quantify” the risk

of endangerment to public health or welfare created

lla

by climate change; (4) EPA’s choice to define the “air

pollutant” at issue as an aggregate of six greenhouse

gases; (5) EPA’s failure to consult its Science Advi-

sory Board before issuing the Endangerment Find-

ing; and (6) EPA’s denial of all petitions for reconsid-

eration of the Endangerment Finding. We ultimately

conclude that the Endangerment Finding is con-

sistent with Massachusetts v. EPA and the text and

structure of the CAA, and is adequately supported by

the administrative record.

Industry Petitioners contend that EPA improperly

interpreted CAA § 202(a)(1) as restricting the

Endangerment Finding to a science-based judgment

devoid of considerations of policy concerns and

regulatory consequences. They assert that CAA

§ 202(aX1) requires EPA to consider, e.g., the benefits

of activities that require greenhouse gas emissions,

the effectiveness of emissions regulation triggered by

the Endangerment Finding, and the potential for

societal adaptation to or mitigation of climate change.

They maintain that eschewing those considerations

also made the Endangerment Finding arbitrary and

capricious.

These contentions are foreclosed by the language

of the statute and the Supreme Court’s decision in

Massachusetts v. EPA. Section 202(a) of the CAA

states in relevant part that EPA’s Administrator

shall by regulation prescribe (and from time to

time revise) in accordance with the provisions of

this section, standards applicable to the emission

of any air pollutant from any class or classes of

new motor vehicles or new motor vehicle engines,

12a

which in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to

endanger public health or welfare.

42 US.C. § 7521(aX1). This language requires

that the endangerment evaluation “relate to whether

an air pollutant ‘cause[s], or contributel[s] to, air

pollution which may reasonably be anticipated to

endanger public health or welfare.” Massachusetts v.

EPA, 549 U.S. at 532-33, 127 S.Ct. 1438. At bottom,

§ 202(aX1) requires EPA to answer only two ques-

tions: whether particular “air pollution’—here,

greenhouse gases—“may reasonably be anticipated

to endanger public health or welfare,” and whether

motor-vehicle emissions “cause, or contribute to” that

endangerment.

These questions require a “scientific judgment”

about the potential risks greenhouse gas emissions

pose to public health or welfare—not policy discus-

sions. Massachusetts v. EPA, 549 U.S. at 534, 127,

S.Ct. 1438. In Massachusetts v. EPA, the Supreme

Court rebuffed an attempt by EPA itself to inject

considerations of policy into its decision. At the time,

EPA had “offered a laundry list of reasons not to

regulate” greenhouse gases, including

that a number of voluntary Executive Branch

programs already provide an effective response

to the threat of global warming, that regulating

greenhouse gases might impair the President’s

ability to negotiate with “key developing nations”

to reduce emissions, and that curtailing motor-

vehicle emissions would reflect “an inefficient,

piecemeal approach to address the climate change

issue.”

13a

Id. at 633, 127 S.Ct. 1438 (citations omitted). The

Court noted that “these policy judgments .. . have

nothing to do with whether greenhouse gas emissions

contribute to climate change. Still less do they

amount to a reasoned justification for declining to

form a scientific judgment.” Id. at 533-34, 127 S.Ct.

1438. In the Court’s view, EPA’s policy-based expla-

nations contained “no reasoned explanation for

{[EPA’s] refusal to decide” the key part of the endan-

germent inquiry: “whether greenhouse gases cause or

contribute to climate change.” Jd. at 534, 127 S.Ct.

1438.

As in Massachusetts v. EPA, a “laundry list of

reasons not to regulate” simply has “nothing to do

with whether greenhouse gas emissions contribute to

climate change.” Id. at 533-34, 127 S.Ct. 1438. The

additional exercises State and Industry Petitioners

would have EPA undertake-—-e.z., performing a cost-

benefit analysis for greenhouse gases, gauging the

effectiveness of whatever emission standards EPA

would enact to limit greenhouse gases, and predicting

society's adaptive response to the dangers or harms

caused by climate change—do not inform the “scien-

tific judgment” that § 202(aX1) requires of EPA.

Instead of focusing on the question whether green-

house gas emissions may reasonably be anticipated to

endanger public health or welfare, the factors State

and Industry Petitioners put forth only address what

might happen were EPA to answer that question in

the affirmative. As EPA stated in the Endangerment

Finding, such inquiries “muddle the rather straight-

forward scientific judgment about whether there may

be endangerment by throwing the potential impact of

responding to the danger into the initial question.”

74 Fed. Reg. at 66,515. To be sure, the subsection

l4a

following § 202(aX1), § 202(aX(2), requires that EPA

address limited questions about the cost of compli-

ance with new emission standards and the avail-

ability of technology for meeting those standards, see

infra Part III, but these judgments are not part of the

§ 202(aX1) endangerment inquiry. The Supreme

Court made clear in Massachusetts v. EPA that it was

not addressing the question “whether policy concerns

can inform EPA’s actions in the event that it makes

such a finding,” 549 U.S. at 534-35, 127 S.Ct. 1438,

but that policy concerns were not part of the calculus

for the determination of the endangerment finding in

the first instance. The Supreme Court emphasized

that it was holding “that EPA must ground its

reasons for action or inaction in the statute.” Id. at

535, 127 S.Ct. 1438. The statute speaks in terms of

endangerment, not in terms of policy, and EPA has

complied with the statute.

State and Industry Petitioners insist that because

statutes should be interpreted to avoid absurd

results, EPA should have considered at least the

“absurd” consequences that would follow from an

endangerment finding for greenhouse gases. Specifi-

cally: having made an endangerment finding, EPA

will proceed to promulgate emission standards under

§ 202(a)(1). Issuing those standards triggers regula-

tion—under EPA’s PSD and Title V programs—of

stationary sources that emit greenhouse gases

at levels above longstanding statutory thresholds.

Because greenhouse gases are emitted in much

higher volumes than other air pollutants, hundreds

of thousands of small stationary sources would

exceed those thresholds. This would subject those

sources to PSD and Title V permitting requirements

despite what Petitioners claim was Congress’s clear

15a

intent that the requirements apply only to large

industrial sources. Petitioners assert that even EPA

believed such overbroad regulation to be an absurd

result, which it attempted to rectify by adopting the

Tailoring Rule to raise the statutory thresholds, see

infra Part VI.

