Record and brief — Se. Legal Found., Inc. v. Envtl. Prot. Agency
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) SUPREME COURT
OF THE UNITED STATES
No. 12-1268
Vide 12-1146, 12-
1248, 12-1254,
12-1269, 12-1272
Title: Southeastern Legal Foundation, Inc., et al., Petitioners
V
Environmental Protection Agency, et al.
Docketed: Apni 23, 2013
Linked with 12A881
Lower Ct United States Court of Appeals for the District of Columbia Circuit
Case Nos.: (09-1322, et al.)
Decision Date. June 26, 2012
Rehearing
Denied: December 20, 2012
Questions
Presented
~~~Date~~~ ~~~~~~~Proceedings and Orders~~
Mar 72013 Application (12A881) 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 12 2013 Application (12A881) granted by The Chief Justice extending the time to file
until April 19, 2013.
Apr 19 2013 Petition for a writ of certioran filed. (Response due May 23, 2013)
May 8 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of
neither party, received from counsel for Texas, and eight other states.
May 13 2013 Consent to the filing of amicus curiae bnefs, 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 bnefs, in support of either party or of
neither party, received from counsel for the Federal Respondent.
May 14 2013 Letter of respondent National Environmental Development Association's Clean
Air Project in support of the petitioner received.
May 16 2013 Order further 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.
May 22 2013 Brief amicus curiae of Landmark Legal Foundation filed.
May 23 2013 Bref amici curiae of Scientists filed VIDED.
May 23 2013 Bnef amicus curiae of Committee for a Constructive Tomorrow filed.
Jun 6 2013
Jun 7 2013
Jun 7 2013
Jul 12013
Jul 8 2013
Jul 22 2013
Jul 22 2013
Jul 22 2013
Aug 6 2013
Aug 7 2013
Oct 7 2013
Oct 15 2013
Oct 22 2013
Oct 24 2013
Oct 29 2013
Nov 1 2013
Nov 1 2013
Nov 1 2013
Nov 1 2013
Nov 7 2013
Nov 8 2013
Order further extending time to file response to petition to and including July
22, 2013, for all respondents.
Application (12A1181) to file consolidated bnef in opposition in excess of word
limits, submitted to The Chief Justice.
Application (12A1181) to file consolidated bnef in opposition in excess of word
limits granted by The Chief Justice. The consolidated brief in opposition may
not exceed 12,000 words.
Application (13A35) to file consolidated brief in opposition in excess of word
limits, submitted to The Chief Justice.
Application (13A35) to file consolidated brief in opposition in excess of word
limits granted by The Chief Justice. The consolidated brief in opposition may
not exceed 11,000 words.
Bnef of respondents Environmental Protection Agency, et al. in opposition filed
VIDED.
Brief of Environmental Organization respondents in opposition filed. VIDED.
Brief of respondents New York, et al. in opposition filed. VIDED.
Reply of petitioner Southeastern Legal Foundation, Inc., 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 tnggered 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.
Bnefing proposal of the parties. VIDED
Letter from Coalition for Responsible Regulation, Inc., et al. regarding briefing
proposal. VIDED.
Upon consideration of the letter of October 22, 2013, from counsel for
petitioners in No. 12-1248 on behalf of the parties, the briefing proposal set out
in the letter is adopted with the exception that the bnefs of petitioners shall not
exceed 45,000 words in aggregate. The bnefs of respondents in support of
petitioners shall not exceed 6,000 words each. The brief of the Solicitor
General shall not exceed 15,000 words. The 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
cunae briefs in support of either party or neither party. VIDED
The time to file joint appendix, petitioners’ briefs on the merits, 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 brefs, 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 petitioners Southeastern Legal
Foundation, et al. VIDED
Nov 8 2013 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 Envirionmenta! Organizations, Center
for Biological Diversity, 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 Letter received from counsel for the Automobile Respondents. VIDED
Nov 19 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for Energy-intensive Manufacturers
Working Group on Greenhouse Gas Regulation, et al. VIDED.
Nov 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for The Chamber of Commerce of the
United States of America, et al. VIDED.
Nov 25 2013 SET FOR ARGUMENT ON Monday, February 24, 2014
Dec 92013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the National Mining Association.
VIDED.
Dec 92013 Brief of respondents Coalition for Responsible Regulation, Inc., et al. in support
of petitioners filed. VIDED.
Dec 92013 Brief of petitioners American Chemistry Council, et al. filed. VIDED.
Dec 92013 Bref of petitioners Chamber of Commerce of the United States of America, et
al. filed. VIDED.
Dec 92013 Brief 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 Bref of petitioners Texas, et al. filed. VIDED.
Dec 92013 Joint appendix filed (5 volumes). (Statement of costs filed.) VIDED
Dec 92013 Brief of petitioner Utility Air Regulatory Group filed. VIDED.
Dec 11 2013 Brief amicus curiae of Landmark Legal Foundation filed.
Dec 12 2013 Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED.
Dec 13 2013 Record received from U.S.C.A. DC Circuit. The record is electronic.
Dec 16 2013 Bnef 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 Bnef amici curiae of Economists Thomas C. Schelling, et al. filed. VIDED.
Dec 16 2013 Brief amicus curiae of Committee for a Constructive Tomorrow filed.
Dec 16 2013 Brief amicus curiae of Committee for a Constructive Tomorrow filed. VIDED.
Dec 16 2013 Brief amicus curiae of American Civil Rights Union filed. VIDED.
Dec 16 2013 Brief amici curiae of Texas Oil & Gas Association, et al. filed. VIDED.
Dec 16 2013 Brief amicus curiae of Senator Mitch McConnell and Other Members of the
United States Congress filed. VIDED.
Dec 16 2013 Brief amicus cunae of Mountain States Lega! Foundation filed. VIDED.
Dec 16 2013 Brief amici curiae of Five U.S. Senators filed. VIDED.
Dec 16 2013 Brief amicus curiae of Center for Constitutional 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 Bnef amici curiae of Administrative Law Professors, et al. filed. VIDED
(Distributed)
Dec 16 2013 Bnef amicus curiae of American Road & Transportation Builders Association in
support of neither party filed. VIDED. (Distributed)
Dec 16 2013 Bnef 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.
(Distnbuted)
Jan 21 2014 Bnef of respondents New York, et al. filed. VIDED. (Distnbuted)
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. Ver>rilli, Jr., Solicitor General, Department of Justice,
Washington, D. C.
PETITION
FOR
WRIT OF
CERTIORARI
BRIEFS
OFFICE OF THE CLERK |
Supreme Court 6 of th hac Gnited States
SOUTHEASTERN LEGAL POUNDATION, INC., et al.,
Vv.
Petitioners,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
¢
Respondents.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
o
PETITION FOR WRIT OF CERTIORARI
S
EDWARD A. KAZMAREK
KAZMAREK GEIGER & LASETER LLP
One Securities Center
3490 Piedmont Road, N.E., Suite 350
Atlanta, GA 30305
(404) 812-0839
Co-Counsel for Southeastern
Legal Foundation, Inc.
Harry W. MACDOUGALD
CALDWELL & Watson, LLP
Two Ravinia Drive, Suite 1600
Atlanta, GA 30346
(404) 843-1956
Co-Counsel for Southeastern
Legal Foundation, Inc.
SAM KAZMAN
HANS BADER
COMPETITIVE ENTERPRISE
INSTITUTE, INC.
1899 L Street, N.W., Floor 12
Washington, DC 20036
(202) 331-1010
Co-Counsel for Competitive
Enterprise Institute, Inc.
April 19, 2013
SHANNON LEE GOESSLING
Counsel of Record
SOUTHEASTERN LEGAL
FOUNDATION, INC.
2255 Sewell Mill Road.
Suite 320
Marietta, GA 30062
(770) 977-2131
shannon@
southeasternlegal org
Counsel for All Petitioners
Washington, DC 20006
(202) 261-3483
Co-Counsel for Southeastern
Legal Foundation, Inc.
[Additional Parties Listed On Inside Cover]
aoa Ss evott ongress
COCKLE LAW BRIEF PRINTING CO. (800) 225.6964
OR CALL COLLECT (402) 342-2831 Law Library
ADDITIONAL PETITIONERS
U.S. Representative Michele Bachmann; U.S. Representa-
tive Joe Barton; U.S. Representative Marsha Blackburn;
U.S. Representative Kevin Brady; U.S. Representative
Paul Broun; U.S. Representative Phil Gingrey; U/S.
Representative Steve King; U.S. Representative Jack
Kingston; U.S. Representative Tom Price; U.S. Repre-
sentative Dana Rohrabacher; U.S. Representative John
Shimkus; U.S. Representative Lynn Westmoreland; The
Langdale Company; Langdale Forest Products Company:
Langdale Timber Company; Langdale Farms, LLC;
Langdale Fuel Company; Langdale Chevrolet, Inc.;
Langdale Ford Company; Langboard, Inc. -— MDF:
Langboard, Inc. - OSB; Georgia Motor Trucking Associa-
tion, Inc.; Collins Industries, Inc.; Collins Trucking Com-
pany, Inc.: Kennesaw Transportation, Inc.; J&M Tank
Lines, Inc.; Southeast Trailer Mart, Inc.; Georgia Agri-
business Council, Inc.; Competitive Enterprise Institute;
FreedomWorks; and Science and Environmental Policy
Project
ADDITIONAL RESPONDENT
Robert Perciasepe, Acting Administrator, United States
Environmental Protection Agency
i
QUESTIONS PRESENTED
Leveraging this Court’s opinion in Massachusetts
v. EPA, 549 U.S. 547 (2007), the Environmental Pro-
tection Agency (“EPA”) has launched the most expan-
sive regulatory program in the history of the United
States, a program that not only regulates greenhouse
gas (“GHG”) emissions from mobile sources (at issue
in Massachusetts), but also from thousands (potentially
millions) of stationary sources. By EPA’s own admis-
sion, expanding GHG regulation to stationary sources
was contrary to the express terms of the Clean Air
Act (“CAA” or “the Act”), was at odds with clear con-
gressional intent, and produced a regulatory program
that was “absurd” and “impossible” to administer.
The U.S. Court of Appeals for the D.C. Circuit, how-
ever, affirmed the totality of EPA’s regulatory pro-
gram, due in large part to that court’s view that EPA’s
legal premises were compelled by Massachusetts.
This Petition raises three questions for this
Court’s consideration:
1. May EPA exert authority over GHG emis-
sions under the Clean Air Act where (1) EPA
acknowledged that its interpretation of the Act is
fundamentally inconsistent with both the express
terms of the Act and the manifest intent of Congress
and would lead to results that are “absurd” and
“impossible” to administer, (2) there exist reasonable
alternative interpretations of the Act that do not
create such conflicts and absurd results, and (3) EPA’s
‘
QUESTIONS PRESENTED - Continued
action was based on an irrational claim of scientific
certainty in the face of ample contradictory and
equivocal evidence in the rulemaking record?
2. Having adopted an “absurd” and “impossible”
interpretation of the Act, may EPA then rewrite the
statutory requirements of the CAA to substitute its
own preferred “tailored” regulatory regime for sta-
tionary GHG emissions in order to avoid the absurd
and impossible results of its own making?
3. Is EPA’s administrative “tailoring” of the Act
to avoid the absurd results of its own interpretation
beyond judicial review on the ground that no party
has standing to challenge the assumed administra-
tive power to relax statutory requirements?
ill
PARTIES TO THE PROCEEDINGS
Challenges to 74 Fed. Reg. 66,496 (Dec. 15,
2009) (the “Endangerment Finding”):
1. Petitioners Southeastern Legal Foundation,
Inc.; U.S. Representative Michele Bachmann; U.S.
Representative Kevin Brady; U.S. Representative
Paul Broun; U.S. Representative Phil Gingrey; U.S.
Representative Steve King; U.S. Representative Jack
Kingston; U.S. Representative Tom Price; U.S. Repre-
sentative Dana Rohrabacher; U.S. Representative
John Shimkus; U.S. Representative Lynn West-
moreland; The Langdale Company; Langdale Forest
Products Company; Langdale Farms, LLC; Langdale
Fuel Company; Langdale Chevrolet, Inc.; Langdale
Ford Company; Langboard, Inc. —- MDF; Langboard,
Inc. — OSB; Georgia Motor Trucking Association, Inc.;
Collins Industries, Inc.; Collins Trucking Company,
Inc.; Kennesaw Transportation, Inc.; J&M Tank
Lines, Inc.; Southeast Trailer Mart, Inc.; Georgia
Agribusiness Council, Inc.; Competitive Enterprise
Institute; FreedomWorks; and Science and Environ-
mental) Policy Project were petitioners below.
2. Respondent United States Environmental
Protection Agency was a respondent below.
3. Additional petitioners below, who are nominal
respondents on review, were Coalition for Responsible
Regulation, Inc.; Industrial Minerals Association —
North America; National Cattlemen’s Beef Association;
iv
PARTIES TO THE PROCEEDINGS -— Continued
Great Northern Project Development, L.P.; Rosebud
Mining Co.; Massey Energy Company; Alpha Natural
Resources, Inc.; American Iron and Steel Institute;
Gerdau Ameristeel US Inc.; Peabody Energy Com-
pany; American Farm Bureau Federation; National
Mining Association; Chamber of Commerce of the
United States of America; Ohio Coal Association;
Utility Air Regulatory Group; National Association of
Manufacturers; American Petroleum Institute; Brick
Industry Association; Corn Refiners Association;
National Association of Home Builders; National
Oilseed Processors Association; National Petrochemi-
cal & Refiners Association; Western States Petroleum
Association; State of Alabama; Commonwealth of Vir-
ginia; Rick Perry, Governor of Texas; Greg Abbott,
Attorney General of Texas; Texas Commission on En-
vironmental Quality; Texas Agriculture Commission;
Barry Smitherman, Chairman, Texas Public Utility
Commission; and Portland Cement Association.
4. Petitioner-intervenors below, who are nomi-
nal respondents on review, were State of Alaska;
Portland Cement Association; State of Nebraska;
State of Florida; State of Hawaii; State of Indiana;
State of Kentucky; State of Louisiana; Governor
Haley Barbour, State of Mississippi; State of North
Dakota; State of Oklahoma; State of South Carolina;
State of South Dakota; State of Utah; State of Michi-
gan; Glass Packaging Institute; Independent Petroleum
Association of America; Louisiana Oil and Gas
Vv
PARTIES TO THE PROCEEDINGS -— Continued
Association; National Electrical Manufacturers
Association; Michigan Manufacturers Association;
Indiana Cast Metals Association; Virginia Manufac-
turers Association; Colorado Association of Commerce
and Industry; Tennessee Chamber of Commerce;
West Virginia Manufacturers Association; Kansas
Chamber of Commerce and Industry; Idaho Associa-
tion of Commerce and Industry; Pennsylvania Manu-
facturers Association; Ohio Manufacturers Association;
Wisconsin Manufacturers and Commerce; Nebraska
Chamber of Commerce and Industry; Arkansas State
Chamber of Commerce; Associated Industries of
Arkansas; and Mississippi Manufacturers Associa-
tion.
