Record and brief — Energy-Intensive Mfrs. Working Grp. On Greenhouse Gas Regulation v. Envtl. Prot. Agency

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f Ws SUPREME COURT

‘igre? OF THE UNITED STATES

No. 12-1254

Vide 12-1146, 12-

1248, 12-1268,

12-1269, 12-1272

Title: Energy-intensive Manufacturers Working Group on Greenhouse Gas

Regulation, et al., Petitioners

Environmental Protection Agency, et al.

Docketed: April 19, 2013

Linked with 12A879

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

Case Nos.: (10-1073, et al.)

Decision Date: June 26, 2012

Rehearing

Denied: December 20, 2012

Questions

Presented

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

Mar 8 2013 Application (12A879) to extend the time to file a petition for a wnt of certioran

from March 20, 2013 to April 19, 2013, submitted to The Chief Justice.

Mar 11 2013 Application (12A879) granted by The Chief Justice extending the time to file

until April 19, 2013.

Apr 17 2013 Petition for a writ of certioran filed. (Response due May 20, 2013)

May 8 2013 Consent to the filing of amicus curiae 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 cuirae 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 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 § 2013 Order further extending time to file response to petition to and including July

22, 2013, for all respondents.

Jun 7 2013 Application (12A1181) to file consolidated brief in opposition in excess of word

limits, submitted to The Chief Justice.

Jun 7 2013 Application (12A1181) to file consolidated brief in opposition in excess of word

Jul 12013

Jul 8 2013

Jul 22 2013

Aug 6 2013

Aug 7 2013

Oct 7 2013

Oct 15 2013

Oct 22 2013

Oct 24 2013

Oct 29 2013

Nov 1 2013

Nov 7 2013

Nov 8 2013

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

not exceed 12,000 words.

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

limits, submitted to The Chief Justice.

Application (13A35) to file consolidated bnef 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.

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

Reply of petitioners Energy-intensive Manufacturers Working Group on

Greenhouse Gas Regulation, 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, |nc., 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 bref of the Solicitor

General shall not exceed 15,000 words. The briefs 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’ bnefs on the ments, and briefs of

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

2013. VIDED

The time to file respondents’ briefs 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 bnefs, 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 Southeastern Legal Foundation, Inc., et

al. VIDED.

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,

Inc., 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 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, Center

for Biological diversity, et al. 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, 2013

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

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

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

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

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

Dec 12 2013 Bnef 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.

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 Brief amici curiae 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 Bnef 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 Legal Foundation filed. VIDED.

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

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

Dec 16 2013 Bnef amici curiae of State and Local Chambers of Commerce, and Other

Business Associations filed. VIDED.

Dec 16 2013 Brief amici curiae of Administrative Law Professors, et al. filed VIDED

(Distnbuted)

Dec 16 2013 Bnef amicus curiae of American Road & Transportation Builders Association in

support of neither party 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 Brief 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 Brief amicus curiae of Calpine Corporation filed. VIDED. (Distributed)

Jan 28 2014 Brief amicus curiae of American Thoracic Society filed. VIDED. (Distributed)

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

(Distributed)

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. Vermilli, Jr., Solicitor General, Department of Justice,

Washington, D. C.

PETITION

FOR

WRIT OF

CERTIORARI

13.1254

3n The

Supreme Court of the United States

THE ENERGY-INTENSIVE MANUFACTURERS

WORKING GROUP ON GREENHOUSE

GAS REGULATION, ET AL.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia

PETITION FOR A WRIT OF CERTIORARI

RONALD TENPAS JOHN J. MCMACKIN, JR.

MORGAN LEWIS & BOCKIUS WILLIAMS & JENSEN, PLLC

1111 Pennsylvania Ave., NW 701 8th Street, NW, Suite 500

Washington, DC 20004 Washington, DC 20001

(202) 739-5435 (202) 659-8201

jjmcmackin@wms-jen.com

Counsel of Record

Counsel for Petitioners

April 17, 2013

——. $e

= ————_—_——_- —-

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

In the course of a series of regulatory actions

taken by the Environmental Protection Agency subse-

quent to Massachusetts v. EPA, 549 U.S. 497 (2007),

the Agency decided that a particular Clean Air Act

program regulating “stationary sources,” the Preven-

tion of Significant Deterioration (PSD) program, must

apply to greenhouse gases, as a matter of a Chevron

“step-one” mandate, once the Agency regulated

“mobile-source” greenhouse-gas emissions. The Agency

referred to this as the “automatic triggering” of PSD

greenhouse-gas regulation. In the EPA’s view, the

matter turned on the meaning of the term “any air

pollutant” in the PSD provisions governing those

emitters required to seek permits, i.e., any “major

emitting facility.” 42 U.S.C. §§ 7475(a), 7479(1) (2013).

By longstanding regulations, the Agency had defined

“any air pollutant” to include any air pollutant “sub-

ject to regulation” under any other part of the Act —

hence the “automatic triggering” once mobile sources

were regulated. As part of a consolidated judgment

addressing multiple challenges to the various Agency

actions involved, a panel of the United States Court

of Appeals for the D.C. Circuit upheld EPA’s action.

The questions presented are:

1. Whether the Court of Appeals erred in determin-

ing that regulating stationary-source greenhouse-gas

emissions under the Clean Air Act’s Prevention of

Significant Deterioration program, and an associated

‘i

QUESTIONS PRESENTED -— Continued

program known as “Title V,” is statutorily required

as a matter of a Chevron “step-one” legislative com-

mand.

2. Whether, in determining that the Clean Air Act

unambiguously requires application of the PSD

program to greenhouse gases, the Court of Appeals

and the EPA ignored required elements of statutory

construction in cases of this type by failing to exam-

ine whether the various statutory components of that

program were contradicted, nullified, or otherwise

contravened by application to greenhouse gases, and,

further, without considering whether alternative

mechanisms exist for regulating stationary-source

greenhouse-gas emissions under the Act that better

serve the statute’s dual concerns with the economy

and the environment.

3. Whether a claimant may be barred from assert-

ing a claim that applying the PSD program to green-

house gases is not authorized by the Act because the

claimant, or other large emitters of conventional

pollutants, did not assert that claim at the time EPA

promulgated decades-old regulations that involved

conventional pollutants only, when, first, the claim at

issue is uniquely and entirely limited to the applica-

tion of the statute to greenhouse gases, and, second,

the Agency, in any event, itself has modified the

regulations to reflect a unique greenhouse-gas-

specific definition of the key statutory term.

PARTIES TO THE PROCEEDING

Petitioners are the Energy-Intensive Manufac-

turers Working Group for Greenhouse Gas Regula-

tion (Energy-Intensive Manufacturers Group) and

the Glass Packaging Institute (GPI). The Energy-

Intensive Manufacturers Group was the sole petition-

er in the two principal cases below that are involved

in this petition (Nos. 10-1114 and 10-1206), and GPI

was a petitioner in related cases.

Respondents herein are the Environmental Pro-

tection Agency and Robert Perciasepe, Acting Admin-

istrator, Environmental Protection Agency.

The petitioners in related cases addressed by the

consolidated judgment below, which are not petitioners

herein, included the American Chemistry Council;

American Frozen Food Institute; American Fuel &

Petrochemical Manufacturers; American Petroleum

Institute; Brick Industry Association; the Clean Air

Implementation Project; Corn Refiners Association;

Glass Association of North America; Glass Packaging

Institute; Independent Petroleum Association of Amer-

ica; Michigan Manufacturers Association; Mississippi

Manufacturers Association; National Association of

Home Builders; The National Association of Manu-

facturers; National Oilseed Processors Association;

Specialty Steel Industry of North America; Tennessee

Chamber of Commerce and Industry; Western States

Petroleum Association; West Virginia Manufacturers

Association; Wisconsin Manufacturers and Com-

merce; Coalition for Responsible Regulation, Inc.;

PARTIES TO THE PROCEEDING — Continued

Industrial Minerals Association — North America;

National Cattlemen’s Beef Association; Great North-

ern Project Development, L.P.; Rosebud Mining Co.;

Alpha Natural Resources, Inc.; Southeastern Legal

Foundation, Inc.; The Langdale Company; Langdale

Forest Products Company; Langdale Farms, LLC;

Langdale Fuel Company; Langdale Chevrolet-

Pontiac, Inc.; Langdale Ford Company; Langboard,

Inc. — MDF; Langboard, Inc. — OSB; Georgia Motor

Trucking Association, Inc.; Collins Industries, Inc.;

Collins Trucking Company, Inc.; Kennesaw Transpor-

tation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer

Mart, Inc.; Georgia Agribusiness Council, Inc.; John

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

Dana Rohrabacher, U.S. Representative, California

46th District; John Shimkus, U.S. Representative,

Illinois 19th District; Phil Gingrey, U.S. Representa-

tive, Georgia 11th District; Lynn Westmoreland, U-S.

Representative, Georgia 3rd District; Tom Price, U.S.

Representative, Georgia 6th District; Paul Broun,

U.S. Representative, Georgia 10th District; Steve

King, U.S. Representative, Iowa 5th District; Nathan

Deal, U.S. Representative, Georgia 9th District; Jack

Kingston, U.S. Representative, Georgia lst District;

Michele Bachmann, U.S. Representative, Minnesota

6th District; Kevin Brady, U.S. Representative, Texas

8th District; John Shadegg, U.S. Representative,

Arizona 3rd District; Marsha Blackburn, U.S. Repre-

sentative, Tennessee 7th District; Dan Burton, U.S.

Representative, Indiana 5th District; Clean Air

PARTIES TO THE PROCEEDING -— Continued

Implementation Project; American Iron and Steel

Institute; Gerdeau Ameristeel US Inc.; Energy-

Intensive Manufacturers Working Group on Green-

house Gas Regulation; Peabody Energy Company;

American Farm Bureau Federation; National Mining

Association; Utility Air Regulatory Group; Chamber

of Commerce of the United States of America; Mis-

souri Joint Municipal Electric Utility Commission;

National Environmental Development Association’s

Clean Air Project; Ohio Coal Association; Indiana

Cast Metals Association; National Federation of

Independent Business; North American Die Casting

Association, State of Texas; State of Alabama; State of

South Carolina; State of South Dakota; State of

Nebraska; State of North Dakota; Commonwealth of

Virginia; Rick Perry, Governor of Texas; Greg Abbott,

Attorney General of Texas; Texas Commission on

Environmental Quality; Texas Agriculture Commis-

sion; Texas Public Utilities Commission; Texas Rail-

road Commission; Texas General Land Office; Haley

Barbour, Governor of the State of Mississippi;

Portland Cement Association; Georgia Coalition for

Sound Environmental Policy, Inc.; South Carolina

Public Service Authority; Mark R. Levin; Landmark

Legal Foundation; Competitive Enterprise Insti-

tute; FreedomWorks; the Science and Environmen-

tal Policy Project; Pacific Legal Foundation. The

respondents in related cases addressed by the

consolidated judgment below included the U.S.

Environmental Protection Agency (EPA) and Lisa P.

PARTIES TO THE PROCEEDING — Continued

Jackson, Administrator, U.S. Environmental Protec-

tion Agency.

RULE 29.6 STATEMENT

Pursuant to the Court’s Rule 29.6, undersigned

counsel state that the petitioners have no parent

corporation and that no other publicly held corpora-

tion has ownership in them.

vill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............0.............005. i

PARTIES TO THE PROCEEDING ...................... ill

RULE 29.6 STATEMENT ...................0... ccc eeeee eee vi

TABLE OF CONTENTS ............ccccscsccscsccscecescecees vii

TABLE OF AUTHORITIES .................0....0....0..... x

I I is cicliiniesonnininbdianianinaaiinmnedbiiesiondiin 1

i iacntahicenieiciiabaiiaibadiiaanenmaiiie 1

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED..............ccccsccscsecccsccecsceeces 2

I ii nit ialaenarchiisiniiomigiabadntinnee 2

STATEMENT OF THE CASE......................2.0202055 10

REASONS FOR GRANTING THE PETITION.... 19

I. The Court of Appeals Has Decided a Mat-

ter of Extraordinary National Importance

that Should Be Decided — and Corrected

ET TE TE Rcnsccnniinnepiiciisatiiaimiiminbindeaoneniins 23

A. PSD-Program Carbon Regulation Is

One of the Most Extensive, Intrusive,

Unworkable and Potentially Damaging

Regulatory Regimes Ever Imposed ..... 23

B. The Interpretive Approach of the Agen-

cy and the Circuit Court Removes Poli-

cy Considerations and Judgment from

Vitally Important Policy Decisions Con-

cerning How to Regulate Carbon Diox-

ide and Other Greenhouse Gases........ 29

vill

TABLE OF CONTENTS — Continued

Page

C. The Court of Appeals Has Erected an

Erroneous “Timeliness” Bar in Cases of

This Type, Which Will Have the Effect

of Denying Claimants a Reasonable

Opportunity to Seek Judicial Review

of Allegedly Unauthorized Expansions

of the Scope of Regulatory Statutes,

Particularly Those Driven by Changes

in Science or Technology ..................... 30

II. The Decision of the Court of Appeals Con-

flicts with Important Decisions of This

ie cis niecatiaeitabalcslatcadeidabininanniahernah dada tale lias 31

A. This Case Represents a Fundamentally

Mistaken Approach to Statutory Inter-

pretation in Cases Regarding One of

Our Complex, Multi-Part Regulatory

Statutes Considered in Contexts Not

Contemplated by the Enacting Con-

I Nerisiscactiiiphiindhenid sib anicashaeienisialiagihenanpedainiasiciibaniaes 31

B. The Mistaken Approach to Statutory

Interpretation Is Inextricably Linked

to a Misreading of this Court’s Deci-

sion in Massachusetts v. EPA.............. 37

C. The Mistaken Approach Likewise

Involves Misunderstanding and Mis-

use of Important Doctrines in Admin-

istrative Law, Particularly Chevron,

“Implied Delegation” and “Absurd

IIIT cisiiniisareinisincninthioipiinaclyniainda 39

| _______EIO a Tere Tne a DEER OEE 41

TABLE OF CONTENTS -— Continued

APPENDICES

The Opinion of the United States Court of

Appeals for the District of Columbia Circuit

III ices ninsiindiinnpenmnniunsenennnienal Pet. App. 1

Opinion of the United States Court of Appeals

for the District Court of Appeals (denial

of rehearing en banc) (December 20,

aided isla Ah icine cil eneeahiainnibicailiidapneieediane Pet. App. 102

Clean Air Act, 42 U.S.C. §§ 7401 et seq. ..... Pet. App. 162

TABLE OF AUTHORITIES

Page

CASES

Brown v. Gardner, 513 U.S. 115 (1994).............0000.... 31

Chevron, U.S.A, Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984) ..................02.2205- passim

Coal. for Responsible Regulation, Inc. v. E.PA.,

No. 09-1322, 2012 WL 6621785 (D.C. Cir.