However “absurd” Petitioners consider this conse-

quence, though, it is still irrelevant to the endanger-

ment inquiry. That EPA adjusted the statutory

thresholds to accommodate regulation of greenhouse

gases emitted by stationary sources may indicate

that the CAA is a regulatory scheme less-than-

perfectly tailored to dealing with greenhouse gases.

But the Supreme Court has already held that EPA

indeed wields the authority to regulate greenhouse

gases under the CAA. See Massachusetts v. EPA. The

plain language of § 202(aX1) of that Act does not

leave room for EPA to consider as part of the

endangerment inquiry the stationary-source regula-

tion triggered by an endangerment finding, even if

the degree of regulation triggered might at a later

stage be characterized as “absurd.”

State and Industry Petitioners next challenge

the adequacy of the scientific record underlying the

Endangerment Finding, objecting to both the type of

evidence upon which EPA relied and EPA’s decision

to make an Endangerment Finding in light of what

Industry Petitioners view as significant scientific

uncertainty. Neither objection has merit.

As an initial matter, State and Industry Petitioners

question EPA’s reliance on “major assessments”

16a

addressing greenhouse gases and climate change

issued by the Intergovernmental Panel on Climate

Change (IPCC), the U.S. Global Climate Research

Program (USGCRP), and the National Research

Council (NRC). Endangerment Finding, 74 Fed.

Reg. at 66,510-11. These peer-reviewed assessments

synthesized thousands of individual studies on vari-

ous aspects of greenhouse gases and climate change

aod drew “overarching conclusions” about the state of

the sciefice in this field. Jd. at 66,511. The assess-

ments provide data and information on, inter alia,

“the amount of greenhouse gases being emitted by

human activities”; their continued accumulation in

the atmosphere; the resulting observed changes to

Earth’s energy balance, temperature and climate

at global and regional levels, and other “climate-

sensitive sectors and systems of the human and

natural environment”; the extent to which these

changes “can be attributed to human-induced buildup

of atmospheric greenhouse gases”; “future projected

climate change”; and “projected risks and impacts to

human health, society and the environment.” Id. at

66,510-11.

State and Industry Petitioners assert that EPA

improperly “delegated” its judgment to the IPCC,

USGCRP, and NRC by relying on these assessments

of climate-change science. See U.S. Telecom Ass’n v.

FCC, 359 F.3d 554, 566 (D.C.Cir.2004). This argu-

ment is little more than a semantic trick. EPA did

not delegate, explicitly or otherwise, any decision-

making to any of those entities. EPA simply did here

what it and other decision-makers often must do to

make a science-based judgment: it sought out and

reviewed existing scientific evidence to determine

whether a particular finding was warranted. It

17a

makes no difference that much of the scientific evi-

dence in large part consisted of “syntheses” of

individual studies and research. Even individual

studies and research papers often synthesize past

work in an area and then build upon it. This is how

science works. EPA is not required to re-prove the

existence of the atom every time it approaches a

scientific question.

Moreover, it appears from the record that EPA

used the assessment reports not as substitutes for its

own judgment but as evidence upon which it relied to

make that judgment. EPA evaluated the processes

used to develop the various assessment reports,

reviewed their contents, and considered the depth of

the scientific consensus the reports represented.

Based on these evaluations, EPA determined the

assessments represented the best source material to

use in deciding whether greenhouse gas emissions

may be reasonably anticipated to endanger public

health or welfare. Endangerment Finding, 74 Fed.

Reg. at 66,510-11. It then reviewed those reports

along with comments relevant to the scientific

considerations involved to determine whether the

evidence warranted an endangerment finding for

greenhouse gases as it was required to do under the

Supreme Court’s mandate in Massachusetts v. EPA.

Industry Petitioners also assert that the scientific

evidence does not adequately support the Endanger-

ment Finding. As we have stated before in reviewing

the science-based decisions of agencies such as

EPA, “[a]lthough we perform a searching and careful

inquiry into the facts underlying the agency’s deci-

sions, we will presume the validity of agency action

18a

as long as a rational basis for it is presented.” Am.

Farm Bureau Fed’n v. EPA, 559 F.3d 512, 519

(D.C.Cir.2009) (internal quotation marks omitted). In

so doing, “we give an extreme degree of deference to

the agency when it is evaluating scientific data

within its technical expertise.” Jd. (internal quotation

marks omitted).

The body of scientific evidence marshaled by EPA

in support of the Endangerment Finding is substan-

tial. EPA’s scientific evidence of record included

support for the proposition that greenhouse gases

trap heat on earth that would otherwise dissipate

into space; that this “greenhouse effect” warms the

climate; that human activity is contributing to

increased atmospheric levels of greenhouse gases;

and that the climate system is warming.

Based on this scientific record, EPA made the

linchpin finding: in its judgment, the “root cause” of

the recently observed climate change is “very likely”

the observed increase in anthropogenic greenhouse

gas emissions. Endangerment Finding, 74 Fed. Reg.

at 66,518. EPA found support for this finding in three

lines of evidence. First, it drew upon our “basic

physical understanding” of the impacts of various

natural and manmade changes on the climate

system. For instance, EPA relied on evidence that the

past half-century of warming has occurred at a time

when natural forces such as solar and volcanic

activity likely would have produced cooling. Endan-

germent Finding, Response to Comments (RTC) Vol.

3, at 20. Other evidence supports EPA’s conclusion

that the observed warming pattern—warming of the

bottommost layer of the atmosphere and cooling

immediately above it—is consistent with greenhouse-

gas causation. Id.

19a

EPA further relied upon evidence of historical

estimates of past climate change, supporting EPA’s

conclusion that global temperatures over the last

half-century are unusual. Endangerment Finding, 74

Fed. Reg. at 66,518. Scientific studies upon which

EPA relied place high confidence in the assertion that

global mean surface temperatures over the last

few decades are higher than at any time in the last

four centuries. Technical Support Document for the

Endangerment Finding (TSD), at 31. These studies

also show, albeit with significant uncertainty, that

temperatures at many individual locations were

higher over the last twenty-five years than during

any period of comparable length since 900 A.D. Id.

For its third line of evidence that anthropogenic

emissions of greenhouse gases spurred the perceived

warming trend, EPA turned to computer-based

climate-model simulations. Scientists have used

global climate models built on basic principles of

physics and scientific knowledge about the climate to

try to simulate the recent climate change. These

models have only been able to replicate the observed

warming by including anthropogenic emissions of

greenhouse gases in the simulations. Endangerment

Finding, 74 Fed. Reg. at 66,523.