5. Respondent-intervenors below, who are re-
spondents on review, were Commonwealth of Massa-
chusetts; State of Arizona; State of California; State
of Connecticut; State of Delaware; State of Iowa;
State of Illinois; State of Maine; State of Maryland;
State of New Hampshire; State of New Mexico; State
of New York; State of Oregon; State of Rhode Island;
State of Vermont; State of Washington; City of New
York; Natural Resources Defense Council; Environ-
mental Defense Fund; Sierra Club; National Wildlife
Federation; Conservation Law Foundation, Inc.; Com-
monwealth of Pennsylvania, Department of Environ-
mental Protection; State of Minnesota; and Wetlands
Watch.
vi
PARTIES TO THE PROCEEDINGS -- Continued
6. A respondent below, who is a nominal re-
spondent on review, was Lisa Perez Jackson, Ad-
ministrator, United States Environmental Protection
Agency. Ms. Jackson ceased to hold the office of Ad-
ministrator, United States Environmental Protection
Agency, on February 15, 2013; that office is currently
held in an acting capacity by Robert Perciasepe,
Acting Administrator, United States Environmental
Protection Agency.
Challenges to 75 Fed. Reg. 17,004 (Apr. 2, 2010)
(the “Timing Rule”):
1. Petitioners Southeastern Legal Foundation,
Inc.; U.S. Representative Michele Bachmann; U.S.
Representative Marsha Blackburn; U.S. Representa-
tive Kevin Brady; U.S. Representative Paul Broun;
U.S. Representative Phil Gingrey; U.S. Representa-
tive Steve King; U.S. Representative Jack Kingston;
U.S. Representative Tom Price; U.S. Representa-
tive Dana Rohrabacher; U.S. Representative John
Shimkus; U.S. Representative Lynn Westmoreland;
The Langdale Company; Langdale Forest Products
Company; Langdale Farms, LLC; Langdale Fuel
Company; Langdale Chevrolet, Inc.; Langdale Ford
Company; Langboard, Inc. - MDF; Langboard, Inc. —
OSB; Georgia Motor Trucking Association, Inc.;
Collins Industries, Inc.; Collins Trucking Company,
Inc.; Kennesaw Transportation, Inc.; J&M Tank
Vii
PARTIES TO THE PROCEEDINGS - Continued
Lines; Southeast Trailer Mart, Inc.; and Georgia
Agribusiness Council, Inc. were petitioners below.
2. Respondent United States Environmental
Protection Agency was a respondent below.
3. Additional petitioners below, who are nomi-
nal respondents on review, were Coalition for Respon-
sible Regulation, Inc.; Industrial Minerals Association
— North America; National Cattlemen’s Beef Associa-
tion; Great Northern Project Development, L.P.;
Rosebud Mining Co.; Massey Energy Company; Alpha
Natural Resources, Inc.; Clean Air Implementation
Project; American [ron and Steel Institute; Gerdau
Ameristeel US Inc.; Energy-Intensive Manufacturers’
Working Group on Greenhouse Gas Regulation;
Center for Biological Diversity; Peabody Energy
Company; American Farm Bureau Federation; Na-
tional Mining Association; Utility Air Regulatory
Group; Chamber of Commerce of the United States of
America; Missouri Joint Municipal Electric Utility
Commission; National Environmental Development
Association’s Clean Air Project; Ohio Coal Associa-
tion; National Association of Manufacturers; Ameri-
can Frozen Food Institute; American Petroleum
Institute; Brick Industry Association; Corn Refiners
Association; Glass Packaging Institute; Independent
Petroleum Association of America; Indiana Cast
Metals Association; Michigan Manufacturers Associa-
tion; Mississippi Manufacturers Association; National
Association of Home Builders; National Federation of
Viii
PARTIES TO THE PROCEEDINGS -— Continued
Independent Businesses; National Oilseed Processors
Association; National Petrochemical & Refiners
Association; North American Die Casting 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; 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; and
Portland Cement Association.
4. Petitioner-intervenors below, who are nomi-
nal respondents on review, were Louisiana Depart-
ment of Environmental Quality.
5. Respondent-intervenors below, who are re-
spondents on review, were Environmental Defense
Fund; Natural Resources Defense Council; Sierra
Club; Indiana Wildlife Federation; Michigan Envi-
ronmental Council; Ohio Environmental Council;
National Mining Association; American Farm Bureau
Federation; Peabody Energy Company; Ohio Coal
Association; National Environmental Development
Association’s Clean Air Project; National Association
ix
PARTIES TO THE PROCEEDINGS - Continued
of Manufacturers; American Frozen Food Institute;
American Petroleum Institute; Brick Industry Asso-
ciation; Corn Refiners Association; Glass Packag-
ing Institute; Independent Petroleum Association of
America; Michigan Manufacturers Association; Mis-
sissippi Manufacturers Association; National Associa-
tion of Home Builders; National Federation of
Independent Businesses; National Oilseed Processors
Association; National Petrochemical and RKefiners
Association; Specialty Steel Industry of North Amer-
ica; Tennessee Chamber of Commerce and Industry;
Western States Petroleum Association; West Virginia
Manufacturers Association; Wisconsin Manufacturers
& Commerce; Utility Air Regulatory Group; Coalition
tor Responsible Regulation, Inc.; Industrial Minerals
Association — North America; National Cattlemen’s
Beef Association; Great Northern Project Develop-
ment, L.P.; Rosebud Mining Company; Alpha Natural
Resources, Inc.; and Clean Air Implementation Pro-
ject.
6. A respondent below, who is a nominal re-
spondent on review, was Lisa Perez Jackson, Admin-
istrator, United States Environmental Protection
Agency. Ms. Jackson ceased to hold the office of
Administrator, United States Environmental Protec-
tion Agency, on February 15, 2013; that office is
currently held in an acting capacity by Robert
Perciasepe, Acting Administrator, United States En-
vironmental Protection Agency.
x
PARTIES TO THE PROCEEDINGS - Continued
Challenges to 75 Fed. Reg. 25,324 (May 7, 2010)
(the “Light-Duty Vehicle Rule”):
1. Petitioners Southeastern Legal Foundation,
Inc.; U.S. Representative Michele Bachmann; U:S.
Representative Kevin Brady; U.S. Representative
Paul Broun; U.S. Representative Phil Gingrey; U.S.
Representative Steve King; U.S. Representative Jack
Kingston; U.S. Representative Tom Price; U.S. Repre-
sentative Dana Rohrabacher; U.S. Representative
John Shimkus; U.S. Representative Lynn West-
moreland; The Langdale Company; Langdale Forest
Products Company; Georgia Motor Trucking Associa-
tion, Inc.; Collins Industries, Inc.; Collins Trucking
Company, Inc.; Kennesaw Transportation, Inc.; J&M
Tank Lines, Inc.; Southeast Trailer Mart, Inc.; Geor-
gia Agribusiness Council, Inc.; Competitive Enter-
prise Institute; FreedomWorks; and Science and
Environmental Policy Project were petitioners below.
2. Respondent United States Environmental
Protection Agency was a respondent below.
3. Additional petitioners below, who are nomi-
nal respondents on review, were Coalition for Respon-
sible Regulation, Inc.; Industrial Minerals Association
— North America; National Cattlemen’s Beef Associa-
tion; Great Northern Project Development, L.P.;
Rosebud Mining Co.; Massey Energy Company; Alpha
Natural Resources, Inc.; American Iron and Steel
Institute; Ohio Coal Association; Mark R. Levin,
Landmark Legal Foundation; Gerdau Ameristeel
xi
PARTIES TO THE PROCEEDINGS - Continued
US Inc.; Energy-Intensive Manufacturers’ Working
Group on Greenhouse Gas Regulation; Portland
Cement Association; Chamber of Commerce of the
United States of America; Utility Air Regulatory
Group; National Mining Association; Peabody Energy
Company; American Farm Bureau Federation; Na-
tional Association of Manufacturers; American Frozen
Food Institute; American Petroleum Institute; Brick
Industry Association; Corn Refiners Association;
Glass Packaging Institute; Michigan Manufacturers
Association; National Association of Home Builders;
National Federation of Independent Businesses;
National Oilseed Processors Association; National
Petrochemical and Refiners Association; Specialty
Steel Industry of North America; Tennessee Chamber
of Commerce and Industry; West Virginia Manufac-
turers Association; Wisconsin Manufacturers &
Commerce; American Chemistry Council; American
Forest & Paper Association, Inc.; Clean Air Imple-
mentation Project; State of Texas; Rick Perry, Gover-
nor of Texas; Greg Abbot, Attorney General of Texas;
Texas Agriculture Commission; Texas Public Utilities
Commission; Texas Railroad Commission; Texas
General Land Office; State of Alabama; State of South
Carolina; State of South Dakota; State of Nebraska;
State of North Dakota; Commonwealth of Virginia;
and Haley Barbour, Governor of the State of Missis-
sippi.
sii
PARTIES TO THE PROCEEDINGS - Continued
4. Petitioner-intervenors below, who are nomi-
nal respondents on review, were State of Georgia;
Langdale Farms, LLC; Langdale Fuel Company;
Langdale Chevorlet, Inc.; Langdale Ford Company;
Langboard, Inc. - MDF and Langboard, Inc. — OSB.
5. Respondent-intervenors below, who are re-
spondents on review, were Association of Interna-
tional Automobile Manufacturers; State California;
State of Delaware; State of [llinois; State of Iowa;
State of Maine; State of Maryland; State of Massa-
chusetts; State of New Mexico; State of New York;
State of Oregon; State of Rhode Island; State of
Vermont; State of Washington; Commonwealth of
Pennsylvania; Department of Environmental Protec-
tion; City of New York; Natural Resources Defense
Council; Natural Resources Defense Fund; Sierra
Club; and Alliance of Automobile Manufacturers.
6. A respondent below, who is a nominal re-
spondent on review, was Lisa Perez Jackson, Admin-
istrator, United States Environmental Protection
Agency. Ms. Jackson ceased to hold the office of Ad-
ministrator, United States Environmental Protection
Agency, on February 15, 2013; that office is currently
held in an acting capacity by Robert Perciasepe,
Acting Administrator, United States Environmental
Protection Agency.
PARTIES TO THE PROCEEDINGS - Continued
Challenges to 75 Fed. Reg. 31,514 (Jun. 3, 2010)
(the “Tailoring Rule”):
1. Petitioners Southeastern Legal Foundation,
Inc.; U.S. Representative Michele Bachmann; U.S.
Representative Marsha Blackburn; U.S. Representa-
tive Kevin Brady; U.S. Representative Paul Broun;
U.S. Representative Phil Gingrey; U.S. Representa-
tive Steve King; U.S. Representative Jack Kingston;
U.S. Representative Tom Price; U.S. Representative
Dana Rohrabacher; U.S. Representative John Shimkus;
U.S. Representative Lynn Westmoreland; The Lang-
dale Company; Langdale Forest Products Company;
Langdale Farms, LLC; Langdale Fuel Company;
Langdale Chevrolet, Inc.; Langdale Ford Company;
Langboard, Inc. — MDF; Langboard, Inc. — OSB;
Georgia Motor Trucking Association, Inc.; Collins
Industries, Inc.; Collins Trucking Company, Inc.;
Kennesaw Transportation, Inc.; J&M Tank Lines,
Inc.; Southeast Trailer Mart, Inc.; and Georgia Agri-
business Council, Inc. were petitioners below.
2. Respondent United States Environmental
Protection Agency was a respondent below.
3. Additional petitioners below, who are nomi-
nal respondents on review, were Coalition for Respon-
sible Regulation, Inc.; Industrial Minerals Association
~— North America; National Cattlemen’s Beef Associa-
tion; Great Northern Project Development, L.P;
Rosebud Mining Co.; Massey Energy Company; Alpha
Natural Resources, Inc.; The Ohio Coal Association;
XIV
PARTIES TO THE PROCEEDINGS - Continued
American Iron and Steel Institute; Gerdau Ameristeel
US Inc.; Chamber of Commerce of the United States
of America; Georgia Coalition for Sound Environmen-
tal Policy; National Mining Association; American
Farm Bureau Federation; Peabody Energy Company;
Center for Biological Diversity; Energy-Intensive
Manufacturers’ Working Group on Greenhouse Gas
Regulation; South Carolina Public Service Authority;
Mark R. Levin; Landmark Legal Foundation; Na-
tional Alliance of Forest Owners; American Forest
& Paper Association; Environmental Development
Association’s Clean Air Project; State of Alabama;
State of North Dakota; State of South Dakota; Haley
Barbour, Governor of Mississippi; State of South
Carolina; State of Nebraska; Utility Air Regulatory
Group; Missouri Joint Municipal Electric Utility
Commission; Sierra Club; Clean Air Implementation
Project; National Association of Manufacturers;
American Frozen Food Institute; American Petroleum
Institute; Brick Industry Association; Corn Refiners
Association; Glass Association of North America;
Glass Packaging Institute; Independent Petroleum
Association of America; Michigan Manufacturers
Association; Mississippi Manufacturers Association;
National Association of Home Builders; National
Oilseed Processors Association; Nationa) Petrochemi-
cal and Refiners Association; Tennessee Chamber of
Commerce and Industry; Western States Petroleum
Association; West Virginia Manufacturers Association;
Wisconsin Manufacturers & Commerce; National
XV
PARTIES TO THE PROCEEDINGS -— Continued
Federation of Independent Businesses; Portland
Cement Association; Louisiana Department of En-
vironmental Quality; Rick Perry, Governor of Texas;
Greg Abbott, Attorney General of Texas; Texas
Commission on Environmental Quality; Texas De-
partment of Agriculture; Texas Public Utilities Com-
mission; Texas Railroad Commission; Texas General
Land Office; and State of Texas.
4. Petitioner-intervenors below, who are nomi-
nal respondents on review, were National Association
of Manufacturers; American Frozen Food Institute;
American Petroleum Institute; Corn Refiners Associa-
tion; Glass Association of North America; Independ-
ent Petroleum Association of America; Indiana Cast
Metals Association; Michigan Manufacturers Associa-
tion; National Association of Home Builders; National
Oilseed Processors Association; National Petrochemi-
cal and Refiners Association; Tennessee Chamber of
Commerce and Industry; Western States Petroleum
Association; West Virginia Manufacturers Associa-
tion; and Wisconsin Manufacturers & Commerce.