I TTT sii ccincsccedsistcetsnaniastiniastanialontaideemmaliinismnadeebialtnini 17

Crowell v. Bensen, 285 U.S. 22 (1932) ......... ccc 36

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000)...... 31, 32, 33, 34

Gonzales v. Raich, 541 U.S. 1 (2005) ..................02..... 36

Massachusetts v. E.P-A., 549 U.S. 497 (2007) ..... passim

STATUTES

Oe rs Se PN OR ccnccicnnsceserintncnseneccssssonsens i, 17

ee Ss Pree CR eitcrsiccnccnedicisnsciniccneinsisisonosens 15

42 U.S.C. § T47TE(]K1) (2O1S)..............cccccccccscscccccsccccee 15

43 U.S.C. § T4THENSNb) (BOIS) ..........0..0...cccccoscccccceee 15

a: ae Se I iaciiechcnieiticintcnnticncencennnscasiesiniapiudiion i

| | 25, 28

ye Pe i ccsccinsisssinincnisnnsittinieniineiiniiasiads 39

SD BR, © Fe) Ge iene cescescstneniccssscsecstsnscsenseenes 17

TABLE OF AUTHORITIES — Continued

FEDERAL REGISTER

Prevention of Significant Deterioration and

Title V Greenhouse Gas Tailoring Rule, 75

Fed. Reg. 31,513 (June 3, 2010) (to be codi-

ek passim

Endangerment and Cause or Contribute Find-

ings for Greenhouse Gases Under Section

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

66,496 (Dec. 15, 2009) (to be codified at 40

SI Ei insiiscncinnniatiniinbuiideiitiianiadnipiidilibideaiannvineasine 11

Light-Duty Vehicle Greenhouse Gas Emission

Standards and Corporate Average Fuel

Economy Standards, 75 Fed. Reg. 25,323

(May 7, 2010) (to be codified at 40 C.F.R. pts.

85, 86, 531, 533, 536-538, and 600)........................ 12

Reconsideration of Interpretation of Regula-

tions That Determine Pellutants Covered by

Clean Air Act Programs, 75 Fed. Reg. 17,004

(Apr. 2, 2010) (to be codified at 40 C.F-R. pts.

a I i la aed nace aah Neenah naire 12

Advance Notice of Proposed Rulemaking on

Regulating Greenhouse Gases under the

Clean Air Act (CAA), 73 Fed. Reg. 44,354

(proposed July 30, 2008) (to be codified at 40

NS NET: Sil iersstshsirisiniitensciaanapsndicnannlcendeiiinitbnieiiibensinepeitnndia 25

xXil

TABLE OF AUTHORITIES — Continued

MISCELLANEOUS

ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS

TE ae a eee a I 4

PSD and Title V Permitting Guidance for

Greenhouse Gases, EPA-457/B-11/001

I IED scciccstiissenhasiiiebetnnaniibiaten 15, 25, 26, 28, 29

STEPHEN A. BREYER, ACTIVE LIBERTY: INTERPRET-

ING OUR DEMOCRATIC CONSTITUTION (Knopf

EI reruns e ee Uren DOP eP ae Ren DM PO Bw eS 4

PETITION FOR WRIT OF CERTIORARI

Petitioners, the Energy-Intensive Manufacturers

Working Group on Greenhouse Gas Regulation and

the Glass Packaging Institute, respectfully petition

this Court for a writ of certiorari to review the judg-

ment 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 Petitioner Appendix (“Pet.

App.”) 1. The unpublished order of the D.C. Circuit

denying rehearing en banc, including statements

concurring or dissenting from the denial of rehearing

en banc, is set out at Pet. App. 102.

JURISDICTION

The judgment of the Court of Appeals in the

several cases consolidated below was entered on June

26, 2012. Pet. App. 1. A petition for rehearing en banc

was denied on December 20, 2012. Pet. App. 102. This

Court has jurisdiction under 28 U.S.C. § 1254(1)

(2013).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitution of the United States provides,

in pertinent part, that “[aJll legislative Powers herein

granted shall be vested in a Congress of the United

States, which shall consist of a Senate and House of

Representatives.” U.S. Const. art. I, § 1.

The Constitution of the United States provides,

in pertinent part, that “[t}he Congress shall have

Power ... [tlo regulate Commerce with foreign Na-

tions, and among the several States, and with the

Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

The Constitution of the United States provides,

in pertinent part, that “(t]he Congress shall have

Power ... [tlo make all Laws which shall be neces-

sary and proper for carrying into Execution the

foregoing Powers, and all other Powers vested by this

Constitution in the Government of the United States,

or in any Department or Officer thereof.” U.S. Const.

art. I, § 8, cl. 18.

Relevant provisions of the Clean Air Act, 42

U.S.C. §§ 7401 et seq. (2013) are reproduced at Pet.

App. 162.

INTRODUCTION

The Court will have received a number of worthy

petitions in this important matter. Ours is among

those that primarily address questions concerning the

proper interpretation of the Prevention of Significant

Deterioration (PSD) provisions of the Clean Air Act in

the context of the Environmental Protection Agency’s

(EPA’s) attempt to apply the PSD program to green-

house gases (GHGs).

It may be helpful to the Court if we outline here

how our petition relates to others of which we are

aware that deal with closely related questions. In

general, our principal argument raises the broadest

and most fundamental challenge to EPA’s interpretive

approach to the provisions. We have framed our first

question presented so that it is broad enough to

encompass our principal merits argument, as well as

those of other petitions concerned with interpretation

of the PSD provisions in the GHG context, should the

Court seek briefing on multiple approaches.

Petitioners’ Principal Argument

Our principal argument is that the Agency and

the court below used a mistaken approach to statuto-

ry construction, and that, when the correct approach

is used, it is apparent that the application of the PSD

program to greenhouse gases is not required by the

statute as a matter of Chevron step-one as the Agency

and lower court believe. In fact, it is our position that

this program is not authorized by the Act.

Under the correct interpretive approach, it is

apparent that each of the most important PSD statu-

tory provisions involved is contradicted, nullified, or

otherwise contravened by the attempt to apply the

PSD program to carbon dioxide and other greenhouse

gases. This is only apparent, however, once the differ-

ences between greenhouse gases and the conventional

pollutants for which Congress designed the program

are considered. Those differences need to be consid-

ered in combination with the relevant PSD provi-

sions, and the consequences of applying those

provisions to GHGs need to be assessed in relation te

the statute’s intent, purposes, structure, and con-

cerns.

The consequences that must be considered as

part of the core interpretive approach in a case of this

type result directly from the application of text to the

relevant facts, and they have thus been called “textu-

al consequences.” Though the precise role of “conse-

quences” can sometimes vary in different approaches

to statutory construction, “textual consequences”

represent an area of clear agreement.’ Our argument,

further, is that textual consequences are particularly

important in cases that involve the application of a

statute to a context that Congress did not contem-

plate as it fashioned the provisions in question.

By contrast, the Agency and the Court of Appeals’

approach to interpretation of the statute is deficient

' See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TExTs 352 (Thompson/West 2012).

* Cf. Scalia & Garner, id., and STEPHEN A. BREYER, ACTIVE

LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 120

(Knopf 2005).

in three respects. First, it relies on language alone —

in the course of a “plain language” analysis it ignores

the facts that differentiate GHGs from conventional

pollutants and the importance of those differences

when addressing the relevant statutory text. Second,

the approach is highly selective in the text it consid-

ers, ignoring the most important and telling provi-

sions. Third, the approach fails to consider the “whole

statute” in the sense of the entire “statutory scheme,”

and thus fails to recognize that there are other pro-

grams within the Clean Air Act far better suited to

the regulation of the carbon emissions of stationary

sources; furthermore, this approach fails to consider

what this might mean for whether an ill-suited

program must cover GHGs.

Put differently, the PSD program’s provisions are

transformed by the attempt to apply them to carbon

dioxide, and those transformations must be included

as a part of the interpretive assessment. A clear

example of this transformation is the one featured in

the Agency’s effort to use the “absurd consequences”

doctrine (and others) to rewrite, on a rolling basis, the

statute’s threshold for the size of facilities regulated.

In order to capture only the nation’s largest industrial

facilities, the statute sets the threshold at 100 (and

under some circumstances 250) tons per year of any

air pollutant. Yet the statutory threshold when ap-

plied to ubiquitous and abundant carbon-dioxide

emissions is transformed into its opposite. It captures

facilities large and small.

As a matter of statutory construction, there are

three primary problems with the Agency and the

lower court’s treatment of this particular “absurd

consequence” and its standing in relation to the

broader issues in statutory interpretation. First, as

other petitions will likely emphasize, the Agency and

lower court’s approach violates the requirement that

application of the absurd consequences doctrine as

“rewriting authorization” must be a last resort, and a

reasonable construction that avoids the absurdity

must be adopted, if one is available, before turning to

the doctrine for that purpose. Our argument adds a

second reason the Agency and the lower court’s ap-

proach is faulty — it fails to include this consequence

as part of the assessment of textual consequences

required by the proper interpretive approach. The

Agency and lower court do not include it as part of

the interpretive process going to the basic question of

whether the PSD program can properly apply to

greenhouse gases. Its consideration was required

quite apart from the terms of the absurd consequenc-

es doctrine; it was required by the underlying proper

interpretive process in the first instance.

The third basic reason the Agency and the

Court’s treatment of this particular transformation is

part of a failed interpretive approach, as we empha-

size to a far greater degree than other petitions, is

that the Agency and the Court stopped there. That is,

they failed to consider the many other textual provi-

sions, some of them even more important, that were

transformed by application to greenhouse gases in

ways that contradict the statute.

Against this background, we can more specifical-

ly place our petition in relation to others the Court

has received or is likely to receive.

The petition of the Utility Air Regulatory Group

(UARG) has already been filed (because UARG did

not seek the extension provided to other petitioners).

Their petition raises the question of whether the PSD

program can be properly applied to greenhouse gases,

as does ours, and the UARG petition, like ours, uses

the absurd consequence involving the transformation

of the effect of the 100/250-ton limit as a reason that

the statute cannot properly apply. The UARG petition

emphasizes one other aspect of the PSD statutory

provisions. It relies on those provisions that embody

Congress’ intent that the PSD program apply only to

those pollutants that affect air “quality” in the sense

of a substance harmful to breathe.

We seek the opportunity to demonstrate that

many other provisions of the PSD text are also con-

tradicted, nullified, or otherwise contravened by

application to GHGs. Many of these other provisions

are highly consequential for energy-intensive indus-

tries. The potentially enormous (and difficult to

measure) costs and disruption involved in PSD regu-

lation of carbon, especially those that result from

changes in industrial processes, practices, designs,

and methods of operation that can be mandated

under the PSD program, have enormous and unique

implications for the manufacturing sector.

Moreover, our argument does not rely in a “di-

rect” or final way on Congressional intent at the time

of passage in and of itself. Our analysis takes an

additional step — one involving textual consequences.

It says that, consistent with this Court’s guidance,

even if the flexibility afforded by an “implied delega-

tion” to deal with a newly arising and un-

contemplated problem would allow an agency to move

beyond in some respects things “specifically intended”

at the moment of the statute’s enactment, it can do so

only if the statute still would make sense in its own

terms. An agency may not do so if, upon examination,

application to the new context contravenes the statu-

tory provisions in ways that render the statute un-

suited for the new application and contrary to the

statute’s intent, purposes, structure, and limitations

considered in the new context.

For example, we are in complete agreement with

UARG about the importance of the fact that Congress

constructed the PSD provisions having in mind air

quality and the associated reliance on local conditions

and impacts. But we would explore further important

consequences of this for the attempt to apply the

statute to GHGs. For example, this makes a nullity of

the PSD provisions establishing measurements of

local pollutant levels and assessment of local envi-

ronmental impacts as the factual context, and thus

the source of balanced and reasonable judgments, for

PSD permitting decisions.

Also, while the UARG petition raises a standing

question, we submit a different threshold question.

UARG focuses on the lower court’s entangling of

standing with the key merits question about applica-

bility of PSD to greenhouse gases. “© urs focuses on

the “timeliness” bar the court erected.

As we will further explain in our Statement, our

reading is that the court proceeded to the statutory

question of whether the PSD provisions can (or in its

view, “must”) accommodate greenhouse gases based

on — only because of — the “timeliness” of the chal-

lenge of the Oil Seed Producers and the Homebuild-

ers Association, who, because of their minimal

emission of conventional pollutants, could not have

challenged the relevant decades-old regulations

covering conventional pollutants. It denied as untime-

ly the challenges brought by larger emitters of con-

ventional pollutants. Hence, our view of the court’s

core error in this respect involves its mistaken notion

that a challenge by large emitters of conventional

pollutants to PSD applicability to greenhouse gases

could reasonably have been brought, or needed to be,

at the time those regulations were issued, and that is

how we frame the question presented. As petitioners

here present it, the court dismissed the challenges to

the Timing and Tailoring rules because it viewed the

statutory-interpretation question as separate from

those rules, which it viewed as providing only “relief”

from “full” force of the application to greenhouse

gases which the statute would otherwise require.

The other petition (or type of petition, if there is

more than one) that it is important to distinguish

from ours is that (or those) which do not seek relief

from PSD GHG applicability for all potentially cov-

ered facilities, only for smaller facilities. Under this

argument, all large emitters who have to obtain PSD

permits for conventional pollutants would also be

covered for greenhouse-gas emissions. This would

include most American industries, and it would leave

most of American industrial production subject to

PSD regulation. The relief that petitions with this

thrust would provide is very similar in scope to the

relief provided by the Agency under its “absurd

consequences” rewriting. Such petitions seek a

sounder statutory basis for such relief. The interpre-

tation of the statute they propose would apply to

conventional pollutants as well as greenhouse gases.

In keeping with the narrower focus, this argu-

ment does not address the various “substantive”

provisions of the PSD program or their transfor-

mation, contradiction, or nullification when applied to

greenhouse gases. Its focus is solely on the proper

interpretation of provisions relating to the 100/250-

ton threshold governing the size of facilities subject to

PSD regulation.

STATEMENT OF THE CASE

In the conception of the Agency and the lower

court, PSD carbon regulation is the result of an

essentially unstoppable cascade of dominoes that

began with Massachusetts v. EPA. In Massachusetts,

the Court found the term “air pollutant” in the Clean

Air Act “flexible” and “capacious” enough to include

greenhouse gases. Massachusetts, 549 U.S. at 532.