To recap, EPA had before it substantial record

evidence that anthropogenic emissions of greenhouse

gases “very likely” caused warming of the climate

over the last several decades. EPA further had

evidence of current and future effects of this warming

on public health and welfare. Relying again upon

substantial scientific evidence, EPA determined that

anthropogenically induced climate change threatens

beth public health and public welfare. It found that

€ treme weather events, changes in air quality,

20a

increases in food- and water-borne pathogens, and

increases in temperatures are likely to have adverse

health effects. Id. at 66,497-98. The record also sup-

ports EPA’s conclusion that climate change endan-

gers human welfare by creating risk to food produc-

tion and agriculture, forestry, energy, infrastructure,

ecosystems, and wildlife. Substantial evidence fur-

ther supported EPA’s conclusion that the warming

resulting from the greenhouse gas emissions could be

expected to create risks to water resources and in

general to coastal areas as a result of expected

increase in sea level. Jd. at 66,498. Finally, EPA

determined from substantial evidence that motor-

vehicle emissions of greenhouse gases contribute to

climate change and thus to the endangerment of

public health and welfare.

Industry Petitioners do not find fault with much of

the substantial record EPA amassed in support of the

Endangerment Finding. Rather, they contend that

the record evidences too much uncertainty to support

that judgment. But the existence of some uncertainty

does not, without more, warrant invalidation of an

endangerment finding. If a statute is “precautionary

in nature” and “designed to protect the public health,”

and the relevant evidence is “difficult to come by,

uncertain, or conflicting because it is on the frontiers

of scientific knowledge,” EPA need not provide

“rigorous step-by-step proof of cause and effect” to

support an endangerment finding. Ethyl Corp. v.

EPA, 541 F.2d 1, 28 (D.C.Cir.1976). As we have stated

before, “Awaiting certainty will often allow for only

reactive, not preventive, regulation.” Jd. at 25.

Congress did not restrict EPA to remedial regula-

tion when it enacted CAA §$ 202(a). That section

mandates that EPA promulgate new emission stand-

2la

ards if it determines that the air pollution at issue

“may reasonably be anticipated to endanger public

health or welfare.” 42 U.S.C. § 7521(a)(1). This

language requires a precautionary, forward-looking

scientific judgment about the risks of a particular air

pollutant, consistent with the CAA’s “precautionary

and preventive orientation.” Lead Indus. Ass’n, Inc. v.

EPA, 647 F.2d 1130, 1155 (D.C.Cir.1980). Requiring

that EPA find “certain” endangerment of public

health or welfare before regulating greenhouse gases

would effectively prevent EPA from doing the job

Congress gave it in § 202(a)—utilizing emission

standards to prevent reasonably anticipated endan-

germent from maturing into concrete harm. Cf. id.

(“[Rjequiring EPA to wait until it can conclusively

demonstrate that a particular effect is adverse to

health before it acts is inconsistent with both the

[(CAA]’s precautionary and preventive orientation and

the nature of the Administrator’s statutory responsi-

bilities. Congress provided that the Administrator is

to use his judgment in setting air quality standards

precisely to permit him to act in the face of uncer-

tainty.”).

In Massachusetts v. EPA the Supreme Court con-

firmed that EPA may make an endangerment finding

despite lingering scientific uncertainty. Indeed, the

Court held that the existence of “some residual

uncertainty” did not excuse EPA’s decision to decline

to regulate greenhouse gases. Massachusetts v. EPA,

549 U.S. at 534, 127 S.Ct. 1438. To avoid regulating

emissions of greenhouse gases, EPA would need to

show “scientific uncertainty . . . so profound that it

precludes EPA from making a reasoned judgment as

to whether greenhouse gases contribute to global

warming.” Id. Clearly, then, EPA may issue an

22a

endangerment finding even while t! scientific record

still contains at least “some residual uncertainty.”

Industry Petitioners have shown no more than that.

In the end, Petitioners are asking us to re-weigh

the scientific evidence before EPA and reach our own

conclusion. This is not our role. As with other reviews

of administrative proceedings, we do not determine

the convincing force of evidence, nor the conclusion

it should support, but only whether the conclusion

reached by EPA is supported by substantial evidence

when considered on the record as a whole. See, e.z.,

New York v. EPA, 413 F.3d 3, 30 (D.C.Cir.2005).

When EPA evaluates scientific evidence in its baili-

wick, we ask only that it take the scientific record

into account “in a rational manner.” Am. Petroleum

Inst. v. Costle, 665 F.2d 1176, 1187 (D.C.Cir.1981).

Industry Petitioners have not shown that EPA failed

to do so here.

State Petitioners, here led by Texas, contend that

the Endangerment Finding is arbitrary and capri-

cious because EPA did not “define,” “measure,” or

“quantify” either the atmospheric concentration at

which greenhouse gases endanger public health or

welfare, the rate or type of climate change that it

anticipates will endanger public health or welfare, or

the risks or impacts of climate change. According to

Texas, without defining these thresholds and distin-

guishing “safe” climate change from climate change

that endangers, EPA’s Endangerment Finding is just

a “subjective conviction.”

It is true that EPA did not provide a quantitative

threshold at which greenhouse gases or climate

change will endanger or cause certain impacts to

23a

public health or welfare. The text of CAA § 202(aX1)

does not require that EPA set a precise numerical

value as part of an endangerment finding. Quite the

opposite; the § 202(aX1) inquiry necessarily entails a

case-by-case, sliding-scale approach to endangerment

because “[djanger . . . is not set by a fixed probability

of harm, but rather is composed of reciprocal ele-

ments of risk and harm, or probability and severity.”

Ethyl, 541 F.2d at 18. EPA need not establish a

minimum threshold of risk or harm before deter-

mining whether an air pollutant endangers. It may

base an endangerment finding on “a lesser risk of

greater harm... or a greater risk of lesser harm” or

any combination in between. Id.

Ethyl is instructive. There, EPA made an endan-

germent finding for airborne lead. During its endan-

germent inquiry, EPA initially tried to do what Texas

asks of it here: find a specific concentration of the air

pollutant below which it would be considered “safe”

and above which it would endanger public health. Id.

at 56. However, EPA abandoned that approach

because it failed to account for “the wide variability of

dietary lead intake” and lacked predictive value. EPA

substituted a “more qualitative” approach, which

relied on “predictions based on uncertain data” along

with clinical studies. Jd. at 56-57. This court upheld

the endangerment finding that used that qualitative

approach despite the lack of a specific endangerment

“threshold.”