5. Respondent-intervenors below, who are re-
spondents on review, were Natural Resources De-
fense Council; Environmental Defense Fund; Sierra
Club; State of New York; State of California; State of
Illinois; State of Iowa; State of Maine; State of
Maryland; Commonwealth af Massachusetts; State
of New Mexico; State of Oregon; Commonwealth
of Pennsylvania Department of Environmental
xvi
PARTIES TO THE PROCEEDINGS ~- Continued
Protection; State of Rhode Island; National Asso-
ciation of Manufacturers; City of New York; Asso-
ciation of International Automobile Manufacturers;
and Alliance of Automobile Manufacturers.
6. A respondent below, who is a nominal re-
spondent on review, was Lisa Perez Jackson, Admin-
istrator, United States Environmental Protection
Agency. Ms. Jackson ceased to hold the office of
Administrator, United States Environmental Protec-
tion Agency, on February 15, 2013; that office is
currently held in an acting capacity by Robert
Perciasepe, Acting Administrator, United States
Environmental Protection Agency.
Challenges to 75 Fed. Reg. 49,556 (Aug. 13,
2010) (the “Reconsideration” ):.
1. Petitioners Southeastern Legal Foundation,
Inc.; U.S. Representative Michele Bachmann; U.S.
Representative Marsha Blackburn; U.S. Representa-
tive Kevin Brady; U.S. Representative Paul Broun;
U.S. Representative Phil Gingrey; U.S. Representa-
tive Steve King; U.S. Representative Jack Kingston;
U.S. Representative Tom Price; U.S. Representative
Dana Rohrabacher; U.S. Representative John Shim-
kus; U.S. Representative Lynn Westmoreland; The
Langdale Company; Langdale Forest Products Com-
pany; Langdale Farms, LLC; Langdale Fuel Com-
pany; Langdale Chevrolet, Inc.; Langdale Ford
Company; Langboard, Inc. - MDF; Langboard, Inc. —
xvii
PARTIES TO THE PROCEEDINGS -— Continued
OSB; Georgia Motor Trucking Association, Inc.; Collins
Industries, Inc.; Collins Trucking Company, Inc.;
Kennesaw Transportation, Inc.; J&M Tank Lines,
Inc.; Southeast Trailer Mart, Inc.; and Georgia Agri-
business Council, Inc. were petitioners below.
2. Respondent United States Environmental
Protection Agency was a respondent below.
3. Additional petitioners below, who are nomi-
nal respondents on review, were Coalition for Respon-
sible Regulation, Inc.; Industrial Minerals Association
— North America; National Cattlemen’s Beef Associa-
tion; Great Northern Project Development, L.P.;
Rosebud Mining Co.; Alpha Natural Resources, Inc.;
Peabody Energy Company; Chamber of Commerce of
the United States; Rick Perry, Governor of Texas;
Greg Abbott; Attorney General of Texas; Texas Com-
mission on Environmental Quality; Texas Agriculture
Commission; Barry Smitherman, Chairman of the
Texas Public Utilities Commission; Pacific Legal
Foundation; Commonwealth of Virginia; Utility Air
Regulatory Group; and The Ohio Coal Association.
4. Petitioner-intervenors below, who are nomi-
nal respondents on review, were Chamber of Com-
merce for the United States of America.
5. Respondent-intervenors below, who are nomi-
nal respondents on review, were Natural Resources
Defense Council; Conservation Law Foundation, Inc.;
xviii
PARTIES TO THE PROCEEDINGS - Continued
Sierra Club; National Wildlife Federation; and Wet-
lands Watch.
6. Arespondent below, who is a nominal respon-
dent on review, was Lisa Perez Jackson, Administra-
tor, United States Environmental Protection Agency.
Ms. Jackson ceased to hold the office of Administra-
tor, United States Environmental] Protection Agency,
on February 15, 2013; that office is currently held in
an acting capacity by Robert Perciasepe, Acting
Administrator, United States Environmental Protec-
tion Agency.
xix
RULE 29.6 DISCLOSURE STATEMENT
Petitioner Southeastern Legal Foundation, Inc.
(“SLF”) is a non-profit Georgia corporation and
constitutional public interest law firm and policy
center that advocates limited government, individual
economic freedom, and the free enterprise system in
the courts of law and public opinion. SLF has no
parent companies. No publicly held corporation has
ten percent or greater ownership interest in SLF.
Petitioner The Langdale Company is a Georgia
corporation and is the parent company for a diverse
group of businesses, some of which are described
elsewhere in this Petition. The Langdale Company
has no parent companies. No publicly held corpora-
tion has ten percent or greater ownership in The
Langdale Company.
Petitioner Langdale Forest Products Company
is a Georgia corporation and is a leading producer
of lumber, utility poles, marine piling, and fence
posts. Langdale Forest Products Company is a wholly
owned subsidiary of The Langdale Company. No
publicly held corporation has ten percent or greater
ownership in Langdale Forest Products Company.
Petitioner Langdale Farms, LLC is a Georgia
Corporation in the business of producing soybeans,
peanuts, cotton, pecans, tomatoes, hay, cattle, and
fish. Langdale Farms, LLC is a wholly owned subsid-
iary of The Langdale Company. No publicly held
corporation has ten percent or greater ownership in
Langdale Farms, LLC.
xx
RULE 29.6 DISCLOSURE STATEMENT — Continued
Petitioner Langdale Fuel Company is a Georgia
corporation in the business of providing fuel and lu-
bricants for The Langdale Com-any’s needs.
Langdale Fuel Company is a wholly »wned subsidiary
of The Langdale Company. No publicly held corpora-
tion has ten percent or greater ownership in Langdale
Fuel Company.
Petitioner Langdale Chevrolet, Inc. is a Georgia
corporation in the business of selling and servicing
automobiles. Langdale Chevrolet, Inc. is a wholly
owned subsidiary of The Langdale Company. No
publicly held corporation has ten percent or greater
ownership in Langdale Chevrolet, Inc.
Petitioner Langdale Ford Company is a Georgia
corporation in the business of selling and servicing
automobiles and trucks, including for commercial
fleets. Langdale Ford Company is a wholly owned
subsidiary of The Langdale Company. No publicly
held corporation has ten percent or greater ownership
in Langdale Ford Company.
Petitioner Langboard, Inc. — OSB is a Georgia
corporation in the business of producing oriented
strand board, which is used as flooring, roofing, and
siding in the home construction industry. Langboard,
Inc. — OSB is a wholly owned subsidiary of The
Langdale Company. No publicly held corporation has
ten percent or greater ownership in Langboard, Inc.
— OSB.
xxi
RULE 29.6 DISCLOSURE STATEMENT — Continued
Petitioner Langboard, Inc. - MDF is a Georgia
corporation in the business of producing medium den-
sity fiberboard, which is used, among other things,
in the construction of molding, flooring, and furni-
ture. Langboard, Inc. — MDF is a wholly owned
subsidiary of The Langdale Company. No publicly
held corporation has ten percent or greater ownership
in Langboard, Inc. ~ MDF.
Petitioner Georgia Motor Trucking Association,
Inc. is a Georgia corporation and trade association for
the trucking industry in Georgia. The mission of the
Georgia Motor Trucking Association is to promote:
reasonable laws; evenhanded, common-sense admin-
istration; equitable and competitive fees and taxes; a
market, political and social environment favorable to
the trucking industry; and good citizenship among
the people and companies of Georgia’s trucking in-
dustry. It represents more than 400 for-hire carriers,
400 private carriers, and 300 associate members.
Georgia Motor Trucking Association, Inc. has no par-
ent corporation. No publicly held corporation has ten
percent or greater ownership interest in the Georgia
Motor Trucking Association, Inc.
Petitioner Collins Industries, Inc. is a Georgia
corporation in the business of transporting building
products. Collins Industries, Inc. has no parent
corporation. No publicly held corporation has ten
percent or greater ownership interest in Collins
Industries, Inc.
XXii
RULE 29.6 DISCLOSURE STATEMENT — Continued
Petitioner Collins Trucking Company, Inc. is a
Georgia corporation in the business of transporting
pine and hardwood logs in Georgia. Collins Trucking
Company, Inc. is a subsidiary of Collins Industries,
Inc. No publicly held corporation has ten percent or
greater ownership interest in Collins Trucking Com-
pany, Inc.
Petitioner Kennesaw Transportation, Inc. is a
Georgia corporation in the business of truckload long-
haul transportation of goods across the United States.
Kennesaw Transportation, Inc. has no parent com-
pany. No publicly held corporation has a ten percent
or greater ownership interest in Kennesaw Transpor-
tation, Inc.
Petitioner J&M Tank Lines, Inc. is a Georgia
corporation in the business of transporting industria)]-
grade products, such as lime, calcium carbonate,
cement, and sand; food-grade products, such as flour;
and agricultural-grade products, such as salt. J&M
Tank Lines, Inc. operates a fleet of tractors and tanks
and has terminals located in Georgia, Alabama, and
Texas. J&M Tank Lines, Inc. has no parent company.
No publicly held corporation has a ten percent or
greater ownership in J&M Tank Lines, Inc.
Petitioner Southeast Trailer Mart, Inc. is a
Georgia corporation in the business of selling and
servicing semi-trailers. Southeast Trailer Mart, Inc.
has no parent company. No publicly held company
RULE 29.6 DISCLOSURE STATEMENT ~ Continued
has a ten percent or greater ownership in Southeast
Trailer Mart, Inc.
Petitioner Georgia Agribusiness Council, Inc. is a
Georgia corporation whose mission is to advance the
business of agriculture and promote environmental
stewardship in Georgia. The Georgia Agribusiness
Council, Inc. has no parent company. No publicly held
company has a ten percent or greater ownership in
Georgia Agribusiness Council, Inc.
Petitioner Competitive Enterprise Institute (“CEI”)
is a non-profit 501(c)(3) corporation organized under
the laws of the District of Columbia for the purpose of
defending free enterprise, limited government, and
the rule of law. It has no parent companies. No pub-
licly held corporation has a ten percent or greater
ownership interest in it.
Petitioner Freedom Works is a non-profit 501(c)(4)
corporation organized under the laws of the District
of Columbia for the purpose of promoting individual
liberty, consumer choice and competition, and has
over 870,000 members nationwide. It has no parent
companies, and no publicly held corporation has a ten
percent or greater ownership interest in it.
XXIV
RULE 29.6 DISCLOSURE STATEMENT -— Continued
Petitioner Science and Environmental Policy
Project (“SEPP”) is a non-profit 501(cX3) corporation
organized under the laws of the State of Virginia for
the purpose of promoting sound and credible science
as the basis for regulatory decisions. It has no parent
companies, and no publicly held corporation has a ten
percent or greater ownership interest in it.
xXXV
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................cccceeeseeeees i
PARTIES TO THE PROCEEDINGS ................... ili
RULE 29.6 DISCLOSURE STATEMENT ........... xix
TABLE OF AUTHORITIES ...................20..0..202005- xxix
ET vcciccnndcuisnedenenincnatemninnennendscenuine 1
Fe irctettcdonstiterssnnepessneninenimensonnmennies 1
CONSTITUTIONAL, STATUTORY, AND REG-
ULATORY PROVISIONS ................cceceeeeeeeeeeees 1
STATEMENT OF THE CASE. ..................:scceeeeees 2
REASONS FOR GRANTING THE PETITION.... 8
1. EPA’s conclusions in the Endangerment
Finding are irrational and cannot support
such a dramatic expansion of regulatory
I pinicittsineniscinicnsinciveininninnnienaiatiinianinnannunn 10
II. The Timing and Tailoring Rules are fun-
damentally contrary to the express terms
of the Clean Air Act and the acknowledged
IIE jnnnstvaccusnnsndenniunniiudseiniiees 18
Ill. The D.C. Circuit erred in concluding that
none of the Petitioners had standing to chal-
lenge the Timing and Tailoring Rules......... 27
IV. This case portends an unconstitutional
and dangerous shift in the balance of
power from the Legislative Branch to the
BEMOOUEEVO TITGMGR 00 cccccccccesscccccccccesscocccocceees 30
EEE Pesnsquccvesssnnsnebersnenveonnnenntereiennnsstinesenes 35
XXxvi
TABLE OF CONTENTS -— Continued
Page
APPENDIX MATERIALS:
Petitioners’ Appendix (“App.”) includes selected
excerpts from the record below, as well as the
relevant provisions of the Clean Air Act, 42
U.S.C. § 7401, et seq.
Petitioners also incorporate the materials
contained in the Joint Appendix (“JA”) filed
in the proceedings below before the United
States Court of Appeals for the District of
Columbia.
APPENDIX
Opinion of the United States Court of Appeals
for the DC Circuit dated Jun. 26, 2012............ App. 1
Order on Petitions for Rehearing En Banc
Eee App. 104
Relevant Sections of the Clean Air Act, 42
rs Oe Wie II, ennsescccntccccrndentsnssenensiianie App. 164
Excerpt from EPA Technical Support Document
for The Endangerment Finding, defining the
meaning of “very likely” ....................:cseeeeeees App. 169
Excerpt from Public Comment submitted by
Alan Chetham, on the Endangerment Find-
ing regarding whether “global” warming is
I ET CIEE ccenesosnesintecnatiticsconsmnmanisinnios App. 172
es
TABLE OF CONTENTS — Continued
Page
Excerpt from US Climate Change Science
Program Synthesis and Assessment Product
1.1, Temperature Trends in the Lower At-
mosphere, Steps for Reconciling and Under-
standing Differences ...................s.ccssccsesesees App.
Excerpt from Public Comment submitted by
Joseph D’Aleo on the Endangerment Finding
regarding past warming in the Arctic........... App.
Excerpt from Public Comment submitted by
Joseph D’Aleo on the Endangerment Finding
regarding the absence of any trend in ex-
QR GID cececctsnnsnnnnsnnsntintiininiciiniaieamnl App.
Excerpt from Public Comment submitted by
Joseph D’Aleo on the Endangerment
BIT crconscnuiesosonsismnssminniebsammeeddieinaianiauial App.
Excerpt from US Climate Change Science
Program, Synthesis and Assessment Product
1.1, Temperature Trends in the Lower At-
mosphere, Steps for Reconciling and Under-
standing Differences ....................cccsseseeeeeeees App
Excerpt from Public Comment, authored by
Professor Richard S. Lindzen, Alfred P. Sloan
Professor of Atmospheric Sciences, M.LT.,
discussing model validity.......................c.e00s App
Excerpts from Nongovernmental! Internation-
al Panel on Climate Change (“NIPCC”),
Final Report, Climate Change Reconsid-
OB cacnsennssecsemnasiasiminntinimininaniaiaiaadaliaaa App.
173
175
177
180
. 182
. 184
187
TABLE OF AUTHORITIES
Page
CASES
Alabama Power Co. v. Costle, 636 F.2d 323
ES 25
American Electric Power Co. v. Connecticut,
is ee teincamemeneteees ll
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.