Massachusetts contains. significant limiting

language, and its express mandate to EPA is narrow-

ly tailored. At issue in that case was whether EPA

had to proceed to make an “endangerment finding”

with respect to greenhouse gases under the mobile-

source provisions of the Act. This Court concluded

that, “Because greenhouse gases fit well within the

Clean Air Act’s capacious definition of ‘air pollutant,’

we hold that EPA has the statutory authority to

regulate the emission of such gases from new motor

vehicles.” Id. The final line of the Court’s opinion

states, “We hold only that EPA must ground its

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

535. The Court also said, “We need not and do not

reach the question of whether on remand EPA must

make an endangerment finding, or whether policy

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

makes such a finding. Cf. Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843-844

(1984).” Id. at 534.

The mobile-source endangerment finding that

was the subject of Massachusetts is the first of four

proceedings that followed that case and that were

consolidated for review before the D.C. Circuit in this

case. This first Agency proceeding was officially

entitled Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section 202(a)

of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15,

2009) (to be codified at 40 C.F.R. ch. I). Petitioners do

not challenge EPA’s actions in that rulemaking.

The second proceeding, known as the “Tailpipe

Rule,” established greenhouse-gas emission stan-

dards for light-duty vehicles, which we likewise do

not challenge. Light-Duty Vehicle Greenhouse Gas

Emission Standards and Corporate Average Fuel

Economy Standards; Fina] Rule, 75 Fed. Reg. 25,323

(May 7, 2010) (to be codified at 40 C.F.R. pts. 85, 86,

531, 533, 536-538, and 600). This rule is nevertheless

relevant to our case as what the Agency conceived to

be the “triggering event” for PSD stationary-source

regulation. As a result of the rule, GHGs became an

air pollutant “subject to regulation under the Act,”

because, as is the basis for the Agency’s position, its

regulations had long interpreted the PSD statute’s “any

air pollutant” phrase to include the Agency-injected

“subject to regulation under the Act” addendum.

The third proceeding, known as the “Timing

Rule,” addressed the question of “when” greenhouse

gases became “subject to regulation under the Act”

after the Tailpipe Rule. Reconsideration of Interpre-

tation of Regulations That Determine Pollutants

Covered by Clean Air Act Programs, 75 Fed. Reg.

17,004 (Apr. 2, 2010) (to be codified at 40 C.F.R. pts.

50-51, and 70-71). The key issue of whether — as

opposed to when -— light-duty-vehicle regulation

“automatically triggered” PSD _stationary-source

regulation was not addressed in the rule; instead it

was the unexamined premise of the rule. Hence, in

terms of the Petitioners’ core claim, it was at this

juncture that the Agency first failed to engage in the

requisite statutory interpretation, instead treating

the matter as self-evident and somehow already

decided.

The fourth proceeding was the “Tailoring Rule,”

which employed the “absurd consequences” doctrine,

along with the “administrative necessity” and “one

step at a time” doctrines, to address the single “ab-

surd consequence” that the Agency had pre-selected

for mitigation — the dramatic increase in the number

of facilities regulated under the program and the

increased sweep of the type of facility regulated.

Prevention of Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,513

(June 3, 2010) (to be codified at 40 C.F.R. pt. 52).

Here again, the assumed and unexamined premise

was that PSD did apply to GHGs. The Agency con-

cluded that the number of facilities covered and

permits required would increase many hundreds of

times, and that requiring all of these newly regulated

facilities to comply with permitting obligations would

“overwhelm permitting authorities,” incur additional

costs of billions of dollars per year, and “adversely

affect national economic development.” Tuiloring

Rule, 75 Fed. Reg. at 31,556-57. The Agency decided

on a plan of a rolling re-writing of the 100/250-ton-

per-year (tpy) threshold, beginning with 100,000 tons.

Id. at 31,524 and 31,548-49.

For purposes of this petition, there are four

particularly important aspects of the Tailoring Rule.

First, the absurdity that the Agency identifies

and cures is not the regulation of small facilities

contrary to Congress’ intent that the program cover

only the largest emitters, but the much narrower

problem that neither the permitting authorities nor

the small facilities could deal well with the permit-

ting process. Hence, while the Agency initially re-

wrote the statute’s 100/250-tpy thresholds to be a

100,000-tpy threshold, it promises to look for permit-

ting “streamlining” techniques to move closer to the

100/250-tpy level, explicitly reserving judgment on

how far it will or can go, based on streamlining

progress, in capturing the escaped small emitters.

Tailoring Rule, 75 Fed. Reg. at 31,566. It promises

that it “seeks to include as many GHG sources in the

permitting programs at as close to the statutory

thresholds as possible and as quickly as possible... .”

Id. at 31,548. Hence, the Agency avowedly seeks a

program that extends to hundreds of thousands or

millions of emitters of all kinds, not just the largest

industrial emitters that Congress targeted for PSD

regulation, which, the Agency reports, number about

15,000. Id. at 31,540.

Second, though the Agency had planned and

issued a Notice of Proposed Rulemaking to solve the

crush of permitting by directly rewriting the 100 and

250 numbers, it abandoned that in the final rule in

favor of a new definition of the term “subject to regu-

lation” itself. Under this new definition, which ap-

plies to greenhouse gases only, GHGs are “subject to

regulation” if they are emitted from a facility emitting

them in amounts above the Agency’s new (and future)

numerical thresholds, but not “subject to regulation”

if emitted from a facility emitting them in lesser

amounts. Jd. at 31,575-83 and 31,607. This is the first

time the Agency had defined a “regulated pollutant”

by the quantity in which it is emitted rather than by

the kind of pollutant the Agency sought to regulate.

Third, in what appears to be almost an aside in

the Rule, and as elaborated upon in the Agency’s

related Permitting Guidance, permitting authorities

and applicants are told they should ignore the provi-

sions of § 165(e) of the Act (42 U.S.C. § 7475(e) (2013))

that set out the program’s monitoring and environ-

mental-impact-analysis requirements. It includes

among the provisions to be ignored those found in

§ 165(eX1), 42 U.S.C. § 7475(eX1), requiring an

analysis of the air surrounding the applicant’s facility,

as well as the requirement found in § 165(eX3 XB), 42

U.S.C. § 7475(eX3Xb), requiring analysis of specified

local environmental impacts on things such as vege-

tation, soil and visibility. The Agency explains that

these are to be ignored because such analyses do not

make sense for greenhouse gases, which cause harm

by changes in upper layers of the atmosphere. Tailor-

ing Rule, 75 Fed. Reg. at 31,520; PSD and Title V

Permitting Guidance for Greenhouse Gases, EPA-

457/B-11/001, 47-48 (March 2011).°

* This is relevant to the issues presented in this petition in

several ways, two of which are most important. First, it nullifies

an essential ingredient of the statutory scheme that provides a

reasoned framework for the Agency’ permitting decisions.

(Continued on following page)

Fourth, though the Agency several times asserts

that it is not “reopening” the question of whether the

PSD provisions apply to greenhouse gases, it does in

the course of its “absurd consequences” analysis make

a (one-paragraph) foray into statutory interpretation

addressed to that question. Tailoring Rule, 75 Fed.

Reg. at 31,548. It evidently believed it must do so

because a principle of “absurd consequences” rewrit-

ing is that the statute otherwise and “literally” would

require the absurd consequence. The Agency thus

here explicitly based its argument for PSD applicabil-

ity to GHGs on the assertion that the statutory

“components” can be “readily applied” to GHGs and

thus can “readily accommodate” them. /d.

In fact, there are only two components of PSD

regulation which the Agency specifically examined to

see if they can be “readily applied” to and can “readily

accommodate” greenhouse gases. First, in the Tailor-

ing Rule’s principal topic and action, the Agency

concluded that the fit of the 100/250-ton PSD thresh-

olds and greenhouse gases was so poor it was absurd,

and the program could not, without “tailoring,” ac-

commodate the results. The other component it

examined, though it does not incorporate this insight

into the analysis, is the set of §165(e) impact-

analysis-requirement provisions discussed in point

Second, the statutory provision is couched in mandatory lan-

guage, including the phrase, “each pollutant subject to regula-

tion under the Act,” that taken literally would require

application to greenhouse gases.

three above — those that fit so poorly they should be

ignored.

Multiple challenges were brought to each of the

four EPA rulemakings. They were consolidated for

review in Coalition for Responsible Regulation uv.

EPA.‘ A three-judge panel of the D.C. Circuit, in a per

curiam opinion, rejected all challenges to the four

rulemakings. Pet. App. 1. The following elements of

the decision are of particular relevance to this peti-

tion.

The court held that the phrase “any air pollu-

tant” contained in the 42 U.S.C. §§ 7745(a), 7749(1)

“eligibility trigger” “includes all regulated air pollu-

tants, including greenhouse gases” (Pet. App. 67) and

that EP.’ 's “longstanding” interpretation to that effect

is “compelled by the statute” (Pet. App. 89) and is the

only “logical” (Pet. App. 67) or “plausible” (Pet. App.

68) reading of “any air pollutant.” The court’s reason-

ing relies on the generality of the word “any” (Pet.

App. 67) and the Supreme Court’s statement in

Massachusetts that greenhouse gases “are indisputa-

bly an ‘air pollutant’” (Pet. App. 66), finds that this

reading is “buttressed” by Massachusetts’ holding that

the statute’s “overarching” definition “unambiguous-

ly” includes greenhouse gases (Pet. App. 66), and

states that it finds further support throughout the

CAA, citing three provisions. Pet. App. 66-71.

* Coal. for Responsible Regulation, Inc. v. E.PA., 684 F.3d

102 (D.C. Cir. 2012) (to be found at Pet. App. 1).

The court also agreed with the EPA that because

the challenges to the PSD triggering mechanism as

set out in the Agency’s “longstanding” regulations

were based on “legal arguments that were available

during the normal judicial review periods for the

1978, 1980 and 2002 Rules,” none of the industry

challenges were timely — except for those of the

National Association of Home Builders and Oilseed

Processors Association. Pet. App. 56. Those two

groups were not barred because their emissions even

of conventional pollutants were too small to qualify at

the 100/250-ton threshold, and thus the addition of

greenhouse gases gave them newly “ripened” claims

concerning the regulations, which they brought

within the required 60-day period. Jd. The court

proceeded to the merits on that basis.

Petitions for rehearing en banc were denied on

December 20, 2012, with two dissents. Pet. App. 102.

In their joint response to the dissents from the denial

of rehearing, the three judges of the original panel

concluded:

To be sure, the stakes are high. The underly-

ing policy questions and the outcome of this

case are undoubtedly matters of exceptional

importance. The legal issues presented, how-

ever, are straightforward, requiring no more

than the application of clear statutes and

binding Supreme Court precedent. There is

no cause for en banc review. Pet. App. 109.

Earlier in the statement, the panel summarized its

approach to the case, and to the interpretation of the

statute, thus:

... Here, Congress spoke clearly, EPA ful-

filled its statutory responsibilities, and the

panel, playing its limited role, gave effect to

the statute’s plain meaning. See Chevron,

U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43

(1984) (“if the intent of Congress is clear,

that is the end of the matter; for the court, as

well as the Agency, must give effect to the

unambiguously expressed intent of Con-

gress.”) Pet. App. 108.

REASONS FOR GRANTING THE PETITION

Regulation of carbon-dioxide and other green-

house-gas emissions of “stationary sources” by EPA

under the PSD program is likely the most extensive,

intrusive, burdensome, and potentially harmful

scheme of regulation in the nation’s history. In its

basic structure as well as in all of its important

provisions, the PSD program does not fit the unique

challenges presented by greenhouse-gas regulation.

PSD regulation is prescriptive, particularistic, case-

by-case, and painfully prolonged. It requires a public

hearing in every case, and demands “maximum”

achievable reductions. It is not possible to conceive of

a worse way of regulating carbon-dioxide emissions.

No other country has contemplated any such thing,

and no policymaker would ever recommend it.

PSD regulation of carbon is a policy debacle,

unnecessary, indefensible, and undefended, that

emerged without an exercise in reasoned policymak-

ing from a fundamentally erroneous approach to

statutory interpretation in cases of this type, a lan-

guage-only and tendentiously language-selective

approach that renders the statute helpless in the face

of nonsensical regulatory results in a new context. It

assigns to Congress responsibility for “directly” and

“precisely” commanding the imposition of a regulato-

ry regime Congress did not and would never create.

PSD carbon regulation is an outcome that exceeds all

reasonable limits, produced by a process that evades

constitutional processes.

The position of the Agency, now adopted by the

lower court, was that “the law made them do it.”

Petitioner respectfully submits that as important as

this case is because of the nature of the regulation it

involves, it is even more important because of the

misconception of “law” it involves. It is a conception

that destroys the proper relationship between law,

policymaking, and the respective branches of gov-

ernment. In a statutory case, “what the law is” is

determined by the statute’s interpretation, under the

correct standards and processes, not by a form of

radically de-contextualized literalism.

* In fact, the government agreed to this very phrase in oral

argument below.

When a statute created for one context is applied

to another there is no a priori reason to believe that

the resultant regulatory regime will make sense or

that it will not contradict the intended meaning and

import of the statutory terms. The “literal” meaning

of the statutory provisions in the new context, such as

those in this case meant to define and cover only the

largest industrial facilities, may lead to outcomes

that defy the statute. In such a situation, no analyti-

cal method that depends on “language alone” can

determine whether the meaning and import of the

language involved has been transformed by the new

context into something that contradicts the statute as

a whole, and common sense as well.

The Agency and the court below did not venture

beyond plain and de-contextualized language. They

ignored the direct and practical consequences of

applying the statutory provisions to carbon-based

emissions. To compound the error, they chose to focus

only on a few provisions, ignoring most of the most

consequential and telling ones. By the first error they

divorced the statute from real-world consequences

and the evidence of meaning such consequences could

provide; by the second they divorced it from the rest

of the text and the evidence of meaning available

from it.

This approach to statutory interpretation by the

Agency and the court in fact involved policy creation —

but it was implicit, de facto policy creation that

ignored context, facts, consequences, and relevant

policy concerns. This would be dangerous in any area

of policymaking, but in the matter of carbon regula-

tion it is almost unlimitedly irresponsible, and conse-

quential — given the role of carbon-dioxide-releasing

processes in our economy and lives.

Carbon’s intimate relationship to much of human

productive activity and its associated ubiquity and

abundance puts great pressure on each of the three

questions inherent in the establishment of any regu-

latory regime: whether to regulate, if so how, and how

much. With respect to the second two questions, it is

possible that rules and standards fashioned for

conventional pollutants, when applied to carbon

dioxide, can create absurdly intrusive, unrestrained,

inefficient and, in light of alternatives, unnecessary

regulation that transgresses all reasonable limits.

That is this case.

