# Record and brief — Am. Chemistry Council v. Envtl. Prot. Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0896%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2013 - **Citation:** 571 U.S. 951 ## Text 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 V 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 Jun 7 2013 Jul 12013 Jul 8 2013 Jul 22 2013 Jul 22 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 1 2013 Nov 1 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) ss 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 iv 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- v 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- vi 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....... EE ccncvvincenicsinneunssmennmeciniminnenies 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, ix 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 x 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 xl 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 ii 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). 2 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. 3 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 4 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- 4) 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. 6 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 7 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 8 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). 9 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 10 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 11 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- 12 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 13 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). 14 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 15 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 16 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 17 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. 18 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. 19 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). 20 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 21 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). 22 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.”). 23 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). 24 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 25 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. 26 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.”). 27 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). 28 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- 29 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. 30 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 31 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. 32 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, @) la 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, Vv ENVIRONMENTAL PROTECTION AGENCY, Respondent, STATE OF MICHIGAN, et ail., Intervenors. 2a 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, Vv 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 3a 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 4a 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. I. 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’ 5a 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. 6a 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 7a 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 8a 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.) 9a 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. A. 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.” B. 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. 1. 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. 2. 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 st [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0896%3A0. Public record. Not legal advice.