I ccesnmnnnonntii 24
Citizens to Preserve Overton Park v. Volpe, 401
rca nnicnicnrninniinsmiiennneneninns 17
Environmental Defense v. Duke Energy, 549
a 25
FDA v. Brown & Williamson, 529 U.S. 120
EE 31, 32, 33
Free Enterprise Fund v. Public Company
Accounting Oversight Board, 130 S. Ct. 3138
I lc ech gin reementeinntigesansugeenenene 35
Lujan v. Defenders of Wildlife, 504 U.S. 555
EE ae 29
Massachusetts v. EPA, 549 U.S. 497 (2007)....... passim
Owner-Operators Independent Drivers Ass’n v.
FMCSA, 494 F.3d 188 (D.C. Cir. 2007). ................. 15
Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir.
1981), rev'd on other grounds, 463 U.S. 680
REESE a a ae 14, 15
xxix
TABLE OF AUTHORITIES — Continued
Page
Steel Co. v. Citizens for a Better Environment,
ER IE AL Lee 29
WildEarth Guardians v. Salazar, 880 F. Supp.
2d 77 (D.D.C. 2012), appeal docketed, No. 12-
5300 (D.C. Cir. Sep. 26, 2012)......c.cccccsccceseseeseeeeeeee 16
CONSTITUTIONAL PROVISIONS
eel 1
OR ala l
STATUTES AND REGULATIONS
I, ia a al a l
Clean Air Act, 42 U.S.C. § 7401, et seq. ............. 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) (codified at 40 C.F.R.
SD 20) isitecsnninincicliniineieseaihainaiindamenaneinin passim
Reconsideration of Interpretation of Regula-
tions that Determine Pollutants Covered by
Clean Air Act Permitting Programs, 75 Fed.
Reg. 17,004 (Apr. 2, 2010) (codified at 40
C.FR. pts. 50, 51, 70, and 71)......ccccccceceseeeees passim
xxx
TABLE OF AUTHORITIES — Continued
Page
Light-Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average Fuel
Economy Standards; Final Rule, 75 Fed.
Reg. 25,324 (May 7, 2010) (codified at 40
C.F.R. pts. 85, 86, and 600; 49 C.F.R. pts.
531, 533, 536, 537, amd 538) .............cccsccseeeees passim
Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule, 75
Fed. Reg. 31,514 (Jun. 3, 2010) (codified at
40 C.F.R. pts. 51, 52, 70, and 71).....c.ccccccs0e0e- passim
Denial of the Petitions to Reconsider the En-
dangerment and Cause or Contribute Find-
ings for Greenhouse Gases Under Section
202(a) of the Clean Air Act; Final Rule, 75
Fed. Reg. 49,556 (Aug. 13, 2010)...........eeeeeeeees 7
Greenhouse Gas Emissions Standards and
Fuel Efficiency Standards for Medium- and
Heavy-Duty Engines and Vehicles; Final
Rule, 76 Fed. Reg. 57,105 (Sep. 15, 2011)
(codified at 40 C.F.R. pts. 85, 86, 600, 1033,
1036, 1037, 1039, 1066, and 1068; 49 C.F.R.
ED, Ses Sees CEE GEE ccreinenssesncnnecssuisnineninnsnssemacennes 16
Standards of Performance for Greenhouse Gas
Emissions for New Stationary Sources: Elec-
tric Utility Generating Units; Proposed Rule,
77 Fed. Reg. 22,391 (Apr. 13, 2012) (codified
a le I cisdccicsennemiininintnanintnmintdinnenion 16
xxxi
TABLE OF AUTHORITIES — Continued
Page
OTHER AUTHORITIES
David Rose, Global warming stopped 16 years
ago, reveals Met Office report quietly released
... and here is the chart to prove it,
MailOnline (UK), Oct. 13, 2012, http://www.
dailymail.co.uk/sciencetech/article-2217286/
Global-warming-stopped-16-years-ago-reveals-
Met-Office-report-quietly-released-chart-prove-
it.html (last visited Apr. 10, 2013).....................0004.
Emily Hammond Meazell, Super Deference, the
Science Obsession, and Judicial Review as
Translation of Agency Science, 109 Mich. L.
I TTT iri nels nniiiinbimniaebimaimmnaiens
Intergovernmental Panel on Climate Change,
Fourth Assessment Report: Climate Change
2007, Working Group I: The Physical Science
Basis, 8.4.7 El Nino — Southern Oscillation,
http-//www.ipcec.ch/publications_and_data/ar4/
wgl/en/ch8s8-4-7.htm] (last visited Apr. 10,
Si cinchinaisinuningundiininiemenctinnmianineesngminmenens passim
Met Office Hadley Centre observations datasets,
http://www.metoffice.gov.uk/hadobs/hadcrut4/
(last visited Apr. 10, 2013) ..0..........c ce ccceeeeeee eee eee
A Sensitive Matter, The Economist, Mar. 30, 2013,
http://www.economist.com/news/science-and-
technology/21574461-climate-may-be-heating-
up-less-response-greenhouse-gas-emissions
(last visited Apr. 15, 2013) ..............ccccccecceeeeeeeeeee ones
ee
TABLE OF AUTHORITIES — Continued
Tom Schoenberg, EPA Greenhouse-Gas Rules
Upheld by U.S. Appeals Court, Bloomberg
News, Jun. 26, 2012, http://www.bloomberg.
com/news/2012-06-26/epa-greenhouse-gas-rules-
upheld-by-u-s-appeals-court.htm! (last visited
Po cendenienaiae’
United States Climate Change Science Program,
Temperature Trends in the Lower Atmos-
phere, Steps for Understanding and Recon-
ciling Differences, Synthesis and Assessment
Product 1.1, Temperature Trends in the Low-
er Atmosphere, Steps for Reconciling and
Understanding Differences, http://downloads.
globalchange.gov/sap/sap1-1/sap1-1-final-all.pdf
(last visited Apr. 10, 2013) .................ccccccceeeeeeees
United States Senate Committee on Environ-
ment and Public Works, Minority Staff Re-
port, A Look Ahead to EPA Regulations for
2013 (Oct. 2012), http://cnsnews.com/sites/
default/files/documents/A_Look_Ahead_to_EPA_
Regulations_for_2013.pdf (last visited Apr.
Bil SNEED esersenncsnsinestemmanietinmmnsnasnqnuninsnpatnenmanseemnees
Wendy E. Wagner, The Science Charade in
Toxic Risk Regulation, 95 Col. L. Rev. 1613
Gee ie eceesnnsissnnsensresensenenetentmesisenneeeemessansonensemensenen
1
OPINIONS BELOW
The opinion of the D.C. Circuit is reported at 684
F.3d 102 and reproduced at App. 1-103. The D.C.
Circuit’s orders denying panel rehearing and rehear-
ing en banc are reproduced at App. 104-63.
¢
JURISDICTION
The D.C. Circuit rendered its decision on June
26, 2012. App. 1. The court denied a timely petition
for rehearing and rehearing en banc on December 20,
2012. App. 104. This Court has jurisdiction under 28
U.S.C. § 1254(1).
.
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS
The Constitution of the United States provides,
in relevant part, that “[t]he judicial Power [of the
United States] shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall
be made, under their Authority ... [and] to Contro-
versies to which the United States shall be a party.”
U.S. Const. art. III, § 2, cl. 1.
The Constitution further provides, “All 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.
2
Relevant provisions of the Clean Air Act (“CAA”),
42 U.S.C. § 7401, et seq., are reproduced at App. 166-
68.
The rules challenged in the proceeding below are
found in the Joint Appendix (“JA”) of the proceeding
below, as follows:
Endangerment Finding: JA00001-0052
Denial of Reconsideration: JA00053-0092
Timing Rule: JA00308-0328
Tailpipe Rule: JA00666-1071
Tailoring Rule: JA01147-1242
®
STATEMENT OF THE CASE
On April 2, 2007, this Court decided Massachu-
setts v. EPA, 549 U.S. 497 (2007). In that case, this
Court held that the “sweeping definition” of “air pol-
lutant” in the Clean Air Act unambiguously includes
substances that contribute to climate change (also
known as greenhouse gases). 549 U.S. at 528. “Be-
cause greenhouse gases fit well within the Clean Air
Act’s capacious definition of ‘air pollutant,’ we hold
that EPA [the United States Environmental Protec-
tion Agency] has the statutory authority to regulate
the emission of such gases from new motor vehicles.”
549 U.S. at 532. This Court then went on to hold that
“li]f EPA makes a finding of endangerment, the Clean
Air Act requires the agency to regulate emissions of
the deleterious pollutant from new motor vehicles.”
549 U.S. at 533 (emphasis added). Finally, this Court
stated that, whatever actions EPA takes, “[w]Je hold
only that EPA must ground its reasons for action or
inaction in the statute.” 549 U.S. at 535. This Court
reserved the question “whether policy concerns can
inform EPA’s actions in the event that it makes such
3
a finding.” Jd. at 534-35.
Ostensibly relying on this Court’s opinion in
Massachusetts, EPA implemented in quick succession
four coordinated rules:
A finding that (1) six greenhouse gases
(“GHGs”) taken in combination endan-
ger both the public health and the public
welfare, and (2) emissions of these
GHGs from new motor vehicles contrib-
ute to the endangerment (the “Endan-
germent Finding,” JA00001-0052);
A rule concluding that the phrase “sub-
ject to regulation” in the CAA means
“each pollutant subject to either a provi-
sion in the CAA or regulation adopted by
EPA under the CAA that requires actual
control of emissions of that pollutant”
(the “Timing Rule,” JA00308-0328);
A rule issued jointly with the National
Highway Traffic Safety Administration
to regulate GHG tailpipe emissions from
light-duty vehicles (the “Tailpipe Rule,”
JA00666-1071); and
A rule to mitigate (or “tailor”) the knock-
on effects of the preceding three rules on
4
stationary sources, specifically to amend
the applicability criteria that determine
which stationary sources and modifica-
tion projects become subject to permit-
ting requirements for GHG emissions
under the PSD and Title V programs of
the CAA (the “Tailoring Rule,” JA01147-
1242).
Although seemingly disjointed in their promulga-
tion, taken together these rules create a comprehen-
sive, integrated program that gives EPA regulatory
jurisdiction over a breadth of human activity unparal-
leled in the history of American governance. Through
the Endangerment Finding, the Timing Rule, and the
Tailpipe Rule, EPA enacted a regulatory program that
covers essentially every human activity that uses any
appreciable amount of energy derived from fossil
fuels. According to EPA, these three rules triggered a
scope of stationary source regulation that, by EPA’s
own acknowledgement, would make up to six million
new stationary “sources” subject to EPA regulation,
compared to 14,000 under the pre-GHG rules. Tailoring
Rule, JA01147 at 01170. There would be more than
40,000 new permits required under the “Prevention of
Significant Deterioration” (“PSD”) program, com-
pared to approximately 300 such permits under prior
rules. Id. The scope of “source” facilities ensnared by
this new EPA oversight would be staggering: offices,
apartment buildings, retail establishments, govern-
ment buildings (presumably even courthouses), small
farms, and restaurants.
5
EPA admitted that its reading of the Clean Air
Act would create a federal regulatory scope beyond
anything Congress intended, would create “absurd
consequences,” and would be “impossible” to adminis-
ter. Id. at JA01167.
Rather than taking these admissions as a sign
that its reading of the Act was off-track, EPA lever-
aged the very absurdity of its interpretation as the
rationale for another rule, the Tailoring Rule. In the
Tailoring Rule, EPA “tailored” (that is, effectively
rewrote) the Clean Air Act to mitigate the absurdity it
had created with the first three rules. Among other
things, the Tailoring Rule changed the express nu-
merical thresholds set forth in the Clean Air Act that
define “major sources” subject to regulation. EPA
replaced the Act’s specific numeric standards (100 or
250 tons per year, depending on source) with alterna-
tive values that EPA deemed more suitable (75,000 or
100,000 tons per year, depending on whether the
source was already regulated). Id. at JA01150.' By
rewriting these numerical thresholds, EPA reduced
the number of sources subject to regulation from
what would have been six million to a few hundred.
Id. at JA01170.
Even under the “tailored” version of the Act
fabricated by EPA, these rules and those to follow will
' In establishing these new emission thresholds, EPA also
invented a new “air pollutant,” a “CO, — equivalent” or “CO.e,”
“the aggregate sum of six greenhouse gases (two of which are not
even emitted by automobiles) that constitute the pollutant that
will be subject to regulation.” Tailoring Rule, JA01147 at 01152.
6
impose costs on the U.S. economy that are staggering,
including billions of dollars in compliance and delay
costs.’ The extension of these rules will cost tens,
perhaps hundreds, of billions of dollars.*
Petitioners challenged all four of EPA’s rules
before the D.C. Circuit. Although the challenge
was complicated by the fact that EPA chose to
segregate the major components of the GHG program
into separate rules, Petitioners argued that EPA’s
four rules are closely interrelated and should
be reviewed together and that all four suffered
from fatal legal deficiencies, both individually and
* See, e.g., Comments of the Honorable Fred Upton (Chair-
man, Committee on the Environment and Commerce), U.S.
House of Representatives, quoted in Tom Schoenberg, EPA
Greenhouse-Gas Rules Upheld by U.S. Appeals Court, Bloomberg
News (Jun. 26, 2012), http:/Awww.bloomberg.com/news/2012-06-
26/epa-greenhouse-gas-rules-upheld-by-u-s-appeals-court.html
(last visited Apr. 10, 2013) (“EPA’s rules will impose billions of
dollars in compliance and delay costs and represent an unprece-
dented expansion of EPA authority that has the potential to
affect virtually every sector of the economy and touch every
household.”).
* United States Senate Committee on Environment and
Public Works, Minority Staff Report, A Look Ahead to EPA
Regulations for 2013 (Oct. 2012), http://cnsnews.com/sites/
default/files/documents/A_Look_Ahead_to_EPA_Regulations_for_
2013.pdf (last visited Apr. 10, 2013) (“These rules will cost more
than $300 to $400 billion a year, and significantly raise the price
of gas at the pump and energy in the home. It’s not just coal
plants that will be affected: under the Clean Air Act (CAA),
churches, schools, restaurants, hospitals and farms will eventu-
ally be regulated.”).
7
collectively. On June 26, 2012, the D.C. Circuit
rejected all of Petitioners’ challenges. App. 1-103.
While the court’s opinion contains more than a dozen
holdings, those most salient to this petition are:
¢ Petitioners had not shown that EPA
failed to consider the scientific evidence
in a “rational manner.” Jd. at 40.
¢ The Tailpipe Rule survived all challeng-
es by Petitioners: EPA was not obliged to
consider the absurd consequences on
stationary sources before issuing the
rule (id. at 49); there was no require-
ment that EPA’s rule “meaningfully ad-
dress” the problem that supposedly led
to its promulgation (id. at 53); and EPA
was not obliged to consider all costs (in-
cluding stationary source costs) caused
by issuance of the rule. Jd. at 54.