The misconception of law involved in this case

removes human judgment from one of the most

significant policy choices of our times — how to regu-

late carbon. Similarly, it divorces governmental action

from constitutional and political accountability. It

amounts to a claim that Congress has directly and

precisely commanded something Congress did not

consider and that would be anathema to it. This case,

among other things, emphatically invokes this

Court’s obligation to say, in this context, what “the

law” is, and, at least in some respects, what the

nature of “law” is.

I. The Court of Appeals Has Decided a Mat-

ter of Extraordinary National Importance

that Should Be Decided - and Corrected -

by This Court.

A. PSD-Program Carbon Regulation Is

One of the Most Extensive, Intrusive,

Unworkable and Potentially Damag-

ing Regulatory Regimes Ever Imposed.

The scheme of regulation involved in this case is

unprecedented. The PSD program and carbon dioxide

are an unnatural and destructive mix. The PSD

permitting program is particularistic, prescriptive,

prolonged, and uncertain. When it is applied to

carbon dioxide, moreover, the components that estab-

lish its “scope” both in the sense of which facilities are

regulated and which aspects of those facilities are

regulated, written with conventional pollutants in

mind, balloon to elephantine proportions. Similarly,

the components which give PSD permitting decisions

a reasonable factual context involving local environ-

mental impacts are rendered meaningless. When

applied to carbon dioxide, the PSD provisions make

environmental permitting authorities, inter alia, into

comprehensive industrial regulators, without mean-

ingful restraints, able to dictate every decision that

affects a facility's emission of carbon dioxide or its

consumption of energy.

PSD GHG regulation can be described in five

basic dimensions.* Each is important to understand-

ing how consequential EPA's action is for American

industry, and each reflects a way that the PSD pro-

gram is unsuited for the regulation of greenhouse

gases.

1. Basic form or structure. PSD carbon regula-

tion is particularistic, prescriptive, and case-by-case.

It requires a public hearing, and has proven to be a

font of litigation. Petitioner submits it is not possible

to find a regulatory structure less compatible with

the regulation of carbon, primarily because of the

command-and-control PSD regime’s diametric and

classically inefficient opposition to market forces and

its inherent uncertainty and delay. In the Tailoring

Rule, the EPA itself described PSD permitting, before

such permitting was exponentially complicated by the

addition of carbon-dioxide emissions and energy

consumption, as a “complicated, resource-intensive,

time consuming and sometimes contentious process.”

Tailoring Rule, 75 Fed. Reg. at 55,321-22. In the

* Because the court below and the Agency view its sub-

stance (in light of the perceived “Chevron step-one” and “plain-

language” mandate) as irrelevant, the Court will not find a

meaningful description of PSD carbon regulation in the circuit

court’s opinion, and it takes considerable piecing-together to get

a good picture of it even from the Agency proceedings. Put

differently, we believe that the case, because of the elements of

the requisite and ignored interpretive approach, is “about”

something very different than the Court of Appeals and Agency

thought, and it thus involves very basic, descriptive facts about

the regulation in question which they avoided.

Agency’s first step after Massachusetts, when, in a

process it later abandoned, the Agency began think-

ing about its various options for the regulation of

carbon in an Advance Notice,’ the EPA had this to say

about it: “Because of the case-by-case nature ... the

complexity ... and the time needed to complete the

PSD permitting process, it can take ... more than a

year to receive a permit ... . Jd. at 44,500. “There

have been significant and broad-based concerns .. .

over the years due to the program’s complexity and

the costs, uncertainty, and construction delays... .”

Id. at 44,501.

2. “Scope” in the sense of aspects of production

regulated. The transformed PSD carbon-regulation

program now claims the power to prescribe every

aspect of production, practices, processes, operations,

methods, systems, techniques, equipment, technolo-

gies, work practices, or designs which affect carbon

emissions or the consumption of energy, because the

latter affects the former.® To understand the scope of

" Advance Notice of Proposed Rulemaking (ANPR) on

Regulating Greenhouse Gases under the Clean Air Act (CAA), 73

Fed. Reg. 147 (July 30, 2008).

* The statute, as part of its definition of “best available

control technology” uses the terms “production processes and

available methods, systems and techniques.” 42 U.S.C. § 747%3)

(2013). The EPA’s elaboration of what this allows it to control in

the context of GHG control is found in regulations or in PSD and

Title V Permitting Guidance for Greenhouse Gases (“Permitting

Guidance”), EPA-457/B-11/001 (March 2011). In fact, the Guid-

ance is in large measure an elaboration of things found buried in

the proceedings, particularly, in the Tailoring Rule, or otherwise

(Continued on following page)

the regulatory revolution involved, it is vital to un-

derstand that PSD carbon regulation is essentially a

scheme of energy-consumption regulation through

particularistic regulation of everything that consumes

energy. Environmental-permitting authorities have

now become comprehensive, prescriptive regulators of

industrial operations and design because they claim

the right to regulate anything and everything that

affects energy use. Permitting Guidance at 21-22, 28-

32, 40-46 (“The application of methods, systems, or

techniques to increase energy efficiency is a key

GHG-reducing opportunity that falls under the

category of ‘lower-polluting processes/practices.’”)°

The aspects regulated would include everything that

matters in making — every one of the hundreds of

complex and interrelated judgments that go into such

a decision — for instance, steel, aluminum, glass,

chemicals, paper, or cement. If this approach were

taken to the regulation of the carbon emissions of

hidden in plain sight in that rule and its predecessor proceed-

ings.

* Even with respect to energy-control equipment, as op-

posed to energy-consuming aspects of operations generally, the

program is unlimitedly prescriptive and intrusive. A useful

example is found in the Permitting Guidance for the relatively

simple matter of a “natural gas boiler,” under which regulation

could include a “combination of oxygen trim control, an econo

mizer and condensate recovery for the boiler, along with high

transfer efficiency design for the heat exchanger,” a “preventive

maintenance program” for the controller, and “a requirement for

periodic maintenance and calibration of the natural gas meter

and the steam flow analyzer.” Permitting Guidance at F1-3.

vehicles, the permitting authorities would hold sway

over the slope of the windshield, the height of the

vehicle, its weight, the pressure of its tires, and

whether it had a roof rack — and that would be before

the permitting authority got to the engine, transmis-

sion, fuel choice, or driving habits of its operator.

3. “Scope” in the sense of which facilities are

regulated. As all agree, the enacting Congress meant

to limit the PSD and Title V programs to only the

largest industrial emitters by specifying the threshold

as those facilities that emit more than 100 or 250 tpy

of “any air pollutant.” Though the Agency measures

the increase in facilities regulated caused by the

addition of GHGs to the phrase “any air pollutant” in

various (and confusing) ways, for PSD the best meas-

ure is the number of PSD permits required each year:

an increase from 668 to 81,598. Tailoring Rule, 75

Fed. Reg. at 31,538. For Title V (which involves

permitting at longer than annual intervals), the

increase in the number of permits went from 14,700

to over six million. Tailoring Rule, 75 Fed. Reg. at

31,536. Thus we have two measures of the dual-

program’s inflation: 277-fold and 408-fold. There is

likewise a transformation in “kind” — those subject to

regulation now include not just factories (now of all

sizes), but farms, apartments, churches, hospitals,

and bakeries.

4. Limits. When the potential scope and intru-

siveness of regulation reaches as broadly as the

above, it raises the question of whether there are

other, separate provisions that limit that scope.

Certainly, this would have been a central focus of a

congress that was establishing industrial regulation

of carbon emissions or energy consumption. The EPA,

however, recognizes no limit, at least in principle, on

the environmental authorities’ powers over industrial

practices, processes, production, or design. The most

trivial and most fundamental aspects of industrial

production offer good examples. With respect to the

smallest, most ancillary aspects, the Agency explicitly

refuses to rule out, in principle, the imposition of

more efficient light bulbs in the factory cafeteria,

though it says this level of regulation might not be

worth it. Permitting Guidance at 31. With respect to

fundamental things, the Agency explicitly refuses to

rule out, in principle, changes to the basic industrial

process involved that would “fundamentally redefine

the source” (Jd. at 26-27), as otherwise defined by the

facility owner’s “goal, objectives, purpose or basic

design of the facility” (Jd. at 26), though, the Agency

cautions permitting authorities, this should only be

done after a “hard look.” Id.

5. Standard. The PSD statutory scheme re-

quires the “maximum degree of reduction of each

pollutant regulated under this Act ... taking into

account energy, environmental, and economic impacts

and other costs.” 42 U.S.C. § 7479(3) (2013). To en-

force this for carbon, the Permitting Guidance calls

for “control options that result in energy efficiency

measures to achieve the lowest possible emission

level.” Permitting Guidance at 3/7. The selection

should “default to the highest level of control for

which the applicant could not adequately justify its

elimination based on energy, environmental and

economic impacts.” Jd. at 45.

B. The Interpretive Approach of the

Agency and the Circuit Court Removes

Policy Considerations and Judgment

from Vitally Important Policy Deci-

sions Concerning How to Regulate

Carbon Dioxide and Other Green-

house Gases.

A mistaken belief in PSD ineluctability, founded

on a mistaken approach to statutory construction, has

denied the Agency the clarity of policy vision that

would enable it to see less structurally problematic

means of carbon regulation than PSD available under

the Act. More generally, it represents a form of implic-

it and fact and consequence-blind policy creation that

renders reasoned and constitutional government

illusory. Without basic considerations of context,

statutes themselves can become vehicles for render-

ing the separation of powers ineffectual, and the

process of legislative rulemaking becomes a matter of

chance more than reason.

Moreover, this is an error likely to affect future

questions concerning the Clean Air Act and carbon

regulation. Other questions about regulation of

greenhouse gases under the Clean Air Act that will

face the nation and likely reach this Court are direct-

ly affected. For instance, there is the question of

whether a “National Ambient Air Quality Standard”

(“NAAQS”) must be issued for GHGs — since the

relevant NAAQS provisions share some terms and

characteristics in which the Agency and the circuit

find an ineluctable mandate to impose PSD regula-

tion of carbon. In fact, this was the principal issue in

the briefing cited by the court below, in the denial of

the petition for rehearing, for the proposition that

because some of the consequences of stationary-

source regulation were briefed to the Court in Massa-

chusetts, the Court considered them in rendering its

decision. See Pet. App. 138. Petitioners respectfully

submit that this contention alone is a serious error

worthy of review. Vigorously contested (as these were)

assertions in briefings to the Supreme Court, involv-

ing matters the Court does not address, cannot be

taken by lower courts effectively to decide these

matters, upon which later cases turn.

C. The Court of Appeals Has Erected an

Erroneous “Timeliness” Bar in Cases

of This Type, Which Will Have the Ef-

fect of Denying Claimants a Reasona-

ble Opportunity to Seek Judicial

Review of Allegedly Unauthorized Ex-

pansions of the Scope of Regulatory

Statutes, Particularly Those Driven by

Changes in Science or Technology.

The lower court was correct that petitioners’

challenge was untimely” only if the court was correct

'° See ante p. 18 for a description of the timeliness issue.

that textual consequences and the associated legal

claims unique to the challenged greenhouse-gas

application of PSD do not matter. Because they do,

the court’s timeliness bar represents a very serious

error, destructive of timely, rational, and necessary

judicial review in one of the most important types of

administrative law cases that will come to the courts

in general and the D.C. Circuit in particular.

II. The Decision of the Court of Appeals

Conflicts with Important Decisions of

This Court.

A. This Case Represents a Fundamental-

ly Mistaken Approach to Statutory In-

terpretation in Cases Regarding One

of Our Complex, Multi-Part Regulato-

ry Statutes Considered in Contexts

Not Contemplated by the Enacting

Congress.

In FDA v. Brown & Williamson, this Court cau-

tioned against the pseudo-Chevron clarity produced

by the de-contextualized reliance on general statutory

definitions of jurisdictionally important terms:

In determining whether Congress has specif-

ically addressed the question at issue, a re-

viewing court should not confine itself to

examining a particular statutory provision in

isolation. The meaning — or ambiguity — of

certain words or phrases may only become

evident when placed in context. See Brown v.

Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity

is a creature not of definitional possibilities

but of statutory context.”) It is a “fundamen-

tal canon of statutory construction that the

words of a statute must be read in their con-

text and with a view to the overall statutory

scheme.” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 132-

33 (2000) (citing Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1959)).

An essential component of this is a “whole statute”

approach to interpretation, and Brown & Williamson

uses that very phrase, or an “overall scheme” variant,

more than half a dozen times. In addition to its clear

directives, Brown & Williamson offers a clear example

of the kind of analysis required. The Court delved

deeply into contested matters involving various and

complex provisions of the Food, Drug and Cosmetic

Act as they applied to the facts that distinguish

tobacco and cigarettes from other “drugs” or “drug

delivery devices” covered by the Act.

As fully reflected in Brown & Williamson, by

logic and precedent, statutory interpretation in

“implied delegation/unanticipated context” cases of

this type requires, inter alia, a three-element process:

(i) identification of the facts that differentiate the

context of application from the context of enactment;

(ii) identification of the relevant statutory provisions;

and (iii) consideration of the “textual consequences” of

applying one to the other. Moreover, the “whole

statute” approach requires consideration of optional

means of regulation under all of the available statutory

programs, and a consideration of which can best serve

the statute’s purposes, given the new context. In the

Petitioners’ view, correcting the lower court’s substan-

tial departure from the approach required in cases

such as this by this Court’s precedents is a funda-

mental reason for granting this petition.

Clearly, the lower court and the Agency have

failed to recognize the approach required. As indicat-

ed above, they instead applied a de-contextualized

“plain language” approach that ignored the differ-

ences between carbon dioxide and conventional

pollutants, the relevant provisions of the PSD part of

the statute, and the textual consequences of combin-

ing the two. It may be that the Agency and lower

court misunderstood Massachusetts, believing that

when this Court distinguished Brown & Williamson

for limited purposes, it also extinguished the core

interpretive principles it represents.

An example of a hypothetical “Interstate Com-

merce Act,” paralleling the example used by Judge

Kavanaugh involving “vehicles in the park” in his

dissent to the denial of rehearing en banc,” illus-

trates the basic mismatch between the approach to

“ Judge Kavanaugh uses a variation on the staple of

discussions of law and language involving the regulation of all

“vehicles” in the park. Pet. App. 149-51, fn. 3. In terms of our

basic point, the inappropriateness of an original broad interpre-

tation that included bicycles is indicated by a “later” provision

that requires reinforced gas tanks on all “park vehicles,” and,

further, that inappropriateness is clear only based upon

knowledge of how bicycles differ from trucks.

interpretation employed by the Agency and the lower

court and the nature of the question presented. That

is, it shows why it is that the searching inquiry

including facts and consequences of the type conduct-

ed by the Court in Brown & Williamson is essential to

avoid the kind of absurdity that this case represents.