In its essence, Texas’s call for quantification of the

endangerment is no more than a specialized version

of Industry Petitioners’ claim that the scientific

record contains too much uncertainty to find endan-

germent. EPA relied on a substantial record of

empirical data and scientific evidence, making many

24a

specific and often quantitative findings regarding the

impacts of greenhouse gases on climate change and

the effects of climate change on public health and

welfare. Its failure to distill this ocean of evidence

into a specific number at which greenhouse gases

cause “dangerous” climate change is a function of the

precautionary thrust of the CAA and the multivariate

and sometimes uncertain nature of climate science,

not a sign of arbitrary or capricious decision-making.

EPA defined both the “air pollution” and the “air

pollutant” that are the subject of the Endangerment

Finding as an aggregate of six greenhouse gases,

which EPA called “well mixed greenhouse gases”:

carbon dioxide (CO,), methane (CH,), nitrous oxide

(N,O), bhydrofluorocarbons (HFCs), perfluorocarbons

(PFCs), and sulfur hexafluoride (SF,). Industry Peti-

tioners argue that EPA’s decision to include PFCs

and SF, in this group of greenhouse gases was arbi-

trary and capricious primarily because motor vehicles

generally do not emit these two gases.

No petitioner for review of the Endangerment

Finding has established standing to make this argu-

ment. Industry Petitioners cdncede that EPA’s deci-

sion to regulate PFCs and SF, along with the other

four greenhouse gases does not injure any motor-

vehicle-related petitioner. Nor has any non-motor-

vehicle-related petitioner shown an injury-in-fact

resulting from EPA’s inclusion of these two gases

in the six-gas amalgam of “well-mixed greenhouse

gases.” At oral argument, Industry Petitioners

asserted for the first time that certain utility compa-

nies—members of associations that petitioned for

review of the Endangerment Finding—own utility

25a

transformers that emit SF,. However, they never

demonstrated or even definitively asserted that any

of these companies would not be subject to regulation

or permitting requirements but for EPA’s decision to

include SF, as part of the “well-mixed greenhouse

gases” that are the subject of the Endangerment

Finding. See Sierra Club v. EPA, 292 F.3d 895, 898-

900 (D.C.Cir.2002) (requiring that a petitioner seek-

ing review of agency action demonstrate standing by

affidavit or other evidence if standing is not “self-

evident” from the administrative record). Absent a

petitioner with standing to challenge EPA’s inclusion

of PFCs and SF, in the “air pollution” at issue, this

court lacks jurisdiction to address the merits of

Industry Petitioners’ contention.

EPA did not submit the Endangerment Finding for

review by its Science Advisory Board (SAB). Industry

Petitioners claim that EPA’s failure to do so violates

its mandate to “make available” to the SAB “any

proposed criteria document, standard, limitation, or

regulation under the Clean Air Act” at the time it

provides the same “to any other Federal agency for

formal review and comment.” 42 U.S.C. § 4365(c\(1);

see Am. Petroleum Inst., 665 F.2d at 1188.

To begin with, it is not clear that EPA provided the

Endangerment Finding “to any other Federal agency

for formal review and comment,” which triggers this

duty to submit a regulation to the SAB. EPA only

submitted a draft of the Endangerment Finding to

the Office of Information and Regulatory Affairs pur-

suant to Executive Order 12,866. EPA contends that

this was merely an informal review process, not

“formal review and comment”—at least when com-

26a

pared with a statutory review-and-comment require-

ment in which other agencies are given the

opportunity to provide written comments about the

impacts of a proposed regulation on the reviewing

agency's universe of responsibility. See, e.g., 49 U.S.C.

§ 32902(j). Industry Petitioners failed to respond to

this contention.

In any event, even if EPA violated its mandate by

failing to submit the Endangerment Finding to the

SAB, Industry Petitioners have not shown that

this error was “of such central relevance to the rule

that there is a substantial likelihood that the rule

would have been significantly changed if such errors

had not been made.” 42 U.S.C. § 7607(dX8); see Am.

Petroleum Inst., 665 F.2d at 1188-89 (applying this

standard to EPA’s failure to submit an ozone stand-

ard to the SAB).

Lastly, State Petitioners maintain that EPA erred

by denying all ten petitions for reconsideration of the

Endangerment Finding. Those petitions asserted that

internal e-mails and documents released from the

University of East Anglia’s Climate Research Unit

(CRU)—a contributor to one of the global tempera-

ture records and to the IPCC’s assessment report—

undermined the scientific evidence supporting the

Endangerment Finding by calling into question

whether the IPCC scientists adhered to “best science

practices.” EPA’s Denial of the Petitions To Recon-

sider the Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section 202(a)

of the Clean Air Act (“Reconsideration Denial”), 75

Fed. Reg. 49,556, 49,556-57 (Aug. 13, 2010). The peti-

tions pointed to factual mistakes in the IPCC’s

27a

assessment report resulting from the use of non-peer-

reviewed studies and several scientific studies post-

dating the Endangerment Finding as evidence that

the Endangerment Finding was flawed. Id.

On August 13, 2010, EPA issued a denial of the

petitions for reconsideration accompanied by a 360-

page response to petitions (RTP). Id. at 49,556. It

determined that the petitions did not provide sub-

stantial support for the argument that the Endan-

germent Finding should be revised. According to

EPA, the petitioners’ claims based on the CRU

documents were exaggerated, contradicted by other

evidence, and not a material or reliable basis for

questioning the credibility of the body of science at

issue; two of the factual inaccuracies alleged in the

petitions were in fact mistakes, but both were “tan-

gential and minor” and did not change the key IPCC

conclusions; and the new scientific studies raised by

some petitions were either already considered by

EPA, misinterpreted or misrepresented by petition-

ers, or put forth without acknowledging other new

studies. Id. at 49,557-58.

EPA is required to convene a proceeding for recon-

sideration of a rule if a party raising an objection to

the rule

can demonstrate to the Administrator that it was

impracticable to raise such objection within such

time or if the grounds for such objection arose

after the period for public comment (but within

the time specified for judicial review) and if such

objection is of central relevance to the outcome of

the rule.