¢ Petitioners had “forfeited” any challenge
to EPA’s regulation of stationary sources
under the Title V program. Id. at 73-74.
e EPA was correct in concluding that regu-
lation of stationary sources was compelled
under the Act when emissions from mo-
bile sources were subject to regulation,
* In addition, as part of the underlying administrative pro-
ceeding, Petitioners had asked EPA to reconsider the Endangerment
Finding. EPA's denial of the Petition for Reconsideration was also
the subject of a petition for review to the D.C. Circuit. See De-
nial of Reconsideration, JA00053-0092; Joint Opening Brief of
Non-State Petitioners and Supporting Intervenors (Case No. 10-
1239, Doc. No. 1341737, Nov. 14, 2011).
8
and there were no other interpretations
available under the Act. Id. at 89-90.
e Petitioners lacked standing to challenge
the Timing and Tailoring Rules. Id. at
96-97.
Petitioners timely filed motions for rehearing,
and on December 20, 2012, the court denied those
motions, with Judges Brown and Kavanaugh dissent-
ing. App. 104-63.
. —_—
REASONS FOR GRANTING THE PETITION
As Judge Kavanaugh noted in his dissent from
the D.C. Circuit’s denial of rehearing en banc, this
case “is plainly one of exceptional importance.” App.
139. The panel below agreed: “The underlying policy
questions and the outcome of this case are undoubt-
edly matters of exceptional importance.” Jd. at 111.
Judge Kavanaugh went on to describe the EPA regu-
lations at issue as “the most burdensome, costly, far-
reaching program ever adopted by a United States
regulatory agency” (id. at 139), and further stated,
“EPA's interpretation will impose enormous costs on
tens of thousands of American businesses, with cor-
responding effects on American jobs and workers; on
many American homeowners who move into new homes
or plan other home construction projects; and on the
U.S. economy more generally.” Id. at 149. Judge
Brown, in her dissent, made a related point: “The real
absurdity is that this unprecedented expansion of
regulatory control, this epic overreach, may very well
9
do more damage to the wellbeing of Americans than
GHGs could ever do.” Id. at 127.’
Against this backdrop of unprecedented regula-
tory expansion, which will produce crushing economic
burdens and no detectable benefits, certiorari should
be granted for four related reasons:
1. The conclusions of the EPA’s Endanger-
ment Finding are irrational and cannot
support such a dramatic expansion of
regulatory authority;
2. The Timing and Tailoring Rules are
fundamentally contrary to the express
terms of the Clean Air Act and the
acknowledged intent of Congress;
3. The D.C. Circuit erred in finding that
none of the Petitioners had standing to
challenge the Timing and Tailoring
Rules; and
4. This case portends an unconstitutional
and dangerous shift in the balance of
power from the Legislative Branch to
the Executive Branch.
* See also note 3 to Judge Brown’s opinion (citing Joint Reply
Brief for Non-State Petitioners and Supporting Intervenors at
*1, (Case No. 09-1322, Doc. No. 1341738 (Nov. 14, 2011)): “Nor
does [EPA] dispute that the new rules will impose massive
burdens on a struggling economy, or that its program of vehicle
standards will affect global mean temperatures by no more than
0.01 degree Celsius by 2100.” App. 127 (emphasis in original).
10
I. EPA’s conclusions in the Endangerment
Finding are irrational and cannot support
such a dramatic expansion of regulatory
authority.
In making the Endangerment Finding, EPA
simply adopted the conclusions of the Intergovern-
mental Panel on Climate Change (“IPCC”) that not
only were human GHG emissions a cause of atmos-
pheric warming in the second half of the twentieth
century, but that it is “90-99% certain” that humans
caused “most” of that warming.” The legal deficiency
in this conclusion is that, given the current state of
science, it is irrational (and therefore reversible) to
make this conclusion with such certitude.
In adopting its conclusion verbatim from the
IPCC, EPA claimed to rely on “three lines of evi-
dence”:
1. Temperature records;
2. Physical understanding of climate; and
3. Computer models of the climate system,
which are based on the claimed physical
understanding.
See JA00029.
* According to EPA, “most” of the temperature increase in
the second half of the twentieth century is “very likely” due to
anthropogenic GHG emissions (JA03343), with “very likely”
defined to mean “90 to 99% likely.” App. 171, JA03355.
11
Petitioners demonstrated, with record evidence
drawn primarily from the same assessment literature
on which EPA relies, that each of these three lines of
evidence is so weak and inconclusive that EPA’s
purported finding of “90-99% certain{ty]” meets the
legal standard for vacatur of a rule that is arbitrary
and capricious.’ 42 U.S.C. § 7607(d 9A).
As to the first line of evidence, EPA claimed that
the twentieth century had witnessed an “unusual”
rise in average global temperature, one that suppos-
edly could not be explained by natural variability, and
one that therefore demanded an anthropogenic ex-
planation. The scientific evidence, however, shows
otherwise:
¢ By EPA’s own acknowledgement, there
has been no global warming in recent
years. Brief for Respondents at 54 (Case
No. 10-1035, Doc. No. 1324992, Aug. 18,
2011) (“temperatures have not risen
steadily over the last 10-15 years”).
¢ During the last documented warming
period, the measured warming was
regional, not global; the Northern
Hemisphere warmed, the tropics had no
trend, and Antarctica cooled. App. 172,
JA02166; App. 173, JA05120.
" This Court has not endorsed any particular view on the
complicated issues related to emissions of GHGs and global
warming. American Electric Power Co. v. Connecticut, 131 S. Ct.
2527, 2533 n.2 (2011).
12
¢ Moreover, the regional warming that did
occur in various areas of the globe dur-
ing the last documented warming period
was not anomalous in climate history
and was well within the normal range
of historical variability. App. 175-76,
JA02617 (Arctic); App. 177, JA01283;
App. 178, JA05139 (US); JA05263-5264
(merely “plausible” that current tem-
peratures are warmer than the Medieval
Warm Period).
¢ While CO, has consistently trended up-
ward, temperatures have not. Rather,
there was a thirty-year period of cooling
from the 1940s to the late 1970s, fol-
lowed by twenty-one years of warming,
followed by sixteen years of no global
trend.° Over the second half of the
twentieth century, there was no con-
sistent warming. App. 180, JA02587.
* David Rose, Global warming stopped 16 years ago, reveals
Met Office report quietly released ... and here is the chart to
prove it, MailOnline (UK), Oct. 13, 2012, http://-www.dailymail.
co.uk/sciencetech/article-2217286/Global-warming-stopped-16-years-
ago-reveals-Met-Office-report-quietly-released-chart-prove-it.html
(last visited Apr. 10, 2013), depicting data from Met Office
Hadley Centre observations datasets, http://www.metoffice.gov.uk/
hadobs/hadcrut// (last visited Apr. 10, 2013); see also A Sensitive
Matter, The Economist, Mar. 30, 2013, http://www.economist.
com/news/science-and-technology/21574461-chimate-may-be-heating-
up-less-response-greenhouse-gas-emissions (last visited Apr. 15,
2013).
13
Therefore, the temperature line of evidence is far
too equivocal to lend any logical support to EPA’s over-
all finding to a 90-99% degree of certainty.
There are equally profound deficiencies in EPA’s
second line of evidence: the physical understanding of
climate. If EPA’s understanding of the effects of GHGs
were correct, the very same causal factors supposedly
responsible for anthropogenic global warming would
result in certain observable physical indicators. In
particular, EPA’s physical understanding predicts a
distinctive “hot spot” in the tropical upper troposphere.
Fig. 1.3, App. 181; Fig. 1.9(f), JA05030. However, that
“hot spot” is nowhere to be found. Multiple independ-
ent sets of measurements on diverse instrument
platforms maintained by independent teams of scien-
tists going back more than 40 years and comprising
many millions of measurements all tell a consistent
story — there is no hot spot as predicted by EPA's
theory. App. 182, JA05118. The very assessment litera-
ture on which EPA relies acknowledges that this empiri-
cal refutation of EPA's theory of climate is a “potentially
serious inconsistency.”
* United States Climate Change Science Program, Tempera-
ture Trends in the Lower Atmosphere, Steps for Understanding
and Reconciling Differences, Synthesis and Assessment Product
1.1, Temperature Trends in the Lower Atmosphere, Steps for
Reconciling and Understanding Differences, http://downloads.
globalchange.gov/sap/sap1-1/sap1-1-final-all.pdf (last visited Apr.
10, 2013).
14
Thus, EPA’s second line of evidence does not
support its high-certainty finding.
The validity of the third line of evidence, the
climate models on which EPA relies, has been discred-
ited by a panoply of failed predictions. Most notably,
these models erroneously predicted steadily increas-
ing global average surface temperature with increasing
GHG concentrations. App. 183, JA02584. Numerous
other failed predictions can be amassed.” Even
IPCC’s lead scientists have acknowledged that the
models and physical understanding on which they are
based are hopelessly inadequate: “The fact is that we
can’t account for the lack of warming at the moment
and it is a travesty that we can’t.” JA04309. See
Sierra Club v. Costle, 657 F.2d 298, 333 (D.C. Cir.
1981), rev’d on other grounds, 463 U.S. 680 (1983)
(while computer modeling “is a useful and often es-
sential tool,” an agency “must sufficiently explain the
assumptions and methodology used in preparing the
model” and must “provide a complete analytic defense
of its model (and) respond to each objection with a
For example, IPCC AR4 WG1 §8.4.7 explains that
“serious systematic errors in both the simulated mean climate
and the natural variability persist” in attempts to model the
E] Nifio Southern Oscillation. Intergovernmental Panel on Climate
Change, Fourth Assessment Report: Climate Change 2007,
Working Group I: The Physical Science Basis, 8.4.7 El Niny —
Southern Oscillation, http://www.ipcc.ch/publications_and_data/
ar4/wg l/en/ch8s8-4-7.html (last visited Apr. 10, 2013). '
15
reasoned presentation.”) (emphasis added) (internal
quotation marks omitted). There must be “a rational
connection between the factual inputs, modeling
assumptions, modeling results and conclusions drawn
from these results.” Id. See also Owner-Operators In-
dependent Drivers Ass’n v. FMCSA, 494 F.3d 188,
203-05 (D.C. Cir. 2007).
In short, EPA’s three lines of evidence are either
weak and equivocal or outright invalid: There was no
consistent trend of “global” warming in the second
half of the twentieth century, nor any global warming
in the last 16 years, and the regional warming that
did occur was not anomalous. EPA’s supposed physi-
cal understanding of GHG effects in the atmosphere
is contradicted by copious empirical evidence, and the
models on which EPA relies have proven to be wrong
in many of their most important predictions, includ-
ing current temperatures. As a result, it was irra-
tional, arbitrary, and capricious for EPA to conclude
that it was “90-99% certain” that, to the extent there
has been any global warming in the second half of the
twentieth century, man is the cause of most of it."
" In a related challenge, Petitioners showed that not only is
EPA’s claim of near certainty irrational, EPA’s proposed remedy
is ineffective and pointless. EPA admitted that the rule will, at
most, reduce global temperatures by an immeasurable 0.006-
0.015°C over the next century and will reduce global sea rise by
an equally undetectable 0.06-0.14 centimeters. Tailpipe Rule,
JA00666 at 00838. Petitioners argued that the Tailpipe Rule
was therefore arbitrary and capricious for several reasons,
including, first, the self-evident conclusion that any rule that
(Continued on following page)
16
An immense expansion of the administrative
state — of which these rules are but the first step” —
thus rests upon an arbitrary and irrational founda-
tion. But the D.C. Circuit deferred entirely and thus
improperly to EPA on the “science” issues. While
Petitioners acknowledge that some deference to the
agency's judgment about scientific matters is appro-
priate, it is also true that deference, like scrutiny, can
be carried too far. The D.C. Circuit gave “extreme”
deference to EPA’s Endangerment Finding. App. 35.
has no discernible effect on the problem it addresses is arbitrary
by definition, and second, it is irrational for EPA to argue that it
is pursuing a solution “one step at a time,” or that “every little
bit helps,” since the impossibility of empirical verification means
that whether the rule has actually produced a “step” is inherently
unknowable. Joint Opening Brief of Non-State Petitioners and
Supporting Intervenors (Case No. 10-1094, Doc. No. 1311526,
Jun. 3, 2011).
* Since launching the rules at issue here, ))”A has promul-
gated GHG tailpipe standards for heavy-duty vehicles. Green-
house Gas Emissions Standards and Fuel Efficiency Standards
for Medium- and Heavy-Duty Engines and Vehicles; Final Rule,
76 Fed. Reg. 57,105 (Sep. 15, 2011). EPA has also published a
proposed rule establishing New Source Performance Standards
for power plants, citing the Section 202 mobile source Endanger-
ment Finding as legal justification. Standards of Performance for
Greenhouse Gas Emissions for New Stationary Sources: Electric
Utility Generating Units; Proposed Rule, 77 Fed. Reg. 22,391,
22,413 (Apr. 13, 2012). The Endangerment Finding has also
prompted regulatory proceedings under other federal laws, such
as the National Environmental Policy Act, State and regional
rulemakings, and private tort litigation. See, e.g., WildEarth
Guardians v. Salazar, 880 F. Supp. 2d 77 (D.D.C. 2012) (chal-
lenge to coal development leases in Powder River Basin based on
alleged global warming effects), appeal docketed, No. 12-5300
(D.C. Cir. Sep. 26, 2012).
17
“Extreme” deference on scientific issues derogates
the role of the courts, replacing judicial review, a key
restraint on the aggrandizing tendencies of the ad-
ministrative state, with nothing more than a rubber
stamp. It trains agencies to camouflage their policy
preferences as “science” to shield them from judicial
review. See Wendy E. Wagner, The Science Charade in
Toxic Risk Regulation, 95 Col. L. Rev. 1613 (1995);
Emily Hammond Meazell, Super Deference, the Sci-
ence Obsession, and Judicial Review as Translation of
Agency Science, 109 Mich. L. Rev. 733 (2011).
The D.C. Circuit was plainly reluctant to take on
any meaningful review of the science behind the
Endangerment Finding. Not one of Petitioners’ actual
science arguments was even mentioned by the court
in its opinion. Indeed, it is as if Petitioners had not
raised any questions about the underlying science at
all. The specific defects in EPA’s three lines of evi-
dence identified by Petitioners, and the irrationality
of EPA’s basing such a high certainty finding on such
weak premises, should have received a “searching
and careful” evaluation from the court, instead of a
free pass. Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 416 (1971). The court should have
taken a hard look at the temperature records, the
empirical evidence, and the validity of the models to
determine whether EPA’s claims of near-certainty
could survive even a deferential standard of review.
18
Il. The Timing and Tailoring Rules are fun-
damentally contrary to the express terms
of the Clean Air Act and the acknowl-
edged intent of Congress.