As illustrated by Judge Kavanaugh’s example,

the question is: what happens in the “next case”?

What if the expanded definition — expanded beyond

the legislative process of induction that produced it —

does not make sense in a particular statutory context

involved? If the early case defining the jurisdictional-

ly important term did not address particular pro-

grams within the regulatory scheme in question,

what should happen when a subsequent case does?

The Court in Massachusetts held that the statu-

tory phrase “any air pollutant” was capacious and

flexible enough to encompass new developments. This

is in the same way a court might say, in another case

involving multi-part regulatory statutes, that, for

instance, “mode of interstate transportation” is flexi-

ble enough to include the Internet once it was devel-

oped.

This case is akin to the “Interstate Commerce

Act” hypothetical in the following way. Imagine that

the act, written for a different era, hypothetically

contains speed limits for its “modes of interstate

transportation” when they encounter populated areas

and intersections. If the statute is to be applied to the

Internet as a “mode of interstate transportation,” the

agency involved could not determine if the speed-

limit part of the statute properly applied to the new

context without considering the differences between

the Internet as a mode of interstate commerce and

trains or trucks and the difference those differences

might make when combined with the relevant textual

components of the program. If the statute used “55

miles per hour” to specify a reasonable speed, that

does not have the same meaning or import when

applied to the Internet, and, indeed, the further

consideration of the facts and context might lead one

to conclude that for purposes of this provision, at

least, the term “mode of interstate transportation”

does not include the Internet, no matter how capa-

cious and flexible the term’s definitional potential.

Underlying the importance of context in this

example is the limited usefulness of categories. Thus,

the fact that carbon dioxide can be considered an “air

pollutant” does not answer most of the important

questions about regulating it or whether the term can

be reasonably so read within any given statutory

program, just as “mode of interstate transportation”

may not, without more, answer such questions with

respect to the Internet.

There is a further reason that the question of

interpretive approach involved in this case merits a

grant of certiorari. The combination involved in this

case of a misperceived Chevron step-one command,

the PSD provisions, and carbon dioxide raise sub-

stantial constitutional concerns. These, in turn,

invoke the constitutional-question “avoidance” canon.

See, e.g., Crowell v. Bensen, 285 U.S. 22, 62 (1932)

(“When the validity of an act of the Congress is drawn

into question, and even if a serious doubt of constitu-

tionality is raised, it is a cardinal principle that this

Court will first ascertain whether a construction of

the statute is fairly possible by which the question

can be avoided.”); cf. Pet. App. 157 (dissent to denial

of reh. en banc, Kavanaugh, J.) (“ ... (T)he bedrock

underpinnings of our separation of powers are at

stake.”).

One example of the serious constitutional issues

involved concerns Article I powers, the Commerce

Clause and the Necessary and Proper clause. “As

Chief Justice Marshall wrote in McCulloch v. Mary-

land, even when the end is constitutional and legiti-

mate, the means must be ‘appropriate’ and ‘plainly

adapted’ to that end. ... Moreover, the means must

be ‘consistent with the letter and spirit of the consti-

tution.’” Gonzales v. Raich, 541 U.S. 1, 421 (2005)

(Scalia, J., concurring). In light of its inherent charac-

teristics, its ubiquity and abundance, its pervasive

presence in much of human productive activity, the

means by which carbon is regulated is every bit as

important as whether or not it is regulated at all.

Regulation of carbon is a lever by which the govern-

ment can control much of the private sector. In this

case, actual legislation by Congress has been hol-

lowed out and made a vehicle for a Trojan-horse

invasion of legislative prerogatives. Among other

things, the EPA’s approach has denied Congress the

opportunity to make any judgment about the necessity

and propriety of the PSD mechanism as a means of

regulating carbon under the Commerce Power. More-

over, the lower court and Agency’s conclusion that a

Chevron step-one obligation exists implies that Con-

gress would be a party to an absurd type of implied

delegation. Under it, the authority to regulate an

unforeseen problem is deemed delegated but Con-

gress commands that rules it created for another

context be applied whether or not they fit the new

situation and regardless of the availability of other

options.

The nature of the creation of PSD GHG regula-

tion denies citizens protections inherent in the nature

of representative government, under which there are

matters upon which Congress would not intrude in

command-and-control fashion even if it has the power

to do so. The concerns as to which tle interpretive

approach of the Agency and lower court is oblivious

are concerns that make PSD carbon regulation un-

thinkable to any American congress — and yet, it

exists.

B. The Mistaken Approach to Statutory

Interpretation Is Inextricably Linked

to a Misreading of this Court’s Deci-

sion in Massachusetts v. EPA.

The key to understanding the misuse of Massa-

chusetts by the Agency and lower court is the fact that

Massachusetts did not consider the PSD provisions,

and thus the Court was not conducting a “whole

statute” examination that considered the term “any

air pollutant” in the PSD statutory context. Even if

some urged the court to anticipate the quandary that

EPA has now created — a program that as EPA itself

says Congress would not recognize” — this Court,

instead, in Massachusetts clearly decided on a one-

step-at-a-time approach.

As Judge Kavanaugh put it in his dissent to the

denial of rehearing en banc, “(Massachusetts] did not

purport to say that every other use of the term ‘air

pollutant’ throughout the sprawling and multi-faceted

Clean Air Act necessarily includes greenhouse gases.

Each individual Clean Air Act program must be

considered in context.” Pet. App. 149. Or, as Judge

Brown put it in her dissent to denial, “But we need

not follow Massachusetts off the proverbial cliff and

apply its reasoning to the unique Title V and PSD

provisions not considered in that case.” Pet. App. 122.

Of the many other important ways in which

Massachusetts was misunderstood by the Agency and

lower court, one stands out: they treat the decision as

if it held that “any air pollutant” as defined in the Act

must be read to contain greenhouse gases, as opposed

to a reading that says it is sufficiently flexible and

capacious such that one cannot say that it cannot. In

other words, the Agency and the court mistakenly

read Massachusetts to say that inclusion, as a matter

of statutory definition, is mandatory and inflexible

" Tailoring Rule, 75 Fed. Reg. at 31,547.

and that the usage within the statute must be univo-

cal. That reading of the definition in question is not

linguistically supportable, since the definition turns

on a tautological use of the term “pollutant,” and the

associated reading of Massachusetts, for that addi-

tional reason, is incorrect. 42 U.S.C. § 7602(g) (2013).

C. The Mistaken Approach Likewise

Involves Misunderstanding and Mis-

use of Important Doctrines in Admin-

istrative Law, Particularly Chevron.

“Implied Delegation” and “Absurd

Consequences.”

If PSD carbon regulation is allowed to stand on

the Agency and lower court’s terms, a new Chevron

category will have been created, one that cannot

logically exist in an “unanticipated context” case. It

combines a Chevron step-one “clear” command, based

upon Congress having “directly addressed the precise

question at issue,” with a context Congress did not

consider.

Massachusetts is an implied delegation case. It

holds that the Clean Air Act, by the generality of its

key terms, particularly “air pollutant,” is flexible

enough, at least potentially, to allow the EPA to try to

address a problem that was neither contemplated by

the enacting Congress nor expressly delegated to the

Agency. It is nonsensical to view the terms of the

*’ Chevron, 467 U.S. at 843.

implied delegation involved as they are, effectively,

viewed by the Agency and the lower court: apply the

provisions of the PSD program to greenhouse gases

without an inquiry that includes the consequences of

doing so and thus without a basis for determining

whether it makes sense and whether there are better

ways available under the Act.

This case also manipulates the “absurd conse-

quences” doctrine to facilitate absurdity, not correct

it. The EPA promises a rolling rewrite of relevant

statutory provisions over the years, combined with

permitting streamlining, to get as close as possible to

regulating all of the left-out small facilities, under a

statute that used a 100/250-ton limit in order to

exclude them. Just as this case represents a misap-

prehension of what law is, it misunderstands what is

absurd and what is not. So oblivious is the Agency to

the effects of de-contextualization that in its approach

to absurdity, the Agency thinks it must honor Con-

gress’ abiding concern with the de-contextualized

numbers “100” and “250,” regardless of their meaning

within the statute and regardless of the consequenc-

es. It refuses to acknowledge that what is to be hon-

ored is the statute’s concern for small businesses, not

de-contextualized numbers.

CONCLUSION

For the aforementioned reasons, this petition for

a writ of certiorari should be granted.

Respectfully submitted.

RONALD TENPAS JOHN J. MCMACKIN, JR.

MORGAN LEWIS & BOCKIUS WILLIAMS & JENSEN, PLLC

1111 Pennsylvania Ave., NW 701 8th Street, NW, Suite 500

Washington, DC 20004 Washington, DC 20001

(202) 739-5435 (202) 659-8201

ymcmackin@wms-jen.com

Counsel of Record

Counsel for Petitioners

April 17, 2013

App. l

684 F.3d 102

United States Court of Appeals,

District of Columbia Circuit.

COALITION FOR RESPONSIBLE

REGULATION, INC., et al., Petitioners

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

State of Michigan, et al., Intervenors.

Coalition for Responsible Regulation, Inc., et al.,

Petitioners

Environmental Protection Agency, Respondent

American Frozen Food Institute, et al., Intervenors.

Coalition for Responsible Regulation, Inc., et al.,

Petitioners

Environmental Protection Agency, Respondent

Langboard, Inc. — MDF, et al., Intervenors.

American Chemistry Council, Petitioner

Environmental Protection Agency and

Lisa Perez Jackson, Administrator,

U.S. Environmental Protection Agency,

Respondents Chamber of Commerce of the

United States of America, et al., Intervenors.

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,

App. 2

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.

Argued Feb. 28 and 29, 2012.

Decided June 26, 2012.

On Petitions for Review of Final Actions of the Envi-

ronmental Protection Agency.

Attorneys and Law Firms

Patrick R. Day, Harry W. MacDougald, and Jeffrey

Bossert Clark argued the causes for Non-State Peti-

tioners and Supporting Intervenors. With them on

the briefs were John J. Burns, Attorney General,

Office of the Attorney General of the State of Alaska,

Steven E. Mulder, Chief Assistant Attorney General,

Peter Glaser, Mark E. Nagle, Matthew Dukes, Paul

D. Phillips, John A. Bryson, Ellen Steen, Eric Groten,

John P. Elwood, James A. Holtkamp, Chet M. Thompson,

Robin S. Conrad, Rachel L. Brand, Sheldon Gilbert,

Quentin Riegel, Jeffrey A. Rosen, Robert R. Gasaway,

William H. Burgess, Sam Kazman, Hans Bader,

App. 3

Matthew G. Paulson, Harry Moy Ng, Michele Marie

Schoeppe, Michael R. Barr, Alexandra M. Walsh,

Adam J. White, Jeffrey A. Lamken, Timothy K.

Webster, Roger R. Martella, Neal J. Cabral, Theodore

Hadzi-Antich, Ashley C. TDarrish, Cynthia A.M.

Stroman, Scott C. Oostdyk, Gordon R. Alphonso,

Shannon L. Goessling, Edward A. Kazmarek, F.

William Brownell, Norman W. Fichthorn, Henry V.

Nickel, and Allison D. Wood. Paul D. Clement, Mark

W. DeLaquil, Andrew M. Grossman, and David B.

Rivin, Jr. entered appearances.

E. Duncan Getchell, Jr., Solicitor General, Office of

the Attorney General for the Commonwealth of Vir-

ginia, argued the cause for State Petitioners Texas

and Virginia on Denial of Reconsideration of the

Endangerment Finding and State Petitioners and

Supporting Intervenors on Endangerment Finding Del-

egation Issues. With him on the briefs were Kenneth

T. Cuccinelli, II, Attorney General, Stephen R.

McCullough, Senior Appellate Counsel, Charles E.

James Jr., Chief Deputy Attorney General, and

Wesley G. Russell, Jr., Deputy Attorney General.

Greg Abbott, Attorney General, Office of the Attorney

General for the State of Texas, Bill Cobb, Deputy

Attorney General for Civil Litigation, J. Reed Clay,

Jr., Special Assistant and Senior Counsel to the

Attorney General, Jonathan F. Mitchell, Solicitor

General, Michael P. Murphy, Assistant Solicitor

General, Luther Strange III, Attorney General, Office

of the Attorney General for the State of Alabama,

Pamela Jo Bondi, Attorney General, Office of the

App. 4

Attorney General for the State of Florida, Gregory F.

Zoeller, Attorney General, Office of the Attorney

General for the State of Indiana, Jack Conway, Attor-

ney General, Office of the Attorney General for the

Commonwealth of Kentucky, James D. “Buddy”

Caldwell, Attorney General, Office of the Attorney

General for the State of Louisiana, Bill Schuette,

Attorney General, Office of the Attorney General for

the State of Michigan, John J. Bursch, Solicitor

General, Neil D. Gordon, Assistant Attorney General,

Gary C. Rikard, Jon Bruning, Attorney General,

Office of the Attorney General for the State of Ne-

braska, Katherine J. Spohn, Special Counsel to the

Attorney General, Wayne Stenehjem, Attorney Gen-

eral, Office of the Attorney General for the State of

North Dakota, Margaret Olson, Assistant Attorney

General, Scott Pruitt, Attorney General, Office of the

Attorney General for the State of Oklahoma, Alan

Wilson, Attorney General, Office of the Attorney

General for the State of South Carolina, Marty

Jackley, Attorney General, Office of the Attorney

General for the States [sic] of South Dakota, Roxanne

Giedd, Chief, Civil Litigation Division, Mark L.

Shurtleff, Attorney General, Office of the Attorney

General for the State of Utah, and Kenneth T.

Cuccinelli, Il, Attorney General, Office of the Attorney

General for the Commonwealth of Virginia were on

the briefs for State Petitioners and Supporting

Intervenors. Robert D. Tambling, Assistant Attorney

General, Office of the Attorney General for the State

of Alabama, entered an appearance.

App. 5

Christian J. Ward, Scott A. Keller, and April L. Farris

were on the brief for amici curiae Scientists in sup-

port of Petitioners.

Derek Schmidt, Attorney General, Office of the At-

torney General for the State of Kansas, and John

Campbell, Chief Deputy Attorney General, were on

the brief for amicus curiae State of Kansas in support

of Petitioners.

Martin R. Levin, Michael J. O’Neill, Donald M. Falk,

Mark S. Kaufman, Steven J. Lechner, and Richard P.

Hutchison were on the brief for amici curiae Land-

mark Legal Foundation, et al. in support of Peti-

tioners.

Jon M. Lipshultz and Angeline Purdy, Attorneys, U.S.