28a

42 U.S.C. § 7607(dX7\XB). For the purpose of deter-

mining whether to commence reconsideration of a

rule, EPA considers an objection to be of “central

relevance to the outcome” of that rule “if it provides

substantial support for the argument that the regula-

tion should be revised.” Reconsideration Denial, 75

Fed. Reg. at 49,561.

State Petitioners have not provided substantial

support for their argument that the Endangerment

Finding should be revised. State Petitioners point out

that some studies the IPCC referenced in its assess-

ment were not peer-reviewed, but they ignore the fact

that (1) the IPCC assessment relied on around 18,000

studies that were peer-reviewed, and (2) the IPCC’s

report development procedures expressly permitted

the inclusion in the assessment of some non-peer-

reviewed studies (“gray” literature).

Moreover, as EPA determined, the limited inaccu-

rate information developed from the gray literature

does not appear sufficient to undermine the substan-

tial overall evidentiary support for the Endanger-

ment Finding. State Petitioners have not, as they

assert, uncovered a “pattern” of flawed science. Only

two of the errors they point out seem to be errors at

all, and EPA relied on neither in making the Endan-

germent Finding. First, as State Petitioners assert,

the IPCC misstated the percentage of the Nether-

lands that is below sea level, a statistic that was used

for background information. However, the [IPCC

corrected the error, and EPA concluded that the error

was “minor and had no impact,” and the Endanger-

ment Finding did not refer to the statistic in any way.

Id. at 49,576-77. Second, the IPCC acknowledged

misstating the rate at which Himalayan glaciers are

29a

receding. EPA also did not rely on that projection in

the Endangerment Finding. Id. at 49,577.

State Petitioners also contend that a new study

contradicts EPA’s reliance on a projection of more

violent storms in the future as a result of climate

change, but the study they cite only concerns past

trends, not projected future storms. The record shows

that EPA considered the new studies on storm trends

and concluded that the studies were consistent with

the Endangerment Finding. In sum, State Petitioners

have failed to show that these isolated “errors” pro-

vide substantial support for their argument to

overturn the Endangerment Finding.

State Petitioners’ further argument that EPA erred

in denying reconsideration fails as well. These Peti-

tioners claim EPA erred by failing to provide notice

and comment before denying the petitions for recon-

sideration because EPA’s inclusion of a 360-page RTP

amounted to a revision of the Endangerment Finding,

and revision of a rule requires notice and comment.

The RTP, however, appears to be exactly what EPA

called it—a response to the petitions for reconsidera-

tion, not a revision of the Endangerment Finding

itself. EPA certainly may deny petitions for reconsid-

eration of a rule and provide an explanation for that

denial, including by providing support for that deci-

sion, without triggering a new round of notice and

comment for the rule.

Il.

State and Industry Petitioners contend that in

promulgating the Tailpipe Rule, EPA relied on an

improper interpretation of CAA § 202(aX1), and was

30a

arbitrary and capricious in failing to justify and con-

sider the cost impacts of its conclusion that the Rule

triggers stationary-source regulation under the PSD

and Title V provisions. They do not challenge the

substantive standards of the Rule and focus princi-

pally on EPA’s failure to consider the cost of station-

ary-source permitting requirements triggered by the

Rule. Positing an absurd-consequences scenario, Peti-

tioners maintain that if EPA had considered these

costs it “would have been forced” to exclude carbon

dioxide from the scope of the emission standards, to

decline to issue greenhouse gas emission standards

at all, or “to interpret the statute so as not to auto

matically trigger stationary source regulation.”

Industry Tailpipe Br. 17; see also Industry Tailpipe

Reply Br. 8-9. Both the plain text of Section 202(a)

and precedent refute Petitioners’ contentions.

Section 202(a\1) provides:

The Administrator shall by regulation

prescribe . . . standards applicable to the emission

of any air pollutant from any class or classes of

new motor vehicles or new motor vehicle engines,

which in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to

endanger public health or welfare.

42 U.S.C. § 7521(aX1). By employing the verb “shall,”

Congress vested a non-discretionary duty in EPA.

See Sierra Club v. Jackson, 648 F.3d 848, 856

(D.C.Cir.2011). The plain text of Section 202(aX1)

thus refutes Industry Petitioners’ contention that

EPA had discretion to defer issuance of motor-vehicle

emission standards on the basis of stationary-source

3la

costs. ~>ither the adjacent text nor the statutory

contex. -herwise condition this clear “language of

command,” id. (citation omitted). Having made the

Endangerment Finding pursuant to CAA § 202(a),

42 U.S.C. § 7521(a), EPA lacked discretion to defer

promulgation of the Tailpipe Rule on the basis of its

trigger of stationary-source permitting requirements

under the PSD program and Title V.

The Supreme Court’s decision in Massachusetts v.

EPA compels this interpretation of Section 202(a)(1).

“If EPA makes a finding of endangerment, the Clean

Air Act requires the [algency to regulate emissions of

the deleterious pollutant from new motor vehicles.”

549 U.S. at 533, 127 S.Ct. 1438. “Under the clear

terms of the Clean Air Act, EPA can avoid taking fur-

ther action only if it determines that greenhouse

gases do not contribute to climate change or if it pro-

vides some reasonable explanation as to why it can-

not or will not exercise its discretion to determine

whether they do.” Jd. (emphasis added). In the

Endangerment Finding, EPA determined that motor-

vehicle emissions contribute to greenhouse gas emis-

sions that, in turn, endanger the public health and

welfare; the agency therefore was in no position

to “avoid taking further action,” id., by deferring

promulgation of the Tailpipe Rule. Given the non-

discretionary duty in Section 202(aX1) and the lim-

ited flexibility available under Section 202(a}2),

which this court has held relates only to the motor-

vehicle industry, see infra Part I1I1.C, EPA had no

statutory basis on which it could “ground [any]

reasons for” further inaction, Massachusetts v. EPA,

549 U.S. at 535, 127 S.Ct. 1438.

The plain text of Section 202(aX1) also negates

Industry Petitioners’ contention that EA had dis-

32a

cretion to defer the Tailpipe Rule on the basis of

NHTSA’s authority to regulate fuel economy. The

Supreme Court dismissed a near-identical argument

in Massachusetts v. EPA, rejecting the suggestion

that EPA could decline to regulate carbon-dioxide

emissions because the Department of Transportation

(DUT) had independent authority to set fuel-

efficiency standards. Id. at 531-32, 127 S.Ct. 1438.