Even without EPA’s irrational certitude, the core
analytical and legal deficiency of EPA’s entire GHG
program arises from the combined effect of the Tim-
ing and Tailoring Rules. Through these two rules,
EPA uses a convoluted, strained, and implausible
reading of the Clean Air Act to conclude, despite
substantial evidence to the contrary, that Congress
actually managed to conceal a vast multi-billion dol-
lar regulatory program in several previously unno-
ticed subparagraphs of the Act. In essence, EPA's
GHG program depends upon the assumption that
Congress actually succeeded in hiding an elephant in
a mouse hole.
The path to EPA’s outcome is tortured. At the
outset, EPA used the Timing Rule to invoke jurisdic-
tion over GHG emissions from stationary sources on
the grounds that any substance regulated under any
provision of the Clean Air Act must automatically and
inevitably be regulated under all provisions of the
Clean Air Act. That interpretation, however, produced
a scope of regulation that even EPA had to admit was
“absurd” and administratively “impossible.” So,
having launched an absurd and impossible regulatory
program under its own interpretation of the CAA,
EPA used the Tailoring Rule to rewrite the statute in
order to dial back the self-inflicted absurdity to a
19
level that the agency judged would be more adminis-
tratively and politically tolerable.
This misguided regulatory framework stands on
two flimsy footings: first, a reading of the Clean Air
Act that was contrary to its express terms and failed
to comport with ordinary rules of statutory interpre-
tation, and, second, an overly literal reading of this
Court’s holding in Massachusetts. Neither footing can
bear the weight placed upon it.
1. The first error is that the regulatory program
promulgated by EPA is inconsistent with the express
terms of the Clean Air Act. Indeed, EPA conceded that
it was ignoring congressional intent and purpose:
“(T]hese results are not consistent with — and, indeed,
undermine — congressional purposes set forth for PSD
and title V provisions.” Tailoring Rule, JA01147 at
01181. EPA further concluded that “applying PSD
requirements literally to GHG sources at the present
time ... would result in a program that would have
been unrecognizable to the Congress that designed
PSD.” Id. at 01189.
In this respect, at least, EPA was right: EPA’s
program to regulate stationary sources of GHGs
cannot be reconciled with a proper reading of the Act.
EPA erred in concluding that it could fix this problem
by “tailoring” the provisions of the Act itself. In point
of fact, no “tailoring” can fix the underlying problem:
GHGs cannot be “air pollutants” for stationary
sources because the statutory mechanisms for regu-
lating emissions of air pollutants from stationary
20
sources cannot be lawfully or logically applied to
GHG emissions:
e PSD provisions apply only to areas des-
ignated under Clean Air Act § 107(d), 42
U.S.C. § 7407(d) (App. 164), that meet
ambient air quality standards. There are
no ambient air quality standards for
GHGs, nor can there be because the re-
gionally focused PSD provisions cannot
logically be applied to what EPA con-
tends are globally “well-mixed” pollu-
tants like GHGs.
¢ Congress established the 100/250 tons
per year thresholds for those “major
sources” in the PSD program requiring
permits on the expectation that the
permitting program would apply to a
“relatively small number of large indus-
trial sources.” Tailoring Rule, JA01147
at 01189. The number of sources that
would be subject to regulation under the
EPA’s GHG program, however, is any-
thing but a “relatively small number.”
e Congress expressly specified an emission
threshold for sources that must obtain a
Title V permit at 100 tons per year.
Clean Air Act section 501, 42 U.S.C.
§ 7661, App. 167. Even on Savile Row, no
one could conceivably “tailor” 100 to
mean 75,000. Beyond setting an express
numerical threshold, Congress expressly
forbade EPA to deviate from that thresh-
old. Clean Air Act § 502(a), 42 U.S.C.
21
§ 7661a, App. 167-68. But by EPA’s own
admission, these mandatory statutory
thresholds (100 or 250 toms per year),
with no possibility of exception, lead to
absurd results when applied to emis-
sions of GHGs from stationary sources.
At these levels, more than six million
sources would suddenly be subject to
regulation,” an interpretation all ac-
knowledge is far outside the bounds of
congressional intent.
For both the PSD and Title V programs, EPA
admits that regulating GHGs at the statutory thresh-
olds would create absurd and impossible regulatory
requirements (Tailoring Rule, JA01147 at 01150-
01151), an admission Petitioners contend invalidates
the statutory construction that produced this result.
“ The D.C. Circuit held that “none of Petitioners’ alterna-
tive interpretations applies to Title V” and therefore Petitioners
“forfeited any challenges to EPA’s greenhouse gas-inclusive in-
terpretation of Title V.” App. 73-74. It is true that Petitioners did
offer three plausible interpretations of the CAA that would not
produce EPA’s “absurd” results when applied to the PSD pro-
gram. However, Petitioners never limited their arguments solely
to PSD. Petitioners specifically argued (1) that Congress never
envisaged that the Title V program would be applied to GHGs
(Joint Reply Brief of Non-State Petitioners and Supporting
Intervenors at 1 (Case No. 10-1131, Doc. No. 1342386, Nov. 16,
2011)), (2) that regulating GHGs as “air pollutants” for station-
ary sources would unlawfully subject millions of sources to Title
V requirements (id. at 27), (3) that Petitioners’ Title V argu-
ments were timely made (id. at 31), and (4) that the Tailoring
Rule violated the prohibition in Section 502(a) on exempting
major sources from Title V. Jd. at 35.
But instead of drawing the obvious conclusion that its
reading of the Act was wrong, EPA acted to “tailor”
22
the “inconvenient truth” out of existence.
EPA justified this regulatory frolic and detour by
arguing that there was no other possible interpreta-
tion of the Act that would permit it to do otherwise.
But the Clean Air Act does not compel its own repu-
diation, and there are reasonable alternative inter-
pretations that do no violence to the Act’s terms.
For example, the Clean Air Act’s defini-
tion of a “major emitting facility” in the
PSD program logically means a facility
that emits more than the threshold
quantity of pollutants regulated under
that program. In other words, the term
“air pollutant” for the PSD program means
a “pollutant” for which there is a “Na-
tional Ambient Air Quality Standard”
(“NAAQS”). Joint Opening Brief of Non-
State Petitioners and Supporting Inter-
venors at 22 (Case No. 10-1083, Doc. No.
1314204, Jun. 20, 2011).
As another example, Petitioners showed
that the term “air pollutant,” whatever
its meaning for mobile sources, should
have a meaning for PSD purposes con-
sistent with the entirety of the PSD pro-
gram. For example, under Section 165(a)
of the Act (preconstruction requirements)
(42 U.S.C. § 7475, App. 166), permits
are required only for major sources in
“any area to which this part applies.”
“(T)his part” applies to areas that are in
23
attainment (or unclassified) for the NAAQS.
Clean Air Act § 161, 42 U.S.C. § 7471,
App. 165. In other words, the PSD provi-
sions make no sense except in terms of
the attainment/nons‘ttainment status of
specific areas, for which a NAAQS has
been established for specific criteria pol-
lutants.
There are other reasonable interpretations of the
phrase “air pollutant” and other permissible construc-
tions of the stationary source provisions that simi-
larly do not lead to absurd, impossible outcomes. The
key point is that EPA was faced with several possible
interpretations of the term “air pollutant” in the
context of stationary sources, yet chose the only inter-
pretation that led to absurd results, was concededly
contrary to clear congressional intent, and radically
expanded EPA’s regulatory authority. That, Petition-
ers argued, rendered the interpretation unlawful.
2. The second deficiency is that the havoc
wreaked on the Clean Air Act arose from an overly
literal, and erroneous, reading of this Court’s holding
in Massachusetts. This Court held in Massachusetts
that GHGs met the “capacious” definition of “air
pollutant” for purposes of emissions from mobile
sources. 549 U.S. at 532. What was not before this
Court and what the Court did not decide in Massa-
chusetts was whether the definition of “air pollutant”
encompassed GHGs from stationary sources under
the PSD and Title V permitting programs.
24
Nevertheless, EPA read the Court’s holding as a
mandate to expand the regulation of GHGs from
mobile sources to stationary sources. In issuing the
Timing Rule, EPA essentially concluded that this
Court’s holding in Massachusetts established an “in-
for-one/in-for-all” definition of “air pollutant,” such
that if GHGs are pollutants subject to regulation for
mobile sources, GHGs must be ipso facto an air
pollutant everywhere else in the Act, no matter how
absurd that outcome. “We do not believe that this
term is ambiguous wit! respect to the need to cover
GHG sources under either the PSD or title V pro-
gram.” Tailoring Rule, JA01147 at 01182 n.31. This
enormously consequential result uJtimately rests on a
reading of the definition of “air pollutant” so broad
that even air itself is an “air pollutant.” Such an
incontinent meaning cannot be read as a mandate to
override the meticulous statutory architecture of
stationary source regulation.
This Court’s decision in Massachusetts did not
compel EPA to apply the same definition of “air
pollutant” everywhere the term occurred in the Act.
Nor did it compel EPA to read “subject to regulation”
to require regulations that are obviously contrary to
congressional intent, or to rewrite the statute to pro-
vide more convenient terms. It is axiomatic that any
regulation “contrary to clear congressional intent” is
unlawful. Chevron, U.S.A., Inc. v. NRDC, Inc., 467
U.S. 837, 843 n.9 (1984). If applying the Massachu-
setts definition of “air pollutant” to stationary sources
leads to an outcome “contrary to clear congressional
25
intent,” EPA should have opted for another permissible
interpretation of the statute. This Court directed EPA
to comply with the statute, not to “tailor” it.
EPA’s error is similar to that presented in Ala-
bama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.
1980), where EPA had defined “major emitting facil-
ity” so broadly that it had no choice but to “tailor” the
definition to exempt certain sources from PSD review.
There, the D.C. Circuit held that EPA had no authori-
ty to “tailor” the statute to exempt certain sources,
and EPA’s only lawful choice was to interpret the
statute to avoid the overbreadth in the first place. Jd.
at 353, 356-57.
It is relatively common in complex statutes for
the same term to apply differently in different
contexts. See, e.g., Environmental Defense v. Duke
Energy, 549 U.S. 561, 574 (2007) (“the natural pre-
sumption that identical words used in different parts
of the same act are intended to have the same mean-
ing is not rigid and readily yields whenever there is
such variation in the connection in which the words
are used as reasonably to warrant the conclusion that
they were employed in different parts of the act with
different intent.”). Nothing in Massachusetts com-
pelled EPA to disregard this ordinary rule of statu-
tory interpretation.“
“* Not even EPA thinks that the definition of “air pollutant”
in the Act should be read with mindless literalism. EPA itself ad-
mits that the definition of “air pollutant” (namely “any physical
(Continued on following page)
26
Fundamentally, if an agency’s interpretation of a
statute or of a controlling court decision produces an
absurd outcome, the first and most obvious conclusion
is that the agency, not Congress and not this Court,
has gone awry. That should have been all the more
apparent in this case. Here, the putative absurdity
arose not from anything in the Clean Air Act itself.
The stationary source provisions of the Act have
operated just fine for several decades. Nor did this
Court create the absurdity in Massachusetts, where
the Court made no determination respecting station-
ary sources, since the issue was not before the Court.
Rather, the absurdity arose only from the way EPA
chose to read the Act. As Judge Kavanaugh said, the
ultimate clincher in this case is one simple point: EPA
chose an admittedly absurd reading over a perfectly
natural reading of the relevant statutory text.
or chemical substance emitted into air”) cannot possibly be
taken literally; doing so, for example, would require PSD pre-
construction permits for substances that are utterly harmless
and not regulated under the Clean Air Act at all. For that
reason, even EPA applies a limiting construction to the term “air
pollutant,” meaning not “any physical or chemical substance
emitted into air,” but only those substances “regulated under the
Act.” See D.C. Circuit Court opinion, App. 69-70. Therefore, it is
beyond dispute that some kind of context-dependent reading to
the term “air pollutant” must be applied. The issue is how far
the agency may go in applying context. EPA ignores a rational
approach to context and necessarily trips over itself, ending up
with absurd results.
27
Itt. The D.C. Circuit erred in concluding that
none of the Petitioners had standing to
challenge the Timing and Tailoring Rules.
To appreciate the error of the holding that Peti-
tioners lacked standing to challenge the Timing and
Tailoring Rules, it is useful to consider how EPA
partitioned its GHG rules to immunize this massive
regulatory program from judicial review. The ulti-
mate impact on stationary sources arose not directly
from the Endangerment Finding or the Tailpipe
Rule’s regulation of mobile sources, but from the
follow-on effects of the Timing Rule (which supposed-
ly triggered the regulation of emissions from station-
ary sources) and the Tailoring Rule (which used the
“absurdity” rationale to permit the exercise of regula-
tory jurisdiction far beyond congressiona! authoriza-
tion). But EPA asserted that no one had standing to
challenge these rules, even though these rules pro-
vided the mechanism by which Petitioners’ harms
arose. Specifically, EPA asserted that no one was
aggrieved by the Timing Rule, since all it did was
restate a long-standing interpretation (long-since
past challenging); and that no one was aggrieved by
the Tailoring Rule, since all it did was relax otherwise
applicable standards, and no one can possibly be
harmed by the relaxation of regulatory obligations that
would otherwise apply. Final Brief for Respondents at
76-96 (Case No. 10-1083, Doc. No. 1347529, Dec. 14,
2011). In sum, EPA claimed that it could launch the
most massive regulatory program in American his-
tory, imposing billions of dollars in compliance costs
28
on the U.S. economy and burdening millions of Amer-
ican citizens in the process, and no one had standing
to challenge the program.
This argument should not have detained the D.C.
Circuit, but the court nevertheless held that none of
the Petitioners had standing to challenge the Timing
and Tailoring Rules. The court held that Petitioners
had failed to establish an “injury in fact” resulting
from these rules. App. 96. In support of this conclu-
sion, the court stated that Petitioners’ harms arise
“not because of anything EPA did in the Timing and
Tailoring Rules, but by the automatic operation of the
statute.” Id. at 96-97. “Indeed,” the court continued,
“the Timing and Tailoring Rules actually mitigate
Petitioners’ purported injuries.” Jd. at 97.
This error demands certiorari review by this Court
for several reasons. First, the so-called “automatic
operation of the statute” is not automatic at all —
Petitioners’ harms result instead from EPA’s deliberate
choice to read the statute to yield absurd results that
are contrary to congressional intent instead of a per-
fectly natural reading that does not. Second, the court’s
holding ensured an inadequate piecemeal review of
EPA’s GHG program, allowing EPA to evade scrutiny
of that program through a justiciability shell game.