Department of Justice, argued the causes for re-

spondent. With them on the brief were John Hannon,

Carol Holmes, and Steven Silverman, U.S. Environ-

mental Protection Agency, Attorneys. Thomas A.

Lorenzen, Attorney, U.S. Department of Justice,

entered an appearance.

Carol Iancu, Assistant Attorney General, Office of the

Attorney General for the Commonwealth of Massa-

chusetts, argued the cause for State and Environ-

mental Intervenors in support of respondents. With

her on the briefs were Martha Coakley, Attorney

General, William L. Pardee, Attorney Assistant

General, Sean H. Donahue, Howard I. Fox, David S.

Baron, Megan Ceronsky, Vickie L. Patton, Peter

Zalzal, Kamala D. Harris, Attorney General, Office of

the Attorney General for the State of California,

App. 6

Kathleen A. Kenealy, Senior Assistant Attorney

General, Marc N. Melnick and Nicholas Stern, Dep-

uty Attorneys General, Joseph R. Biden, III, Attorney

General, Office of the Attorney General for the State

of Delaware, Valerie M. Satterfield, Deputy Attorney

General, George Jepsen, Attorney General, Office of

the Attorney General for the State of Connecticut,

Kimberly P. Massicotte, Matthew I. Levine, Scott N.

Koschwitz, Assistant Attorneys General, Lisa Madigan,

Attorney General, Office of the Attorney General for

the State of Illinois, Gerald T. Karr, Assistant Attor-

ney General, Thomas J. Miller, Attorney General,

Office of the Attorney General for the State of Iowa,

David R. Sheridan, Assistant Attorney General,

Douglas F. Gansler, Attorney General, Office of

the Attorney General for the State of Maryland, Mary

E. Raivel, Assistant Attorney General, Michael A.

Delaney, Attorney General, Office of the Attorney

General for the State of New Hampshire, K. Allen

Brooks, Senior Assistant Attorney General, William J.

Schneider, Attorney General, Office of the Attorney

General for the State of Maine, Gerald D. Reid,

Assistant Attorney General, Lori Swanson, Attorney

General, Office of the Attorney General for the State

of Minnesota, Jocelyn F. Olson, Assistant Attorney

General, Gary K. King, Attorney General, Office of

the Attorney General for the State of New Mexico,

Stephen R. Farris, Assistant Attorney General, Eric

T. Schneiderman, Attorney General, Office of the

Attorney General for the State of New York, Michael

J. Myers and Yueh-Ru Chu, Assistant Attorneys

General, John Kroger, Attorney General, Office of the

App. 7

Attorney General for the State of Oregon, Paul Logan,

Assistant Attorney-in-Charge, Robert M. McKenna,

Attorney General, Office of the Attorney General for

the State of Washington, Leslie R. Seffern, Assistant

Attorney General, Peter F. Kilmartin, Attorney

General, Office of the Attorney General for the State

of Rhode Island, Gregory S. Schultz, Special Assistant

Attorney General, William H. Sorrell, Attorney Gen-

eral, Office of the Attorney General for the State of

Vermont, Thea J. Schwartz, Assistant Attorney Gen-

eral, Christopher King, Assistant Corporation Coun-

sel, Corporation Counsel for the City Of New York,

Ann B. Weeks, Helen D. Silver, David Doniger,

Meleah Geertsma, Morgan Butler, Frank W. Rambo,

Joseph Mendelson II, Craig Holt Segall, and Joanne

Spalding.

Deborah Sivas, Douglas A. Ruley, Edward Lloyd, and

Susan J. Kraham were on the brief for amici curiae

America’s Great Waters Coalition, et al. in support of

respondent. James K. Thornton entered an appear-

ance.

Jonathan F. Mitchell, Solicitor General, Office of the

Attorney General for the State of Texas, argued the

cause for State Petitioners and Supporting Inter-

venor. With him on the briefs were Gregg Abbott,

Attorney General, Bill Cobb, Deputy Attorney Gen-

eral, J. Reed Clay, Jr., Special Assistant and Senior

Counsel to the Attorney General, Michael P. Murphy

and James P. Sullivan, Assistant Solicitors General,

Luther Strange, Attorney General, Office of the At-

torney General for the State of Alabama, Herman

App. 8

Robinson, Donald Trahan, Kathy M. Wright, Gary C.

Rikard, John Bruning, Attorney General, Office of

the Attorney General for the State of Nebraska,

Katherine J. Spohn, Special Counsel, Wayne

Stenehjem, Attorney General, Office of the Attorney

General for the State of North Dakota, Margaret

Olson, Assistant Attorney General, Alan Wilson,

Attorney General, Office of the Attorney General for

the State of South Carolina, J. Emory Smith, Jr.,

Assistant Deputy Attorney General, Marty Jackley,

Attorney General, Office of the Attorney General for

the State of South Dakota, Roxanne Giedd, Chief, and

Kenneth T. Cuccinelli, II, Attorney General, Office of

the Attorney General for the Commonwealth of

Virginia. Mark W. DeLaquil, Earle D. Getchelil, Jr.,

Assistant Attorney General, Office of the Attorney

General for the Commonwealth of Virginia, Andrew

M. Grossman, David B. Rivkin, Jr., and Robert D.

Tambling, Assistant Attorney General, Office of the

Attorney General for the State of Alabama, entered

appearances.

F. William Brownell and Peter Keisler argued the

causes for Non-State Petitioners and Supporting

Intervenors. With them on the briefs were Norman W.

Fichthorn, Henry V. Nickel, Allison D. Wood, Charles

H. Knauss, Shannon S. Broome, Timothy K. Webster,

Roger R. Martella, Eric Groten, Patrick R. Day, John

A. Bryson, Matthew G. Paulson, John P. Elwood, Paul

D. Phillips, James A. Holtkamp, Shannon L.

Goessling, Harry W. MacDougald, William H. Lewis,

Jr., Ronald J. Tenpas, Gordon R. Alphonso, Edward A.

App. 9

Kazmarek, Chet M. Thompson, Neal J. Cabral, Scott

C. Oostdyk, Richard P. Hutchison, John J. McMackin,

Jr., Robin S. Conrad, Sheldon Gilbert, Michael W.

Steinberg, Levi McAllister, Jeffrey A. Rosen, Robert

R. Gasaway, Jeffrey Bossert Clark, William H. Burgess,

Ashley C. Parrish, Cynthia A.M. Stroman, Ellen

Steen, Leslie Sue Ritts, Peter Glaser, Mark E. Nagle,

Terry J. Satterlee, Thomas J. Grever, Margaret

Claiborne Campbell, Bryon W. Kirkpatrick, Quentin

Riegel, Elizabeth Gaudio, Elizabeth Henry Warner,

Harry Moy Ng, Michele Marie Schoeppe, Thomas J.

Ward, and Peter H. Wyckoff. Mark A. Behrens, Paul

D. Clement, Matthew Dukes, Virginia L. Hudson, and

David B. Salmons entered appearances.

Jonathan S. Massey was on the brief for amicus

curiae Municipal Gas Commission of Missouri.

John G. Horne, Il, Samuel B. Boxerman and Leslie A.

Hulse were on the brief for amici curiae the Com-

monwealth of Kentucky and the American Chemistry

Council in support of petitioners. Angus Macbeth

entered an appearance.

Amanda Shafer Berman and Perry M. Rosen, At-

torneys, U.S. Department of Justice, argued the

causes for respondents. With them on the briefs were

Howard Hoffman, Elliott Zenick, Brian Doster, and

David Orlin, Counsel, U.S. Environmental Protection

Agency. Thomas A. Lorenzen and Kim N. Smaczniak,

Attorneys, U.S. Department of Justice, and John D.

Gunter, II and Michele L. Walter, Counsel, U-S.

App. 10

Environmental Protection Agency, entered appear-

ances.

Sean H. Donahue and Michael J. Myers argued the

causes for State and Environmental Intervenors

in support of respondents. With them on the briefs

were Vickie L. Patton, Pamela A. Campos, Megan

Ceronsky, Petere [sic] Zalzal, Eric T. Schneiderman,

Attorney General, Office of the Attorney General for

the State of New York, Barbara D. Underwood, Solici-

tor General, Morgan A. Costello, Assistant Attorney

General, Monica Wagner, Howard I. Fox, David S.

Baron, Lisa Madigan, Attorney General, Office of the

Attorney General for the State of Illinois, Gerald T.

Karr, Assistant Attorney General, Joanne Spalding,

Nathan Matthews, Craig Holt Segall, Kamala D.

Harris, Attorney General, Office of the Attorney

General for the State of California, Kathleen A.

Kenealy, Senior Assistant Attorney General, Susan

Durbin, Raissa Lerner, Marc N. Melnick, and Nicholas

Stern, Deputy Attorneys General, Martha Coakley,

Attorney General, Office of the Attorney General for

the Commonwealth of Massachusetts, William L.

Pardee and Carol Iancu, Assistant Attorneys Gen-

eral, David Doniger, Meleah Geertsma, William J.

Schneider, Attorney General, Office of the Attorney

General for the State of Maine, Gerald D. Ried,

Assistant Attorney General, Ann B. Weeks, Helen D.

Silver, Thomas J. Miller, Attorney General, Office of

the Attorney General for the State of Iowa, David R.

Sheridan, Assistant Attorney General, Douglas F.

Gansler, Attorney General, Office of the Attorney

App. 11

General for the State of Maryland, Mary Raivel,

Deputy Attorney General, Michael A. Delaney, Attor-

ney General, Office of the Attorney General for the

State of New Hampshire, K. Allen Brooks, Senior

Assistant Attorney General, Barbara Baird, William

B. Wong, Peter F. Kilmartin, Attorney General, Office

of the Attorney General for the State of Rhode Island,

Gregory S. Schultz, Special Assistant Attorney Gen-

eral, Frank Rambo, Morgan Butler, Gary K. King,

Attorney General, Office of the Attorney General for

the State of New Mexico, Stephen Farris, Assistant

Attorney General, John Kroger, Attorney General,

Office of the Attorney General for the State of Ore-

gon, Paul Logan, Assistant Attorney-in-Charge, Roy

Cooper, Attorney General, Office of the Attorney

General for the State of North Carolina, and J. Allen

Jernigan and Marc Bernstein, Special Deputy Attor-

neys General. Kenneth P. Alex and Gavin G. McCabe,

Deputy Assistant Attorneys General, Office of the

Attorney General for the State of California, entered

appearances.

Peter Glaser argued the cause for petitioners. With

him on the briefs were John P. Elwood, Eric Groten,

Patrick R. Day, John A. Bryson, Shannon L.

Goessling, Harry W. MacDougald, Paul D. Phillips,

James A. Holtkamp, Edward A. Kazmarek, Chet M.

Thompson, Sam Fazman, Hans Bader, Gordon R.

Alphonso, Richard P. Hutchison, Neal J. Cabral, Scott

C. Oostdyk, Ronald J. Tenpas, Michael W. Steinberg,

Levi McAllister, John J. McMackin Jr., Robin S.

Conrad, Rachel L. Brand, Sheldon Gilbert, F. William

App. 12

Brownell, Norman W. Fichthorn, Henry V. Nickel,

Allison D. Wood, Ashley C. Parrish, Cynthia A.M.

Stroman, Mark E. Nagle, Michael Higgins, Ellen

Steen, Timothy K. Webster, Roger R. Martella,

Matthew G. Paulson, Charles H. Knauss, Shannon S.

Broome, Quentin Riegel, Elizabeth Gaudio, Thomas

J. Ward, Harry Moy Ng, and Michele Marie Schoeppe.

Greg Abbott, Attorney General, Office of the Attorney

General for the State of Texas, Bill Cobb, Deputy

Attorney General for Civil Litigation, Jonathan F.

Mitchell, Solicitor General, J. Reed Clay Jr., Special

Assistant and Senior Counsel to the Attorney Gen-

eral, Michael P. Murphy, Assistant Solicitor General,

Luther Strange, Attorney General, Office of the At-

torney General for the State of Alabama, Samuel S.

Olens, Attorney General, Office of the Attorney Gen-

eral for the State of Georgia, John E. Hennelly, Senior

Assistant Attorney General, Gary C. Rikard, Jon C.

Bruning, Attorney General, Office of the Attorney

General for the State of Nebraska, Katherine J.

Spohn, Special Counsel to the Attorney General,

Wayne K. Stenehjem, Attorney General, Office of the

Attorney General for the State of North Dakota,

Margaret Olson, Assistant Attorney General, Alan

Wilson, Attorney General, Office of the Attorney

General for the State of South Carolina, J. Emory

Smith, Jr., Assistant Deputy Attorney General, Marty

Jackley, Attorney General, Office of the Attorney

General for the State of North Dakota, Roxanne

Giedd, Chief, Civil Litigation Division, and Kenneth

T. Cuccinelli, I], Attorney General, Office of the

App. 13

Attorney General for the Commonwealth of Virginia,

were on the briefs for State Petitioners and Support-

ing Intervenor. Paul D. Clement, James W. Coleman,

Wayne J. D’Angelo, Mark W. DeLaquil, E. Duncan

Getchell Jr., Solicitor General, Office of the Attorney

General for the Commonwealth of Virginia, Andrew

M. Grossman, Virginia L. Hudson, David B. Rivkin

Jr., and Robert D. Tambling, Assistant Attorney

General, Office of the Attorney General for the State

of Alabama, entered appearances.

Samuel B. Boxerman and Leslie A. Hulse were on the

brief for amicus curiae American Chemistry Council

in support of petitioners. Angus Macbeth entered an

appearance.

Eric G. Hostetler, Attorney, U.S. Department of Jus-

tice, argued the cause for respondents. With him on

the brief were John Hannon and Steven Silverman,

Attorneys, U.S. Environmental Protection Agency.

Raymond B. Ludwiszewski argued the cause for in-

tervenors Association of Global Automakers, et al.

With him on the brief were Kathleen M. Sullivan,

Sanford I. Weisburst, and William B. Adams.

Gavin G. McCabe, Deputy Attorney General, Office of

the Attorney General for the State of California,

argued the cause for intervenor State of California.

On the brief were Kamala D. Harris, Attorney Gen-

eral, Kathleen A. Kenealy, Senior Assistant Attorney

General, Marc N. Melnick and Nicholas Stern, Dep-

uty Attorneys General, Sean H. Donahue, Howard

I. Fox, David S. Baron, Pamela Campos, Megan

App. 14

Ceronsky, Vickie L. Patton, Peter Zalzal, Joseph R.

Biden, III, Attorney General, Office of the Attor-

ney General for the State of Delaware, Valerie M.

Satterfield, Deputy Attorney General, Thomas J.