“[Tihat DOT sets mileage standards in no way

licenses EPA to shirk its environmental responsibili-

ties,” because EPA’s duty to promulgate emission

standards derives from “a statutory obligation wholly

independent of DOT’s mandate to promote energy

efficiency.” Id. at 532, 127 S.Ct. 1438. Just as EPA

lacks authority to refuse to regulate on the grounds of

NHTSA’s regulatory authority, EPA cannot defer

regulation on that basis. A comparison of the relevant

statutes bolsters this conclusion. Compare 49 U.S.C.

§ 32902(f) (“When deciding maximum feasible aver-

age fuel economy ... , the Secretary of Trans-

portation shall consider . . . the effect of other motor

vehicle standards of the Government on fuel

economy... .”), with 42 U.S.C. § 7521(a) (including no

such direction). Nor, applying the same reasoning,

was EPA required to treat NHTSA’s proposed regula-

tions as establishing the baseline for the Tailpipe

Rule. Furthermore, the Tailpipe Rule provides

benefits above and beyond those resulting from

NHTSA’s fuel-economy standards. See, e.g., Tailpipe

Rule, 75 Fed. Reg. at 25,490 (Table III.F.1-2), 25,636

(Table IV.G.1-4). Petitioners’ related contentions

regarding the PSD permitting triggers are addressed

in Part V.

Turning to the APA, Industry Petitioners contend,

relying on Small Refiner Lead Phase-Down Task

33a

Force v. EPA, 705 F.2d 506, 525 (D.C.Cir.1983), and

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.1976), that

EPA failed both to justify the Tailpipe Rule in terms

of the risk identified in the Endangerment Finding

and to show that the proposed standards “would

meaningfully mitigate the alleged endangerment,”

Industry Tailpipe Br. 35. Instead, they maintain that

EPA “separated these two integral steps,” id. at 11,

and “concluded that it had no obligation to show .. .

‘the resulting emissions control strategy or strategies

will have some significant degree of harm reduction

or effectiveness in addressing the endangerment,” id.

at 11-12 (quoting Endangerment Finding, 74 Fed.

Reg. at 66,508). These contentions fail.

Petitioners’ reliance on Small Refiner, 705 F.2d at

525, is misplaced; the court there laid out guidelines

for assessing EPA’s discretion to set numerical

standards and Petitioners do not challenge the

substance of the emission standards. In Ethyl, 541

F.2d at 7, the court assessed the scope of EPA’s

authority, ‘under CAA § 211(cX1), 42 U.S.C. § 1857f-

6c{cK1) (1970) (currently codified as amended at 42

U.S.C. § 7545(cX1)), to regulate lead particulate in

motor-vehicle emissions. The court rejected the

argument that the regulations had to “be premised

upon factual proof of actual harm,” Ethyl, 541 F.2d

at 12, and instead deferred to EPA’s reasonable

interpretation that regulations could be based on a

“significant risk of harm,” id. at 13. Nothing in Ethyl

implied that EPA’s authority to regulate was con-

ditioned on evidence of a particular level of mitiga-

tion; only a showing of significant contribution was

required. EPA made such a determination in the

Endangerment Finding, concluding that vehicle

emissions are a significant contributor to domestic

greenhouse gas emissions. See, e.g., Endangerment

34a

Finding, 74 Fed. Reg. at 66,499. Further, in the

preamble to the Tailpipe Rule itself, EPA found that

the emission standards would result in meaningful

mitigation of greenhouse gas emissions. For example,

EPA estimated that the Rule would result in a

reduction of about 960 million metric tons of CO,e

emissions over the lifetime of the model year 2012-

2016 vehicles affected by the new standards. See

Tailpipe Rule, 75 Fed. Reg. at 25,488-90. Other pre-

cedent is likewise unhelpful to Petitioners: in

Chemical Manufacturers Association v. EPA, 217

F.3d 861, 866 (D.C.Cir.2000), “nothing in the record”

indicated that the challenged regulatory program

would “directly or indirectly, further the Clean Air

Act’s environmental goals,” whereas here the record

is fulsome, see supra Part II.

Petitioners also invoke Section 202(aX2) as support

for their contention that EPA must consider

stationary-source costs in the Tailpipe Rule. Section

202(aX2) provides:

Any regulation prescribed under paragraph (1) of

this subsection . . . shall take effect after such

period as the Administrator finds necessary to

permit the development and application of the

requisite technology, giving appropriate consid-

eration to the cost of compliance within such

period.

42 U.S.C. § 7521(aX2). State Petitioners maintain

the reference to compliance costs encompasses

those experienced by stationary sources under the

PSD program, while Industry Petitioners maintain

stationary-source costs are a relevant factor in EPA’s

Section 202(aX1) rulemaking. This court, however,

35a

has held that the Section 202(a\X2) reference to com-

pliance costs encompasses only the cost to the motor-

vehicle industry to come into compliance with the

new emission standards, and does not mandate

consideration of costs to other entities not directly

subject to the proposed standards. See Motor &

Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095, 1118

(D.C.Cir.1979).

Petitioners’ remaining challenges to the Tailpipe

Rule fail as well. In Part I, the court rejects the con-

tention that the Tailpipe Rule fails due to flaws in

the underlying Endangerment Finding. The record

also refutes Industry Petitioners’ suggestion that

EPA “employed a shell game to avoid,” Industry Tail-

pipe Reply Br. 9 (capitalization removed), responding

to comments regarding stationary-source costs.

Industry Tailpipe Br. 19-20; see also Industry Tail-

pipe Reply Br. 14-15. EPA adequately responded to

“significant comments,” 42 U.S.C. § 7607(d\6XB).

See, e.g., Tailpipe Rule, 75 Fed. Reg. at 25,401-02;

Tailpipe Rule, Response to Comments at 7-65 to 7-69.

And, assuming other statutory mandates provide a

basis for judicial review, see Industry Tailpipe Br. 21-

22 (listing mandates); see, e.g., Small Refiner, 705

F.2d at 537-39, the record shows EPA’s compliance,

see Tailpipe Rule, 75 Fed. Reg. at 25,539-42, and that

EPA was not arbitrary and capricious by not consid-

ering stationary-source costs in its analyses. See, e.g.,

Michigan v. EPA, 213 F.3d 663, 689 (D.C.Cir.2000);

Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327,

341-42 (D.C.Cir.1985). EPA’s economic impact assess-

ment conducted pursuant to CAA §$ 317, 42 U.S.C.