Finally, the decision below on standing conflicts
with the precedents of this Court. The D.C. Circuit’s
conclusion on standing assumed that Petitioners had
already lost on their challenges to the other rules. In
essence, the court held that because it found no basis
29
for overturning the Endangerment Finding or Tail-
pipe Rule, Petitioners had no standing to challenge a
relaxation of the resulting regulatory requirements
for stationary sources. Under clear precedent from
this Court, though, this is not the proper test. There
are only three prerequisites for standing: An injury in
fact that is concrete and actual; causation — a fairly
traceable connection between the injury and the
conduct of the defendant; and redressability -— a
likelihood that the requested relief will redress the
alleged injury. Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992). Petitioners undeniably satisfy these tests
when EPA’s GHG program is considered as a whole.
The court erred by artificially segmenting its analysis
of the legality of the program into separate compo-
nents and by deciding the merits of challenges to
some components before considering petitioners’
standing to challenge others. But the components are
inextricably linked — a positive Endangerment Finding
inevitably led to mobile source regulation under the
Tailpipe Rule, which (via the Timing Rule) inevitably
led to stationary source regulation. That being so, the
court’s determination on the merits of the Endanger-
ment Finding and the Tailpipe Rule cannot control
standing to challenge the inevitable consequences of
those results for stationary sources. In essence, the
court erroneously allowed a merits determination to
control standing. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 91-92 (1998) (whether a
cause of action exists goes to the merits of the case and
not standing). The D.C. Circuit’s approach improperly
denied effective judicial review of the full program.
30
IV. This case portends an unconstitutional!
and dangerous shift in the balance of
power from the Legislative Branch to the
Executive Branch.
Both the scope and the method of EPA’s dramatic
expansion of its regulatory authority warrant certio-
rari review because they implicate fundamental
issues of governance and separation of powers. Judge
Kavanaugh captured the point in his dissent from the
Order denying rehearing:
[I}f this case stands as a precedent that in-
fluences other agency decisionmaking, the
future consequences likewise could be sig-
nificant: Agencies presumably could adopt
absurd or otherwise unreasonable interpre-
tations of statutory provisions and then edit
other statutory provisions to mitigate the
unreasonableness. Allowing agencies to exer-
cise that kind of statutory re-writing author-
ity could significantly enhance the Executive
Branch’s power at the expense of Congress’s
and thereby alter the relative balance of
powers in the administrative process.
App. 144-45. Agencies that can re-write or ignore
statutes that stand in their way are essentially
unconstrained by law, resulting in an unbridled
rearrangement of power contrary to the constitutional
order.
As Judge Kavanaugh correctly noted, the shift
in the balance of power authorized by the D.C. Cir-
cuit goes fur beyond this one case. Congress did not
31
authorize EPA to go forth and do good — Congress
specified particular areas where it deemed regulation
to be warranted. Regulating GHG emissions from
stationary sources was obviously not one of them,
with even EPA recognizing the “absurd” results
that such regulation would produce. Yet the D.C.
Circuit has validated an assertion of agency power
that clearly goes well beyond the congressional dele-
gation of administrative authority. Such an outcome
portends dangers to the American system of govern-
ment that dwarf the serious implications under the
Clean Air Act.
Both EPA and the D.C. Circuit voint to this
Court’s opinion in Massachusetts as somehow man-
dating this outcome. This petition, therefore, presents
the opportunity for this Court to specify exactly what
Massachusetts did and did not authorize with re-
spect to EPA’s regulation of GHGs under the Clean
Air Act. That clarification will likely entail revisiting
the application of FDA v. Brown & Williamson, 529
U.S. 120 (2000), to the regulation of GHGs under the
CAA. In Massachusetts, this Court distinguished
Brown & Williamson in affirming EPA’s power to
regulate GHG emissions from mobile sources under the
CAA for two reasons: (1) jurisdiction over GHGs
would not lead to “extreme measures” (549 U.S. at
530) and was not counterintuitive (id. at 531); and
(2) there was no unbroken series of congressional
enactments incompatible wi‘h EPA authority to regu-
late GHGs under the Act. Id.
32
However, in light of EPA’s GHG program as
promulgated since Massachusetts, both reasons for
distinguishing Brown & Williamson should be revis-
ited with a fresh perspective. EPA has asserted that
Massachusetts forced it to implement measures that
even EPA acknowledges are “extreme” (or in EPA's
exact parlance, “absurd” and “impossible”) and that
are overtly contrary to how Congress intended the
Clean Air Act to operate for stationary sources. In
addition, the backdrop of congressional action and
inaction on GHGs for more than twenty years leads to
the imescapable conclusion that Congress did not
intend to grant EPA authority to regulate GHGs,
particularly for stationary sources. As pointed out in
the dissenting opinions of Judges Kavanaugh and
Brown, over the past several years, Congress has
repeatedly considered and refused to enact precisely
the kinds of GHG controls at issue here. In 2009, the
House of Representatives passed a global warming
bill, supported by the President, which failed in the
Senate. Numerous other bills have been introduced
over the years, but none has been passed into law. See
App. 161 n.5. In drafting the 1990 Clean Air Act
Amendments, Congress considered, and expressly
rejected, proposals authorizing EPA to regulate GHGs
under the CAA. By one estimate, Members of Con-
gress proposed more than 400 bills concerning GHGs
between 1990 and 2009. App. 119.
In other words, the history of congressional ac-
tion and inaction, when viewed in light of the absurd
33
consequences of applying GHG emission limitations
to stationary sources, makes it abundantly clear that
Congress did not intend for EPA to have the author-
ity to regulate emissions of GHGs from stationary
sources. In this broader context, as opposed to the
narrow definitional reading of the Act in Massa-
chusetts, the applicability of Brown & Williamson is
clear.
In essence, there are two analytical directions
presented by current circumstances. First, if this
Court was correct that the holding in Massachusetts
would not produce counterintuitive and extreme
consequences, then EPA and the D.C. Circuit misin-
terpreted Massachusetts and had no lawful basis to
approve regulations with plainly extreme and coun-
terintuitive consequences. Alternatively, if EPA and
the D.C. Circuit were correct that the regulation of
GHG emissions from stationary sources was com-
pelled by the holding in Massachusetts, then this
Court was wrong in assuming that no counterintui-
tive, extreme measures would result from its deci-
sion.” In either event, the profound importance of
‘* Both Judge Brown and Judge Kavanaugh identified this
tension between the course of EPA’s regulatory onslaught and
the assumption in Massachusetts that there would be no ex-
treme or counterintuitive consequences as a result of the
decision. As Judge Brown said, “{Bjound as I am by Massachu-
setts, I reluctantly concur with the Panel’s determination that
EPA may regulate GHGs in tailpipe emissions. But I do not
choose to go quietly. Because the most significant regulations of
recent memory rest on the shakiest of foundations, Part I of this
(Continued on following page)
34
this case, and the enormous and unprecedented
regulatory burdens inflicted by the rules at issue,
provide the strongest grounds for certiorari review.
This case presents an exceptionally important oppor-
tunity for this Court to revisit the question of whether
GHGs should be regulated under the Clean Air Act at
all and to clarify that nothing in Massachusetts, as
decided then or as clarified in this matter, mandates
an unconstitutional shift of power from Congress to
EPA.
If the program here is allowed to stand, it will
validate a rationale that creates an avenue for regu-
latory authority unprecedented in American history.
That cannot possibly be what this Court envisioned in
Massachusetts, so it is now appropriate for this Court
to grant the petition to clarify the boundaries be-
tween legislative and executive authority.
Admittedly, the arguments raised by Petitioners
suggest that under the only reasonable interpretation
of the CAA, emissions of GHGs from stationary
sources could be subject to no regulation at the pre-
sent time. And it would leave in place the messy
stalemate between a Congress that has declined to
act and an executive agency driven to address what
it believes to be an important problem. But such
statement engages Massachusetts’s interpretive shortcomings in
the hope that either Court or Congress will restore order to the
CAA.” App. 113.
35
dilemmas inhere in the nature of the American
system of government.
[W]hile a government of opposite and rival
interests may sometimes inhibit the smooth
functioning of administration ... [t]he
Framers recognized that, in the long term,
structural protections against abuse of power
were critical to preserving liberty. . . . [Global
warming] may be a pressing national prob-
lem, but a judiciary that licensed extra-
constitutional government with each issue of
comparable gravity would, in the long run,
be far worse.
Free Enterprise Fund v. Public Company Accounting
Oversight Board, 130 S. Ct. 3138, 3157 (2010) (inter-
nal quotation marks omitted).
°
CONCLUSION
In petitioning for a writ of certiorari in Massa-
chusetts, the State of Massachusetts asserted that
there can be no reasonable debate about the impor-
tance of climate change. In fact, there can be such a
debate. As shown above, EPA’s certitude is irrational,
the costs of the GHG regulations are immense, and
the benefits of any regulatory program are acknowl-
edged to be so de minimis that they are literally
undetectable. Any program with all costs and no
benefits is certainly worthy of debate.
There should be no debate, however, that our coun-
try must be governed with a respect for constitutional
36
separation of powers, congressional prerogatives, and
limitations on executive usurpations of legislative
power. These principles are of the greatest impor-
tance for the jurisprudence and role of this Court. The
rules at issue in this case pose a momentous threat
to those principles.
For these reasons, the petition for certiorari
should be granted.
EDWARD A. KAZMAREK
KAZMAREK GEIGER & LASETER LLP
One Securities Center
3490 Piedmont Road, N.E., Suite 350
Atlanta, GA 30305
(404) 812-0839
Co-Counsel for Southeastern
Legal Foundation, Inc.
Harry W. MACDOUGALD
CALDWELL & Watson, LLP
Two Ravinia Drive, Suite 1600
Atlanta, GA 30346
(404) 843-1956
Co-Counsel for Southeastern
Legal Foundation, Inc.
SAM KAZMAN
HANS BADER
COMPETITIVE ENTERPRISE
INSTITUTE, INC.
1899 L Street, N.W., Floor 12
Washington, DC 20036
(202) 331-1010
Co-Counsel for Competitive
Enterprise Institute, Inc.
April 19, 2013
Respectfully submitted,
SHANNON LEE GOESSLING
Counsel of Record
SOUTHEASTERN LEGAL
FOUNDATION, INC.
2255 Sewell Mill Road,
Suite 320
Marietta, GA 30062
(770) 977-2131
shannon@
southeasternlegal.org
Counsel for All Petitioners
STEVEN G. BRADBURY
DECHERT LLP
1900 K Street, N.W.
Washington, DC 20006
(202) 261-3483
Co-Counsel for Southeastern
Legal Foundation, Inc.
App. 1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued Feb. 28 and 29,2012 Decided June 26, 2012
No. 09-1322
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
V.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
STATE OF MICHIGAN, ET AL.,
INTERVENORS
Consolidated with 10-1024,10-1025, 10-1026,
10-1030, 10-1035, 10-1036, 10-1037, 10-1038,
10-1039, 10-1040, 10-1041, 10-1042, 10-1044,
10-1045, 10-1046, 10-1234, 10-1235, 10-1239,
10-1245, 10-1281, 10-1310, 10-1318, 10-1319,
10-1320, 10-1321
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Patrick R. Day, Harry W. MacDougald, and
Jeffrey Bossert Clark argued the causes for Non-
State Petitioners 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
App. 2
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, 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.
Parrish, 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 appear-
ances.
E. Duncan Getchell, Jr., Solicitor General, Office
of the Attorney General for the Commonwealth of
Virginia, 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
Delegation Issues. With him on the briefs were Ken-
neth 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,
App. 3
Deputy Attorney General for Civil Litigation, J. Reed
Clay, Jr., Specia’ 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
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.
App. 4
Cuccinelli, II, 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.
Christian J. Ward, Scott A. Keller, and April L.
Farris were on the brief for amici curiae Scientists in
support of Petitioners.
Derek Schmidt, Attorney General, Office of the
Attorney 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 Landmark Legal Foundation, et al. in support
of Petitioners.
Jon M. Lipshultz and Angeline Purdy, Attorneys,
U.S. Department of Justice, argued the causes for
respondent. With them on the brief were John Han-
non, Carol Holmes, and Steven Silverman, U.S.
Environmental 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
App. 5
Massachusetts, argued the cause for State and Envi-
ronmental 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,
Kathleen A. Kenealy, Senior Assistant Attorney
General, Marc N. Melnick and Nicholas Stern, Depu-
ty 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 Madi-
gan, Attorney General, Office of the Attorney General
for the State of Illinois, Gerald T. Karr, Assistant
Attorney General, Thomas J. Miller, Attorney Gen-
eral, 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
App. 6
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
Attorney General for the State of Oregon, Paul Lo-
gan, Assistant Attorney-in-Charge, Robert M.
McKenna, Attorney General, Office of the Attorney
General for the State of Washington, Leslie R.
Seffern, Assistant Attormey General, Peter F.
Kilmartin, Attorney General, Office of the Attorney
General for the State of Rhode Island, Gregory 5S.
Schultz, Special Assistant Attorney General, William
H. Sorrell, Attorney General, Office of the Attorney
General for the State of Vermont, Thea J. Schwartz,
Assistant Attorney General, Christopher King, Assis-
tant Corporation Counsel, 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 III, 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
appearance.
App. 7
No. 10-1073
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
V.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN FROZEN FOOD INSTITUTE, ET AL.,
INTERVENORS
Consolidated with 10-1083, 10-1099, 10-1109,
10-1110, 10-1114, 10-1118, 10-1119, 10-1120,
10-1122, 10-1123, 10-1124, 10-1125, 10-1126,
10-1127, 10-1128, 10-1129, 10-1131, 10-1132,
10-1145, 10-1147, 10-1148, 10-1199, 10-1200,
10-1201, 10-1202, 10-1203, 10-1206, 10-1207,
10-1208, 10-1210, 10-1211, 10-1212, 10-1213,
10-1216, 10-1218, 10-1219, 10-1220,
10-1221, 10-1222
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Jonathan F. Mitchell, Solicitor General, Office of
the Attorney General for the State of Texas, argued
the cause for State Petitioners and Supporting
Intervenor. With him on the briefs were Gregg Ab-
bott, Attorney General, Bill Cobb, Deputy Attorney
General, J. Reed Clay, Jr., Special Assistant and
Senior Counsel to the Attorney General, Michael P.
Murphy and James P. Sullivan, Assistant Solicitors
App. 8
General, Luther Strange, Attorney General, Office of
the Attorney General for the State of Alabama, Her-
man Robinson, Donald Trahan, Kathy M. Wright,
Gary C. Rikard, John Bruning, Attorney General,
Office of the Attorney General for the State of Ne-
braska, 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. Getchell, 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.
App. 9
Goess! ©, Harry W. MacDougald, William H. Lewis,
Jr., Ronaid J. Tenpas, Gordon R. Alphonso, Edward A.
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. Bur-
gess, 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, 0, Samuel B. Boxerman and
Leslie A. Hulse were on the brief for amici curiae the
Commonwealth of Kentucky and the American Chem-
istry Council in support of petitioners. Angus Mac-
beth entered an appearance.