Miller, Attorney General, Office of the Attorney

General for the State of Iowa, David R. Sheridan,

Assistant Attorney General, Douglas F. Gansler,

Attorney General, Office of the Attorney General for

the State of Maryland, Roberta R. James, Assistant

Attorney General, Lisa Madigan, Attorney General,

Office of the Attorney General for the State of Illinois,

Gerald T. Karr, Assistant Attorney General, William

T. Schneider, Attorney General, Office of the Attorney

General for the State of Maine, Gerald D. Reid,

Assistant Attorney General, Martha Coakley, Attor-

ney General, Office of the Attorney General for the

Commonwealth of Massachusetts, Carol Iancu, Tracy

Triplett, and William L. Pardee, Assistant Attorneys

General, Gary K. King, Attorney General, Office of

the Attorney General for the State of New Mexico,

Stephen R. Farris, Assistant Attorney General, John

Kroger, Attorney General, Office of the Attorney

General for the State of Oregon, Paul Logan, Assis-

tant Attorney-in-Charge, William H. Sorrell, Attorney

General, Office of the Attorney General for the State

of Vermont, Thea J. Schwartz, Assistant Attorney

General, Eric T. Schneiderman, Attorney General,

Office of the Attorney General for the State of New

York, Michael J. Myers and Yueh-Ru Chu, Assistant

Attorneys General, Peter F. Kilmartin, Attorney

General, Office of the Attorney General for the State

of Rhode Island, Gregory S. Schultz, Special Assistant

App. 15

Attorney General, Robert M. McKenna, Attorney

General, Office of the Attorney General for the State

of Washington, Leslie R. Seffern, Assistant Attorney

General, Christopher King, Assistant Corporation

Counsel, Corporation Counsel] for the City of New

York, Joanne Spalding, Craig Holt Segall, David

Doniger and Meleah Geertsma. Judith A. Stahl

Moore, Assistant Attorney General, Office of the

Attorney General for the State of New Mexico, and

John D. Walke entered appearances.

Richard E. Ayres, Jessica L. Olson, and Kristin L.

Hines were on the brief for amicus curiae Honeywell

International, Inc. in support of respondents.

Richard L. Revesz, Michael A. Livermore, and

Jennifer S. Rosenberg were on the brief for ami-

cus curiae Institute for Policy Integrity at New

York University School of Law in support of respon-

dents.

Timothy K. Webster, Roger R. Martella, Jr., James W.

Coleman, William H. Lewis, Jr., Ronald J. Tenpas,

Charles H. Knauss, Shannon S. Broome, Bryan M.

Killian, and Matthew G. Paulson were on the briefs

for petitioners. Peter D. Keisler, Leslie A. Hulse, and

Quentin Riegel entered appearances.

Amanda Shafer Berman and Perry M. Rosen, Attor-

neys, U.S. Department of Justice, and Elliott Zenick

and Howard J. Hoffman, Counsel, U.S. Environ-

mental Protection Agency, were on the brief for re-

spondents. Jon M. Lipshultz, Senior Counsel, U.S.

Department of Justice, entered and [sic] appearance.

App. 16

Ann Brewster Weeks, Sean H. Donahue, Vickie

Patton, Peter Zalzal, Joanne Spalding, Craig Segall,

David Doniger, and Meleah Geertsma were on the

brief of intervenors in support of respondents. David

S. Baron, Pamela A. Campos, Colin C. O’Brien, and

John D. Walke entered appearances.

Vera P. Pardee, Brendan R. Cummings, and Kevin P.

Bundy were on the brief for amicus curiae Center for

Biological Diversity in support of respondents.

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 Mas-

sachusetts 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 greenhouse

gas-related rules. First, EPA issued an Endanger-

ment 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

App. 17

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 Find-

ing and Tailpipe Rule are neither arbitrary nor capri-

cious; 2) EPA’s interpretation of the governing CAA

provisions is unambiguously correct; and 3) no peti-

tioner has standing to challenge the Timing and

Tailoring Rules. We thus dismiss for lack of jurisdic-

tion all petitions for review of the Timing and Tailor-

ing Rules, and deny the remainder of the petitions.

We begin with a brief primer on greenhouse

gases. As their name suggests, when released into the

atmosphere, these gases act “like the ceiling of a

greenhouse, trapping solar energy and retarding the

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

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

human activities result in greenhouse gas emissions;

cars, power plants, and industrial sites all release

significant amounts of these heat-trapping gases.

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

temperatures has coincided with a _ significant

App. 18

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 regu-

lated as an “air pollutant” under the Clean Air Act

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

the contention — then advanced by EPA — that

“greenhouse gases cannot be ‘air pollutants’ within

the meaning of the Act,” id. at 513, 127 S.Ct. 1438,

the Court held that the CAA’s definition of “air pollu-

tant” “embraces all airborne compounds of whatever

stripe.” Id. at 529, 127 S.Ct. 1438 (emphasis added).

Moreover, because the CAA requires EPA to establish

motor-vehicle emission standards for “any air pollu-

tant ... 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 contrib-

ute to climate change or if it provides some reason-

able explanation as to why it cannot or will not

App. 19

exercise it 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

greenhouse 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 pol-

lutant” an “aggregate 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 ox-

ide, hydrofluorocarbons, perfluorocarbons, and sulfur

hexafluoride. Jd. 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.” Jd. 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 con-

cluded that motor-vehicle emissions of these six well-

mixed gases “contribute to the total greenhouse gas

App. 20

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-vehiclé emission standards

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

anticipated to endanger public health or welfare,” 42

U.S.C. §7521(aX1), the agency promulgated its

Tailpipe Rule for greenhouse gases. Light-Duty Vehi-

cle Greenhouse Gas Emission Standards and Corpo-

rate Average Fuel Economy Standards; Final Rule

(“Tailpipe Rule”), 75 Fed. Reg. 25,324 (May 7, 2010).

Effective January 2, 2011, the Tailpipe Rule set

greenhouse gas emission standards for cars and light

trucks as part of a joint rulemaking with fuel econ-

omy standards issued by the National Highway

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

Under EPA’s longstanding interpretation of the

CAA, the Tailpipe Rule automatically triggered reg-

ulation of stationary greenhouse gas emitters under

two separate sections of the Act. The first, the Pre-

vention of Significant Deterioration of Air Quality

(PSD) program, requires state-issued construction

permits for certain types of stationary sources — for

eyample, 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; 7479(1). All

other stationary sources are subject to PSD permit-

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

“any air pollutant.” Jd. § 7479(1). The second provi-

sion, Title V, requires state-issued operating permits

App. 21

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

pollutant that is regulated under the CAA. See

Requirements for Preparation, Adoption, and Submit-

tal of Implementation Plans; Approval and Promulga-

tion of Implementation Plans (“1980 Implementation

Plan Requirements”), 45 Fed. Reg. 52,676, 52,711

(Aug. 7, 1980) (PSD program); Prevention of Signifi-

cant Deterioration and Title V Greenhouse Gas Tailor-

ing Rule (“Tailoring Rule”), 75 Fed. Reg. 31,514,

31,553-54 (June 3, 2010) (discussing history of Title V

regulation and applicability). And once the Tailpipe

Rule set motor-vehicle emission standards for green-

house gases, they became a regulated pollutant under

the Act, requiring PSD and Title V greenhouse per-

mitting.

Acting pursuant to this longstanding interpreta-

tion 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 re-

quiring control of that pollutant takes effect. Recon-

sideration of Interpretation of Regulations That

Determine Pollutants Covered by Clean Air Act Per-

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

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

major stationary emitters of greenhouse gases would

App. 22

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 predict-

ed, result in tremendous costs to industry and state

permitting authorities. See id. As a result, EPA

announced that it was “relieving overwhelming

permitting 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. /d. 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. Jd. at 31,523.)

App. 23

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 the 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)(9)(A)).

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

explains 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

App. 24

may timely challenge EPA’s !ongstanding 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-

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

Part VI explains why petitioners lack standing to

challenge the Timing and Tailoring Rules themselves.

Finally, Part VII disposes of several arguments that

have nothing to do with the rules under review, and

thus are not properly before us.

IT.

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 cimate change.” Massachusetts v. EPA, 549 U.S. 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

App. 25

chang “roblem, which is reasonably anticipated to

endan,,: : 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(aX1), 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

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 Advisory

Board before issuing the Endangerment Finding; and

(6) EPA’s denial of all petitions for reconsideration of

the Endangerment Finding. We ultimately conclude

that the Endangerment Finding is consistent with

Massachusetts v. EPA and the text and structure of

the CAA, and is adequately supported by the admin-

istrative record.

Industry Petitioners contend that EPA improp-

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

Endangerment Finding to a science-based judgment

devoid of considerations of policy concerns and regu-

latory consequences. They assert that CAA § 202(a)(1)

requires EPA to consider, e.g., the benefits of activ-

ities that require greenhouse gas emissions, the

effectiveness of emissions regulation triggered by the

Endangerment Finding, and the potential for societal

App. 26

adaptation to or mitigation of climate change. They

maintain that eschewing those considerations also

made the Endangerment Finding arbitrary and

capricious.

Th se 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 provi-

sions of this section, standards applicable to

the emission of any air pollutant from any

class or classes of new motor vebicles or new

motor vehicle engines, which in his judgment

cause, or contribute to, air pollution which

may reasonably be anticipated to endanger

public health or welfare.

42 U.S.C. § 7521(aX1). This language requires that

the endangerment evaluation “relate to whether an

air pollutant ‘cause[s], or contribute[s] to, air pollu-

tion which may reasonably be anticipated to en-

danger 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.

App. 27

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 effec-

tive response to the threat of global warm-

ing, 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, piece-

meal approach to address the climate change

issue.”

Id. at 533, 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.” Jd. at 533-34, 127 S.Ct.

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

tions contained “no reasoned explanation for [EPA's]

refusal to decide” the key part of the endangerment

inquiry: “whether greenhouse gases cause or contrib-

ute to climate change.” Id. at 534, 127 S.Ct. 1438.

App. 28

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.g., 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 follow-

ing § 202(a)(1), § 202(aX2), requires that EPA address

limited questions about the cost of compliance with

new emission standards and the availability of tech-

nology for meeting those standards, see infra Part III,

but these judgments are not part of the § 202(a\(1)

endangerment inquiry. The Supreme Court made

clear in Massachusetts v. EPA that it was not ad-

dressing the question “whether policy concerns can

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

App. 29

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.” Jd. 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 be-

cause 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 vol-

umes than other air pollutants, hundreds of thou-

sands 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 intent that the

requirements apply only to large industrial sources.

Petitioners assert that even EPA believed such over-

broad 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.

App. 30

However “absurd” Petitioners consider this con-

sequence, though, it is still irrelevant to the endan-

germent 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(a)(1) of that Act does not leave

room for EPA to consider as part of the endangerment

inquiry the stationary-source regulation triggered by

an endangerment finding, even if the degree of regu-

lation triggered might at a later stage be character-

ized as “absurd.”

State and Industry Petitioners next challenge the

adequacy of the scientific record underlying the

Endangerment Finding, objecting to both the type of

evidence upon which EPA relied and EPA’s decision to

make an Endangerment Finding in light of what

Industry Petitioners view as significant scientific

uncertainty. Neither objection has merit.

As an initial matter, State and Industry Petition-

ers question EPA's reliance on “major assessments”

addressing greenhouse gases and climate change

App. 31

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

and drew “overarching conclusions” about the state of

the science 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.” Jd. 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

App. 32

science-based judgment: it sought out and reviewed

existing scientific evidence to determine whether a

particular finding was warranted. It makes no dif-

ference that much of the scientific evidence 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 con-

siderations involved to determine whether the evi-

dence warranted an endangerment finding for

greenhouse gases as it was required to do under the

Supreme Court’s mandate in Massachusetts v. EPA.

App. 33

Industry Petitioners also assert that the scien-

tific evidence does not adequately support the En-

dangerment 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

decisions, we will presume the validity of agency

action 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 in-

creased 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

App. 34

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

cal 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. Endangerment

Finding, Response to Comments (RTC) Vol. 3, at 20.

Other evidence supports EPA’s conclusion that the

observed warming pattern — warming of the bottom-

most layer of the atmosphere and cooling immedi-

ately above it — is consistent with greenhouse-gas

causation. /d.

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 assetion 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 En-

dangerment Finding (TSD), at 31. These studies also

show, albeit with significant uncertainty, that tem-

peratures 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 cli-

mate-model simulations. Scientists have used global

App. 35

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 warm-

ing by including anthropogenic emissions of green-

house 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 evi-

dence of current and future effects of this warming on

public health and welfare. Relying again upon sub-

stantial scientific evidence, EPA determined that

anthropogenically induced climate change threatens

both public health and public welfare. It found that

extreme weather events, changes in air quality,

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 endangers

human welfare by creating risk to food production

and agriculture, forestry, energy, infrastructure,

ecosystems, and wildlife. Substantial evidence further

supported EPA's conclusion that the warming result-

ing 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 in-

crease in sea level. Id. at 66,498. Finally, EPA deter-

mined from substantial evidence that motor-vehicle

emissions of greenhouse gases contribute to climate

App. 36

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 invali-

dation 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.”

Id. 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 stan-

dards if it determines that the air pollution at issue

“may reasonably be anticipated to endanger public

health or welfare.” 42 U.S.C. § 7521(aX1). This lan-

guage 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

App. 37

health or welfare before regulating greenhouse gases

would effectively prevent EPA from doing the job

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

standards to prevent reasonably anticipated endan-

germent from maturing into concrete harm. Cf. id.

(“[Rjequiring EPA to wait until it can conclusively

demonstrate that a particular effect is adverse to

health before it acts is inconsistent with both the

[CAA]’s precautionary and preventive orientation

and the nature of the Administrator’s statutory

responsibilities. Congress provided that the Adminis-

trator is to use his judgment in setting air quality

standards precisely to permit him to act in the face of

uncertainty.”).

In Massachusetts v. EPA the Supreme Court

confirmed that EPA may make an endangerment

finding despite lingering scientific uncertainty. In-

deed, the Court held that the existence of “some

residual uncertainty” did not excuse EPA’s decision to

decline to regulate greenhouse gases. Massachusetts

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

regulating emissions of greenhouse gases, EPA would

need to show “scientific uncertainty ... so profound

that it precludes EPA from making a reasoned judg-

ment as to whether greenhouse gases contribute to

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

endangerment finding even while the scientific record

still contains at least “some residual uncertainty.”

Industry Petitioners have shown no more than that.

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

the scientific evidence before EPA and reach our own

App. 38

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

of administrative proceedings, we do not determine

the convincing force of evidence, nor the conclusion it

should support, but only whether the conclusion

reached by EPA is supported by substantial evidence

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

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

EPA evaluates scientific evidence in its bailiwick, we

ask only that it take the scientific record into account

“in a rational manner.” Am. Petroleum Inst. v. Costle,

665 F.2d 1176, 1187 (D.C.Cir.1981). Industry Peti-

tioners have not shown that EPA failed to do so here.