§ 7617, does not provide grounds for granting the

petitions because Petitioners’ contentions that EPA,

36a

“lijn defiance of these requirements, . . . refused to

estimate or even consider the costs of the [Tailpipe

Rule) for stationary sources,” Industry Tailpipe Br.

22, are no more than another attempt to avoid the

plain text of Section 202(a). See also 42 U.S.C.

§ 7617(e).

IV.

We turn next to the stationary source regulations.

As noted supra in Part I, EPA’s interpretation of the

CAA requires PSD and Title V permits for stationary

sources whose potential emissions exceed statutory

thresholds for any regulated pollutant—including

greenhouse gases. Industry Petitioners now challenge

EPA’s longstanding interpretation of the scope of the

permitting requirements for construction and mod-

ification of major emitting facilities under CAA

Sections 165(a) and 169(1), 42 U.S.C. §$§ 7475(a) &

747X%1) (“the PSD permitting triggers”). EPA main-

tains that this challenge is untimely because its

interpretation of the PSD permitting triggers was set

forth in its 1978, 1980, and 2002 Rules.

In 1978, EPA defined “major stationary source” as

a source that emits major amounts of “any air pollu-

tant regulated under the [CAA].” Part 51—Require-

ments for Preparation, Adoption, and Submittal of

Implementation Plans; Prevention of Significant Air

Quality Deterioration (“1978 Implementation Plan

Requirements”), 43 Fed. Reg. 26,380, 26,382 (June

19, 1978). Industry petitioners’ challenge to the 1978

Rule in Alabama Power Co. v. Costle, 636 F.2d 323

(D.C.Cir.1980) reflected their understanding that

EPA would apply the PSD permitting program to

both pollutants regulated pursuant to National

Ambient Air Quality Standards (NAAQS) and other

regulated pollutants. See Br. for Industry Pet’rs on

37a

Regulation of Pollutants other than Sulfur Dioxide

and Particulates, No. 78-1006 (and consolidated

cases) (Dec. 19, 1978) at 10, 12. In the 1980 Rule,

EPA highlighted that to be subject to PSD review, a

“source need only emit any pollutant in major amounts

(i.e., the amounts specified in [CAA § 169(1)]) and

be located in an area designated attainment or

unclassifiable for that or any other pollutant.” 1980

Implementation Plan Requirements, 45 Fed. Reg. at

52,711 (emphasis in original). EPA explained that

“any pollutant” meant “both criteria pollutants, for

which national ambient air quality standards have

been promulgated, and non-criteria pollutants sub-

ject to regulation under the Act.” Jd. The same

explanation of EPA’s interpretation appeared in the

2002 Rule. Prevention of Significant Deterioration

and Nonattainment New Source Review, 67 Fed. Reg.

80,186, 80,239-40, 80,264 (Dec. 31, 2002).

CAA Section 307(bX1) provides that a petition for

review of any promulgated nationally applicable reg-

ulations:

“shall be filed within sixty days from the date

notice of such promulgation . . . appears in the

Federal Register, except that if such petition is

based solely on grounds arising after such sixti-

eth day, then any petition for review . . . shall be

filed within sixty days after such grounds arise.”

42 U.S.C. § 7607(bX1). The exception encompasses

the occurrence of an event that ripens a claim. See

Chamber of Commerce v. EPA, 642 F.3d 192, 208 n.

14 (D.C.Cir.2011); Am. Rd. & Transp. Builders Ass’n

v. EPA, 588 F.3d. 1109, 1113 (D.C.Cir.2009). EPA

acknowledges this precedent, but maintains that the

“new grounds” exception is narrow and inapplicable

because Industry Petitioners’ challenge to EPA’s

38a

interpretation of the PSD permitting triggers is

based on legal arguments that were available during

the normal judicial review periods for the 1978, 1980,

and 2002 Rules, and the “new ground” on which they

now rely is a factual development, namely the regula-

tion of greenhouse gases by the Tailpipe Rule. This is

correct so far as it goes, but fails to demonstrate that

Industry Petitioners’ challenge is untimely.

Industry Petitioners point out that two petitioners—

the National Association of Home Builders (NAHB)

and National Oilseed Processors Association (NOPA)—

have newly ripened claims as a result of the Tailpipe

Rule, which had the effect of expanding the PSD

program to never-regulated sources:

e NAHB’s members construct single family

homes, apartment buildings, and commercial

buildings. According to the Vice President of

Legal Affairs, prior to the Tailpipe Rule, no

member of NAHB was a major source of any

regulated pollutant, and thus no member was

ever required to obtain a PSD permit. Decl. of

Thomas J. Ward, Vice President of Legal

Affairs for NAHB, { 6 (May 10, 2011). Since

the Tailpipe Rule rendered greenhouse gases

a regulated pollutant, it is now certain that

NAHB members that engage in construction

projects that emit greenhouse gases in major

amounts will have to obtain PSD permits

sometime in the future. Jd. at {¥ 7, 8. Indeed,

EPA estimated that 6,397 multifamily build-

ings and 615 single family homes would trig-

ger PSD review annually absent the Tailoring

Rule. See Prevention of Significant Deteriora-

tion and Title V Greenhouse Gas Tailoring

Rule; Proposed Rule (“Proposed Tailoring

39a

Rule”), 74 Fed. Reg. 55,292, 55,338 (Oct. 27,

2009).

e NOPA’s members are large companies that

monthly produce millions of tons of vegetable

meals and over a billion pounds of oils from

oilseeds, such as soybeans. See, e.g., NOPA,

January 2012 Statistical Report (Feb. 14,

2012) available at www.nopa.org; NOPA,

February 2012 Statistical Report (Mar. 14,

2012), available at www.nopa.org. According

to the Executive Vice President of Regulatory

Affairs, NOPA members operate facilities

that are major sources of criteria pollutants

and, for this reason, are subject to PSD

review. Decl. of David C. Ailor, Executive Vice

President of Regulatory Affairs of NOPA, { 8

(May 10, 2011). Prior to promulgation of the

Tailpipe Rule, no member’s facility had trig-

gered PSD review by virtue of emissions of a

non-criteria pollutant. Jd. Now that green-

house gases are a regulated non-criteria

pollutant, many NOPA members will have to

obtain PSD permits as result of their facili-

ties’ emissions of a non-criteria pollutant. Id.

at {7 9, 10. For some NOPA members this

time is not far off because renovations to their

facilities will result in greenhouse gas emis-

sions above the significance thresholds set by

the Tailoring Rule, 75 Fed. Reg. at 31,567. Id.

at 7 9.