Amanda Shafer Berman and Perry M. Rosen,
Attorneys, 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.
App. 10
Gunter, II and Michele L. Walter, Counsel, U.S.
Environmental Protection Agency, entered appear-
ances.
Sean H. Donahue and Michael J. Myers argued
the causes .or 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 Ill _nois, 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 Nicho-
las 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 Attor-
neys General, 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,
App. 11
Douglas F. Gansler, Attorney General, Office of the
Attorney General for the State of Maryland, Mary
Raivel, Deputy 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, 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.
App. 12
No. 10-1092
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
V.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
LANGBOARD, INC.-MDF, ET AL.,
INTERVENORS
Consolidated with 10-1094, 10-1134, 10-1143,
10-1144, 10-1152, 10-1156, 10-1158, 10-1159,
10-1160, 10-1161, 10-1162, 10-1163, 10-1164,
10-1166, 10-1182
On Petitions for Review of Final Actions
of the Environmental Protection Agency
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 Kazman, 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
Brownell, Norman W. Fichthorn, Henry V. Nickel,
Allison D. Wood, Ashley C. Parrish, Cynthia A.M.
App. 13
Stroman, Mark E. Nagle, Michael Higgins, Ellen
Steen, Timothy K. Webster, Roger R. Martella, Mat-
thew 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, Jona-
than F. Mitchell, Solicitor General, J. Reed Clay Jr.,
Special Assistant and Senior Counsel to the Attorney
General, Michael P. Murphy, Assistant Solicitor
General, Luther Strange, Attorney General, Office of
the Attorney General for the State of Alabama, Sam-
uel S. Olens, Attorney General, Office of the Attorney
General 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, Kathe-
rine J. Spohn, Special Counsel to the Attorney Gen-
eral, 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, II, Attorney General, Office of the
Attorney General for the Commonwealth of Virginia,
App. 14
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
Justice, argued the cause for respondents. With him
on the brief were John Hannon and Steven Silver-
man, Attorneys, U.S. Environmental Protection
Agency.
Raymond B. Ludwiszewski argued the cause for
intervenors 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 Cali-
fornia, argued the cause for intervenor State of Cali-
fornia. On the brief were Kamala D. Harris, Attorney
General, Kathleen A. Kenealy, Senior Assistant
Attorney General, Marc N. Melnick and Nicholas
Stern, Deputy Attorneys General, Sean H. Donahue,
Howard I. Fox, David S. Baron, Pamela Campos,
App. 15
Megan Ceronsky, Vickie L. Patton, Peter Zalzal,
Joseph R. Biden, II, Attorney General, Office of the
Attorney 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
App. 16
of Rhode Island, Gregory S. Schultz, Special Assistant
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 amicus
curtae Institute for Policy Integrity at New York
University School of Law in support of respondents.
App. 17
No. 10-1167
AMERICAN CHEMISTRY COUNCIL,
PETITIONER
V.
ENVIRONMENTAL PROTECTION AGENCY AND
LISA PEREZ JACKSON, ADMINISTRATOR,
U.S. ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA, ET AL.,
INTERVENORS
Consolidated with 10-1168, 10-1169, 10-1170,
10-1173, 10-1174, 10-1175, 10-1176, 10-1177,
10-1178, 10-1179, 10-1180
On Petitions for Review of a Final Action
of the Environmental Protection Agency
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,
Attorneys, U.S. Department of Justice, and Elliott
Zenick and Howard J. Hoffman, Counsel, U.S. Envi-
ronmental Protection Agency, were on the brief for
App. 18
respondents. Jon M. Lipshultz, Senior Counsel, U.S.
Department of Justice, entered and [sic] appearance.
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 respond-
ents.
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 Massachusetts v. EPA, 549 U.S. 497 (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 Endangerment Finding, in
which it determined that greenhouse gases may
“reasonably be anticipated to endanger public health
or welfare.” See 42 U.S.C. § 7521(a)X(1). 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 green-
house gases to obtain construction and operating
App. 19
permits. But because immediate regulation of all
such sources would result in overwhelming permit-
ting 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.
I.
We begin with a brief primer on greenhouse
gases. As their name suggests, when released into the
atmosphere, these gases act “like the ceiling of a
greenhouse, trapping solar energy and retarding the
escape of reflected heat.” Massachusetts v. EPA, 549
U.S. at 505. 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
App. 20
with a significant increase in the concentration of
[greenhouse gases] in the atmosphere.” Jd. at 504-05.
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 regulat-
ed as an “air pollutant” under the Clean Air Act
(“CAA”). Id. at 529. Squarely rejecting the contention
— then advanced by EPA — that “greenhouse gases
cannot be ‘air pollutants’ within the meaning of the
Act,” id. at 513, the Court held that the CAA’s defini-
tion of “air pollutant” “embraces all airborne com-
pounds of whatever stripe.” Id. at 529 (emphasis
added). Moreover, because the CAA requires EPA to
establish motor-vehicle emission standards for “any
air pollutant ... which may reasonably be anticipated
to endanger public health or welfare,” 42 U.S.C.
§ 7521(a)(1) (emphasis added), the Court held that
EPA had a “statutory obligation” to regulate harmful
greenhouse gases. Jd. at 534. “Under the clear terms
of the Clean Air Act,” the Court concluded, “EPA can
avoid taking further action only if it determines that
greenhouse gases do not contribute to climate change
or if it provides some reasonable explanation as to
why it cannot or will not exercise its discretion to
determine whether they do.” Jd. at 533. The Court
App. 21
thus directed EPA to determine “whether sufficient
information exists to make an endangerment finding”
for greenhouse gases. /d. at 534.
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 pollu-
tant” an “aggregate group of six long-lived and direct-
ly-emitted greenhouse gases” that are “well mixed”
together in the atmosphere and cause global climate
change: carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, and _ sulfur
hexafluoride. Id. at 66,536-37. Following “common
practice,” EPA measured the impact of these gases on
a “carbon dioxide equivalent basis,” (CO,e) which is
based on the gases’ “warming effect relative to carbon
dioxide . . . over a specified timeframe.” 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 conclud-
ed that motor-vehicle emissions of these six well-
mixed gases “contribute to the total greenhouse gas
air pollution, and thus to the climate change problem,
App. 22
which is reasonably anticipated to endanger public
health and welfare.” Jd. at 66,499.
Next, and pursuant to the CAA’s requirement
that EPA establish motor-vehicle emission standards
for “any air pollutant ... which may reasonably be
anticipated to endanger public health or welfare,” 42
U.S.C. §752i(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 econo-
my standards issued by the National Highway Traffic
Safety Administration (NHTSA). Jd. at 25,326.
Under EPA’s longstanding interpretation of the
CAA, the Tailpipe Rule automatically triggered
regulation of stationary greenhouse gas emitters
under two separate sections of the Act. The first, the
Prevention of Significant Deterioration of Air Quality
(PSD) program, requires state-issued construction
permits for certain types of stationary sources — for
example, iron and steel mill plants — if they have the
potential to emit over 100 tons per year (tpy) of “any
air pollutant.” See 42 U.S.C. §§ 7475; 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. § 74791). The second provi-
sion, Title V, requires state-issued operating permits
for stationary sources that have the potential to emit
App. 23
at least 100 tpy of “any air pollutant.” Jd. § 7602()).
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 Re-
quirements for Preparation, Adoption, and Submittal
of Implementation Plans; Approval and Promulgation
of Implementation Plans (“1980 Implementation Plan
Requirements”), 45 Fed. Reg. 52,676, 52,711 (Aug. 7,
1980) (PSD program); Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring
Rule (“Tailoring Rule”), 75 Fed. Reg. 31,514, 31,553-
54 (June 3, 2010) (discussing history of Title V regu-
lation and applicability). And once the Tailpipe Rule
set motor-vehicle emissior standards for greenhouse
gases, they became a regulated pollutant under the
Act, requiring PSD and Title V greenhouse permit-
ting.
Acting pursuant to this longstanding 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
be subject to PSD and Title V permitting regulations
App. 24
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.” Jd.
at 31,516. Departing from the CAA’s 100/250 tpy
emissions threshold, the Tailoring Rule provided that
only the largest sources — those exceeding 75,000 or
100,000 tpy CO,e, depending on the program and
project — would initially be subject to greenhouse gas
permitting. Jd. at 31,523. (The Tailoring Rule further
provided that regulated sources must also emit
greenhouse gases at levels that exceed the 100/250
tpy emissions threshold on a mass basis. That is, they
must emit over 100/250 tpy of actual pollutants, in
addition to exceeding the 75,000/100,000 tpy carbon
dioxide equivalent. Jd. at 31,523.)
A number of groups — including states and regu-
lated industries — filed petitions for review of EPA’s
App. 25
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 (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 con-
struction of the statute.” Id. at 843.
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 petition-
ers may timely challenge EPA’s longstanding inter-
pretation of the PSD statute. Because we conclude
that they may, Part V addresses the merits of their
App. 26
statutory arguments, and explains why EPA’s inter-
pretation of the CAA was compelled by the statute.
Next, Part VI explains why petitioners lack standing
to challenge the Timing and Tailoring Rules them-
selves. Finally, Part VII disposes of several argu-
ments that have nothing to do with the rules under
review, and thus are not properly before us.
Il.
We turn first to State and Industry Petitioners’
challenges to the Endangerment Finding, the first of
the series of rules EPA issued after the Supreme
Court remanded Massachusetts v. EPA. In the deci-
sion ordering the remand, the Supreme Court held
that EPA had failed in its statutory obligations when
it “offered no reasoned explanation for its refusal to
decide whether greenhouse gases cause or contribute
to climate change.” Massachusetts v. EPA, 549 U.S. at
534. On remand, EPA compiled a substantial scien-
tific record, which is before us in the present review,
and determined that “greenhouse gases in the atmos-
phere may reasonably be anticipated both to endan-
ger public health and to endanger public welfare.”
Endangerment Finding, 74 Fed. Reg. at 66,497. EPA
went on to find that motor-vehicle emissions of
greenhouse gases “ contribute to the total greenhouse
gas air pollution, and thus to the climate change
problem, which is reasonably anticipated to endanger
public health and welfare.” Jd. at 66,499.
App. 27
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 cr 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.
A.
Industry Petitioners contend that EPA improper-
ly interpreted CAA § 202(aX1) 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 activi-
ties that require greenhouse gas emissions, the
effectiveness of emissions regulation triggered by the
Endangerment Finding, and the potential for societal
adaptation to or mitigation of climate change. They
maintain that eschewing those considerations also
App. 28
made the Endangerment Finding arbitrary and
capricious.
These contentions are foreclosed by the language
of the statute and the Supreme Court’s decision in
Massachusetts v. EPA. Section 202(a) of the CAA
states in relevant part that EPA’s Administrator
shall by regulation prescribe (and from time
to time revise) in accordance with the provi-
sions of this section, standards applicable to
the emission of any air pollutant from any
class or classes of new motor vehicles or new
motor vehicle engines, 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(a)(1). This language requires that
the endangerment evaluation “relate to whether an air
pollutant ‘cause[s], or contribute[s) to, air pollution
which may reasonably be anticipated to endanger
public health or welfare.’” Massachusetts v. EPA, 549
U.S. at 532-33. At bottom, § 202(a\1) requires EPA to
answer only two questions: whether particular “air
pollution” — here, greenhouse gases — “may reasona-
bly be anticipated to endanger public health or wel-
fare,” and whether motor-vehicle emissions “cause, or
contribute to” that endangerment.
These questions require a “scientific judgment”
about the potential risks greenhouse gas emissions
pose to public health or welfare — not policy discus-
sions. Massachusetts v. EPA, 549 U.S. at 534. In
App. 29
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,
piecemeal approach to address the climate
change issue.”
Id. at 533 (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 rea-
soned justification for declining to form a scientific
judgment.” Jd. at 533-34. In the Court’s view, EPA’s
policy-based explanations contained “no reasoned
explanation for [EPA’s] refusal to decide” the key part
of the endangerment inquiry: “whether greenhouse
gases cause or contribute to climate change.” Jd. at
534.
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. The additional exer-
cises State and Industry Petitioners would have EPA
App. 30
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 “scientific judg-
ment” that § 202(aX1) requires of EPA. Instead of
focusing on the question whether greenhouse gas
emissions may reasonably be anticipated to endanger
public health or welfare, the factors State and Indus-
try 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 address-
ing the question “whether policy concerns can inform
EPA’s actions in the event that it makes such a find-
ing,” 549 U.S. at 534-35, 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
App. 31
the statute.” Jd. at 535. 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(aX1). Issuing those standards triggers regula-
tion — under EPA’s PSD and Title V programs — of
stationary sources that emit greenhouse gases at
levels above longstanding statutory thresholds.
Because greenhouse gases are emitted in much
higher volumes than other air pollutants, hundreds of
thousands of small stationary sources would exceed
those thresholds. This would subject those sources to
PSD and Title V permitting requirements despite
what Petitioners claim was Congress’s clear intent
that the requirements apply only to large industrial
sources. Petitioners assert that even EPA believed
such overbroad regulation to be an absurd result,
which it attempted to rectify by adopting the Tailor-
ing Rule to raise the statutory thresholds, see infra
Part VI.
However “absurd” Petitioners consider this
consequence, though, it is still irrelevant to the
endangerment inquiry. That EPA adjusted the statu-
tory thresholds to accommodate regulation of green-
house gases emitted by stationary sources may
App. 32
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 green-
house gases under the CAA. See Massachusetts uv.
EPA. The plain language of § 202(aX1) of that Act
does not leave room for EPA to consider as part of the
endangerment inquiry the stationary-source regula-
tion triggered by an endangerment finding, even if
the degree of regulation triggered might at a later
stage be characterized as “absurd.”
B.
State and Industry Petitioners next challenge the
adequacy of the scientific record underlying the
Endangerment Finding, objecting to both the type of
evidence upon which EPA relied and EPA’s decision to
make an Endangerment Finding in light of what
Industry Petitioners view as significant scientific
uncertainty. Neither objection has merit.
1.
As an initial matter, State and Industry Petition-
ers question EPA’s reliance on “major assessments”
addressing greenhouse gases and climate change
issued by the Intergovernmental Panel on Climate
Change (IPCC), the U.S. Global Climate Research
Program (USGCRP), and the National Research
Council (NRC). Endangerment Finding, 74 Fed. Reg.
at 66,510-11. These peer-reviewed assessments
App. 33
swnthesized 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
science-based judgment: it sought out and reviewed
existing scientific evidence to determine whether a
particular finding was warranted. It makes no differ-
ence that much of the scientific evidence in large part
consisted of “syntheses” of individual studies and
App. 34
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.
2.
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
App. 35
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
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 eccurred at a time when
natural forces such as solar and volcanic activity
likely would have produced cooling. Endangerment
App. 36
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 immediate-
ly 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.
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