State Petitioners, here led by Texas, contend that

the Endangerment Finding is arbitrary and capri-

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

“quantify” either the atmospheric concentration at

which greenhouse gases endanger public health or

welfare, the rate or type of climate change that it

anticipates will endanger public health or welfare, or

the risks or impacts of climate change. According to

Texas, without defining these thresholds and distin-

guishing “safe” climate change from climate change

that endangers, EPA’s Endangerment Finding is just

a “subjective conviction.”

It is true that EPA did not provide a quantitative

threshold at which greenhouse gases or climate

change will endanger or cause certain impacts to

public health or welfare. The text of CAA § 202(a\1)

App. 39

does not require that EPA set a precise numerical

value as part of an endangerment finding. Quite the

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

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

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

of harm, but rather is composed of reciprocal ele-

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

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

mum threshold of risk or harm before determining

whether an air pollutant endangers. It may base an

endangerment finding on “a lesser risk of greater

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

combination in between. Jd.

Ethyl is instructive. There, EPA made an endan-

germent finding for airborne lead. During its endan-

germent inquiry, EPA initially tried to do what Texas

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

pollutant below which it would be considered “safe”

and above which it would endanger public health. Jd.

at 56. However, EPA abandoned that approach be-

cause it failed to account for “the wide variability of

dietary lead intake” and lacked predictive value. EPA

substituted a “more qualitative” approach, which

relied on “predictions based on uncertain data” along

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

the endangerment finding that used that qualitative

approach despite the lack of a specific endangerment

“threshold.”

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

endangerment is no more than a specialized version

of Industry Petitioners’ claim that the scientific

App. 40

record contains too much uncertainty to find endan-

germent. EPA relied on a substantial record of empir-

ical data and scientific evidence, making many

specific and often quantitative findings regarding the

impacts of greenhouse gases on climate change and

the effects of climate change on public health and

welfare. Its failure to distill this ocean of evidence

into a specific number at which greenhouse gases

cause “dangerous” climate change is a function of the

precautionary thrust of the CAA and the multivariate

and sometimes uncertain nature of climate science,

not a sign of arbitrary or capricious decision-making.

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

pollutant” that are the subject of the Endangerment

Finding as an aggregate of six greenhouse gases,

which EPA called “well mixed greenhouse gases”:

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

(N,O), hydrofluorocarbons (HFCs), perfluorocarbons

(PFCs), and sulfur hexafluoride (SF,). Industry Peti-

tioners argue that EPA’s decision to include PFCs and

SF, in this group of greenhouse gases was arbitrary

and capricious primarily because motor vehicles gen-

erally do not emit these two gases.

No petitioner for review of the Endangerment

Finding has established standing to make this

argument. Industry Petitioners concede that EPA’s

decision to regulate PFCs and SF, along with the

other four greenhouse gases does not injure any

App. 41

motor-vehicle-related petitioner. Nor has any non-

motor-vehicle-related petitioner shown an injury-in-

fact resulting from EPA’s inclusion of these two gases

in the six-gas amalgam of “well-mixed greenhouse

gases.” At oral argument, Industry Petitioners asserted

for the first time that certain utility companies —

members of associations that petitioned for review of

the Endangerment Finding — own utility transform-

ers that emit SF,. However, they never demonstrated

or even definitively asserted that any of these compa-

nies would not be subject to regulation or permitting

requirements but for EPA’s decision to include SF, as

part of the “well-mixed greenhouse gases” that are

the subject of the Endangerment Finding. See Sierra

Club v. EPA, 292 F.3d 895, 898-900 (D.C.Cir.2002)

(requiring that a petitioner seeking review of agency

action demonstrate standing by affidavit or other

evidence if standing is not “self-evident” from the

administrative record). Absent a petitioner with

standing to challenge EPA’s inclusion of PFCs and

SF, in the “air pollution” at issue, this court lacks

jurisdiction to address the merits of Industry Peti-

tioners’ contention.

EPA did not submit the Endangerment Finding

for review by its Science Advisory Board (SAB).

Industry Petitioners claim that EPA’s failure to do so

violates its mandate to “make available” to the SAB

“any proposed criteria document, standard, limita-

tion, or regulation under the Clean Air Act” at the

App. 42

time it provides the same “to any other Federal

agency for formal review and comment.” 42 U.S.C.

§ 4365(cX1); see Am. Petroleum Inst., 665 F.2d at

1188.

To begin with, it is not clear that EPA provided

the Endangerment Finding “to any other Federal

agency for formal review and comment,” which trig-

gers this duty to submit a regulation to the SAB. EPA

only submitted a draft of the Endangerment Finding

to the Office of Information and Regulatory Affairs

pursuant to Executive Order 12,866. EPA contends

that this was merely an informal review process,

not “formal review and comment” — at least when

compared with a statutory review-and-comment

requirement in which other agencies are given the

opportunity to provide written comments about the

impacts of a proposed regulation on the reviewing

agency’s universe of responsibility. See, e.g., 49 U.S.C.

§ 32902(j). Industry Petitioners failed to respond to

this contention.

In any event, even if EPA violated its mandate by

failing to submit the Endangerment Finding to the

SAB, Industry Petitioners have not shown that this

error was “of such central relevance to the rule that

there is a substantial likelihood that the rule would

have been significantly changed if such errors had not

been made.” 42 U.S.C. § 7607(dx8); see Am. Petro-

leum Inst., 665 F.2d at 1188-89 (applying this stan-

dard to EPA’s failure to submit an ozone standard to

the SAB).

App. 43

Lastly, State Petitioners maintain that EPA erred

by denying all ten petitions for reconsideration of the

Endangerment Finding. Those petitions asserted that

internal e-mails and documents released from the

University of East Anglia’s Climate Research Unit

(CRU) — a contributor to one of the global tempera-

ture records and to the IPCC’s assessment report —

undermined the scientific evidence supporting the

Endangerment Finding by calling into question

whether the IPCC scientists adhered to “best science

practices.” EPA’s Denial of the Petitions To Reconsider

the Endangerment and Cause or Contribute Findings

for Greenhouse Gases Under Section 202(a) of the

Clean Air Act (“Reconsideration Denial”), 75 Fed.

Reg. 49,556, 49,556-57 (Aug. 13, 2010). The petitions

pointed to factual mistakes in the IPCC’s assessment

report resulting from the use of non-peer-reviewed

studies and several scientific studies postdating the

Endangerment Finding as evidence that the Endan-

germent Finding was flawed. Jd.

On August 13, 2010, EPA issued a denial of the

petitions for reconsideration accompanied by a 360-

page response to petitions (RTP). Id. at 49,556. It

determined that the petitions did not provide sub-

stantial support for the argument that the Endan-

germent Finding should be revised. According to EPA,

the petitioners’ claims based on the CRU documents

were exaggerated, contradicted by other evidence,

and not a material or reliable basis for questioning

the credibility of the body of science at issue; two of

App. 44

the factual inaccuracies alleged in the petitions were

in fact mistakes, but both were “tangential and

minor” and did not change the key IPCC conclusions;

and the new scientific studies raised by some peti-

tions were either already considered by EPA, misin-

terpreted or misrepresented by petitioners, or put

forth without acknowledging other new studies. Jd. at

49,557-58.

EPA is required to convene a proceeding for

reconsideration of a rule if a party raising an objec-

tion to the rule

can demonstrate to the Administrator that it

was impracticable to raise such objection

within such time or if the grounds for such

objection arose after the period for public

comment (but within the time specified for

judicial review) and if such objection is of

central relevance to the outcome of the rule.

42 U.S.C. § 7607(dX7)(B). For the purpose of deter-

mining whether to commence reconsideration of a

rule, EPA considers an objection to be of “central

relevance to the outcome” of that rule “if it provides

substantial support for the argument that the regula-

tion should be revised.” Reconsideration Denial, 75

Fed. Reg. at 49,561.

State Petitioners have not provided substantial

support for their argument that the Endangerment

Finding should be revised. State Petitioners point out

App. 45

that some studies the IPCC referenced in its assess-

ment were not peer-reviewed, but they ignore the fact

that (1) the IPCC assessment relied on around 18,000

studies that were peer-reviewed, and (2) the IPCC’s

report development procedures expressly permitted

the inclusion in the assessment of some non-peer-

reviewed studies (“gray” literature).

Moreover, as EPA determined, the limited inac-

curate information developed from the gray literature

does not appear sufficient to undermine the substan-

tial overall evidentiary support for the Endangerment

Finding. State Petitioners have not, as they assert,

uncovered a “pattern” of flawed science. Only two of

the errors they point out seem to be errors at all, and

EPA relied on neither in making the Endangerment

Finding. First, as State Petitioners assert, the IPCC

misstated the percentage of the Netherlands that is

below sea level, a statistic that was used for back-

ground information. However, the IPCC corrected the

error, and EPA concluded that the error was “minor

and had no impact,” and the Endangerment Finding

did not refer to the statistic in any way. Jd. at 49,576-

77. Second, the IPCC acknowledged misstating the

rate at which Himalayan glaciers are receding. EPA

also did not rely on that projection in the Endanger-

ment Finding. Jd. at 49,577.

State Petitioners also contend that a new study

contradicts EPA’s reliance on a projection of more

violent storms in the future as a result of climate

change, but the study they cite only concerns past

trends, not projected future storms. The record shows

App. 46

that EPA considered the new studies on storm trends

and concluded that the studies were consistent with

the Endangerment Finding. In sum, State Petitioners

have failed to show that these isolated “errors” pro-

vide substantial support for their argument to over-

turn the Endangerment Finding.

State Petitioners’ further argument that EPA

erred in denying reconsideration fails as well. These

Petitioners claim EPA erred by failing to provide

notice and comment before denying the petitions for

reconsideration because EPA’s inclusion of a 360-page

RTP amounted to a revision of the Endangerment

Finding, and revision of a rule requires notice and

comment. The RTP, however, appears to be exactly

what EPA called it — a response to the petitions for

reconsideration, not a revision of the Endangerment

Finding itself. EPA certainly may deny petitions for

reconsideration of a rule and provide an explanation

for that denial, including by providing support for

that decision, without triggering a new round of

notice and comment for the rule.

Ii.

State and Industry Petitioners contend that in

promulgating the Tailpipe Rule, EPA relied on an

improper interpretation of CAA § 202(a\(1), and was

arbitrary and capricious in failing to justify and

consider the cost impacts of its conclusion that the

App. 47

Rule triggers stationary-source regulation under the

PSD and Title V provisions. They do not challenge

the substantive standards of the Rule and focus

principally on EPA’s failure to consider the cost of

stationary-source permitting requirements triggered

by the Rule. Positing an absurd-consequences sce-

nario, Petitioners maintain that if EPA had con-

sidered these costs it “would have been forced” to

exclude carbon dioxide from the scope of the emission

standards, to decline to issue greenhouse gas emis-

sion standards at all, or “to interpret the statute so as

not to automatically trigger stationary source regula-

tion.” Industry Tailpipe Br. 17; see also Industry

Tailpipe Reply Br. 8-9. Both the plain text of Section

202(a) and precedent refute Petitioners’ contentions.

Section 202(a)1) provides:

The Administrator shall by regulation pre-

scribe ... standards applicable to the emis-

sion of any air pollutant from any class or

classes of new motor vehicles or new motor

vehicle engines, which in his judgment

cause, or contribute to, air pollution which

may reasonably be anticipated to endanger

public health or welfare.

42 U.S.C. § 7521(aX1). By employing the verb “shall,”

Congress vested a non-discretionary duty in EPA.

See Sierra Club v. Jackson, 648 F.3d 848, 856

(D.C.Cir.2011). The plain text of Section 202(a)(1)

thus refutes Industry Petitioners’ contention that

App. 48

EPA had discretion to defer issuance of motor-vehicle

emission standards on the basis of stationary-source

costs. Neither the adjacent text nor the statutory

context otherwise condition this clear “language of

command,” id. (citation omitted). Having made the

Endangerment Finding pursuant to CAA § 202(a), 42

U.S.C. §7521(a), EPA lacked discretion to defer

promulgation of the Tailpipe Rule on the basis of its

trigger of stationary-source permitting requirements

under the PSD program and Title V.

The Supreme Court’s decision in Massachusetts v.

EPA compels this interpretation of Section 202(a)1).

“If EPA makes a finding of endangerment, the Clean

Air Act requires the [algency to regulate emissions of

the deleterious pollutant from new motor vehicles.”

549 U.S. at 533, 127 S.Ct. 1438. “Under the clear

terms of the Clean Air Act, EPA can avoid taking

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.” Jd. (emphasis added). In the En-

dangerment Finding, EPA determined that motor-

vehicle emissions contribute to greenhouse gas

emissions that, in turn, endanger the public health

and welfare; the agency therefore was in no position

to “avoid taking further action,” id., by deferring

promulgation of the Tailpipe Rule. Given the non-

discretionary duty in Section 202(aX1) and the

limited flexibility available under Section 202(a 2),

App. 49

which this court has held relates only to the motor-

vehicle industry, see infra Part III.C, EPA had no

statutory basis on which it could “ground [any] rea-

sons for” further inaction, Massachusetts v. EPA, 549

U.S. at 535, 127 S.Ct. 1438.

The plain text of Section 202(aX1) also negates

Industry Petitioners’ contention that EPA had discre-

tion to defer the Tailpipe Rule on the basis of

NHTSA’s authority to regulate fuel economy. The

Supreme Court dismissed a near-identical argument

in Massachusetts v. EPA, rejecting the suggestion that

EPA could decline to regulate carbon-dioxide emis-

sions because the Department of Transportation (DOT)

had independent authority to set fuel-efficiency stan-

dards. Id. at 531-32, 127 S.Ct. 1438. “[T]hat DOT sets

mileage standards in no way licenses EPA to shirk its

environmental responsibilities,” because EPA’s duty

to promulgate emission standards derives from “a

statutory obligation wholly independent of DOT's

mandate to promote energy efficiency.” Id. at 532, 127

S.Ct. 1438. Just as EPA lacks authority to refuse to

regulate on the grounds of NHTSA’s regulatory au-

thority, EPA cannot defer regulation on that basis. A

comparison of the relevant statutes bolsters this

conclusion. Compare 49 U.S.C. § 32902(f) (“When

deciding maximum feasible average fuel economy

... , the Secretary of Transportation shall consider

. the effect of other motor vehicle standards of

the Government on fuel economy....”), with 42

U.S.C. § 7521(a) (including no such direction): Nor,

applying the same reasoning, was EPA required t

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