Industry Petitioners thus maintain that because

NAHB and NOPA filed their petitions on July 6,

2010, within 60 days of the promulgation of the Tail-

pipe Rule in the Federal Register on May 7, 2010,

their challenges are timely.

40a

“Ripeness, while often spoken of as a justiciability

doctrine distinct from standing, in fact shares the

constitutional requirement of standing that an injury

in fact be certainly impending.” Nat? Treasury

Emp. Union v. United States, 101 F.3d 1423, 1427

(D.C.Cir.1996). During an initial review period,

although purely legal claims may be justiciable and,

thus, prudentially ripe, a party without an immediate

or threatened injury lacks a constitutionally ripe

claim. See Baltimore Gas & Elec. Co. v. ICC, 672 F.2d

146, 149 (D.C.Cir.1982). EPA’s position would con-

flate the constitutional and prudential considera-

tions. Constitutional ripeness exists where a chal-

lenge “involve[s], at least in part, the existence of a

live ‘Case or Controversy.” Duke Power Co. v. Caro-

lina Envtl. Study Group, 438 U.S. 59, 81, 98 S.Ct.

2620, 57 L.Ed.2d 595 (1978). Prudential considera-

tions embodied in the ripeness doctrine relate to “the

fitness of the issues for judicial decision and the

hardship to the parties of withholding court consid-

eration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149,

87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see Duke Power,

438 U.S. at 81, 98 S.Ct. 2620. Standing to challenge

agency action exists where a petitioner can demon-

strate an “injury in fact” that is fairly traceable to the

challenged action and is likely to be redressed by a

favorable judicial decision. Reytblatt v. NRC, 105

F.3d 715, 721 (D.C.Cir.1997) (citing Lujan v. Defend-

ers of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130,

119 L.Ed.2d 351 (1992)).

Had NAHB and NOPA challenged EPA’s inter-

pretation of the PSD permitting triggers in 1978,

1980, or 2002, as EPA suggests, the court would have

lacked jurisdiction under Article III of the Constitu-

tion because their alleged injuries were only specula-

tive. See, e.g., Occidental Permian Lid. v. FERC, 673

4la

F.3d 1024, 1026 (D.C.Cir.2012); Baltimore Gas &

Elec. Co., 672 F.2d at 149. At that time, NAHB and

NOPA could have shown only the possibility that

their members would be injured if EPA were some-

day to determine that greenhouse gases were a pollu-

tant that endangers human health and welfare and

to adopt a rule regulating the greenhouse gas emis-

sions of stationary sources. EPA does not challenge

the assertions in the NAHB and NOPA declarations,

which establish no such rule was promulgated prior

to the Tailpipe Rule.

The NAHB and NOPA challenges ceased to be

speculative when EPA promulgated the Tailpipe Rule

regulating greenhouse gases and their challenges

ripened because of the “substantial probability” of

injury to them. See Baltimore Gas & Elec. Co., 672

F.2d at 149. Although, as EPA notes, other Industry

Petitioners’ challenges to EPA’s interpretation of the

PSD permitting triggers ripened decades earlier, this

court has assured petitioners with unripe claims that

“they will not be foreclosed from judicial review when

the appropriate time comes,” Grand Canyon Air Tour

Coalition v. FAA, 154 F.3d 455, 473 (D.C.Cir.1998),

and that they “need not fear preclusion by reason of

the 60-day stipulation [barring judicial review),”

Baltimore Gas & Elec. Co., 672 F.2d at 149-50. EPA

expresses concern that allowing NAHB and NOPA to

litigate their newly ripened claims will have far-

reaching implications for finality of agency actions,

but “the ripeness doctrine reflects a judgment that

the disadvantages of a premature review that may

prove too abstract or unnecessary ordinarily out-

weigh the additional costs of—even repetitive—. . .

litigation.” Ohio Forestry Ass’n, Inc. v. Sierra Club,

523 U.S. 726, 735, 118 S.Ct. 1665, 140 L.Ed.2d 921

(1998). Some limitations inhere in doctrines such as

42a

stare decisis or the law-of-the-circuit doctrine, see La-

Shawn A. v. Barry, 87 F.3d 1389, 1396 (D.C.Cir.1996)

(en banc).

Because petitioners NAHB and NOPA’s challenges

to EPA’s PSD permitting triggers are newly ripened

upon promulgation of the Tailpipe Rule and they filed

petitions for review within sixty days thereof, their

challenge to EPA’s interpretation of the PSD permit-

ting triggers is timely.

\ A

Having established that Industry Petitioners’ chal-

lenges to the PSD permitting triggers are both timely

and ripe, we turn to the merits of their claims.

CAA Title I, Part C—entitled “Prevention of Sig-

nificant Deterioration of Air Quality” (PSD)—largely

focuses on the maintenance of national ambient air

quality standards (NAAQS). Under the PSD pro-

gram, EPA designates specific pollutants as “NAAQS

pollutants” and sets national ambient air quality

standards for those pollutants—requiring, for exam-

ple, that the concentration of a given NAAQS pollu-

tant may not exceed more than a certain number of

parts per billion in the ambient air. See generally

42 U.S.C. § 7407. Thus far, EPA has designated six

NAAQS pollutants: carbon monoxide, lead, nitrogen

dioxide, ozone, particle pollution, and sulfur dioxide.

None of these NAAQS pollutants is one of the six

well-mixed greenhouse gases defined as an “air pollu-

tant” in the Endangerment Finding. See Environ-

mental Protection Agency, National Ambient Air

Quality Standards, available at http://(www.epa.gov/

43a

air/criteria.html (last visited May 3, 2012); Endanger-

ment Finding, 74 Fed. Reg. 66,536-37.

Acting upon information submitted by states, EPA

then determines whether each region of the country

is in “attainment” or “nonattainment” with the prom-

ulgated air quality standard for each NAAQS pollu-

tant, or, alternatively, whether a region is “unclassi-

fiable” for that pollutant. 42 U.S.C. § 7407(dx1)A).

An area in attainment for a NAAQS pollutant is “any

area ... that meets the . . . ambient air quality

standard for the pollutant.” Id. § 7407(dK1\AXii). By

contrast, an area in nonattainment for a NAAQS

pollutant is “any area that does not meet (or that con-

tributes to ambient air quality in a nearby area that

does not meet) the national . . . ambient air quality

standard for the pollu

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