Record and brief — Texas v. Envtl. Prot. Agency

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Ny) SUPREME COURT

“ea? OF THE UNITED STATES

No. 12-1269

Vide 12-1146, 12-

1248, 12-1254,

12-1268, 12-1272

Title: Texas, et al., Petitioners

Environmental Protection Agency, et al.

Docketed: April 23, 2013

Linked with 12A884

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

Case Nos.: (10-1092, et al.)

Decision Date: June 26, 2012

Rehearing

Denied: December 20, 2012

Questions

Presented

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

Mar 8 2013 Application (12A884) 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 (12A884) granted by The Chief Justice extending ihe time to file

until April 19, 2013.

Mar 18 2013 Application (12A905) 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 19 2013 Application (12A905) 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)

Apr 19 2013 Appendix of Texas, et al. filed. (Volumes | & II)

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 briefs, in support of either party or of

neither party, received from counse! for petitioners Southeastern Legal

Foundation, Inc., et al.

May 14 2013 Consent to the filing of amicus cunae bnefs, in support of either party or of

neither party prty, 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 15 2013 Order extending time to file response to petition to and including June 21,

2013, for all respondents.

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

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

May 23 2013 Bnef amici curiae of Kansas, Montana, and West Virginia filed.

May 23 2013 Bnef amici curiae of Scientists filed. VIDED

Jun 6 2013

Jun 7 2013

Jul 12013

Jul 8 2013

Jul 22 2013

Aug 7 2013

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

22, 2013, for all respondents.

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

limits, submitted to The Chief Justice.

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

limits, submitted to The Chief Justice.

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

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

not exceed 11,000 words.

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

VIDED.

Brief of Environmental Organization respondents in opposition filed. VIDED.

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

DISTRIBUTED for Conference of September 30, 2013.

Sep 13 2013 Reply of petitioner Texas, et al. filed. (Distributed)

Oct 7 2013

Oct 15 2013

Oct 22 2013

Oct 24 2013

Oct 29 2013

Nov 1 2013

DISTRIBUTED for Conference of October 11, 2013.

Petition GRANTED limited to the following Question: Whether EPA permissibly

determined that its regulation of greenhouse gas emissions from new motor

vehicles triggered permitting requirements under the Clean Air Act for

stationary sources that emit greenhouse gases. The cases are consolidated

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

Briefing proposal of the parties. VIDED

Letter from Coalition for Responsible Regulation, |nc., et al. regarding bnefing

proposal. VIDED.

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

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

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

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

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

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

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

aggregaie. VIDED

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

curiae bnefs 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.

Nov 7 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of

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

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

neither party, received from counsel for Southeastem Legal Foundation, Inc., 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 cunae briefs, in support of either party or of

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

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

neither party, received from counsel for Environmental Organizations, Center

for Biological Diversitiy, 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 bnefs, 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 Consent to the filing of amicus cunae briefs, in support of either party or of

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

VIDED.

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

of petitioners filed. VIDED.

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

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

al. filed. VIDED.

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

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

Greenhouse Gas Regulation, et al. filed. VIDED.

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

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

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

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

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

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

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

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

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

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

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

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

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

United States Congress filed. VIDED.

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

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

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

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

Business Associations filed. VIDED.

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

(Distnbuted)

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

support of neither party filed. VIDED. (Distnbuted)

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

Dec 20 2013 CIRCULATED.

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

petitioners. VIDED.

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

(Distributed)

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

(Distributed)

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

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

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

petitioners, and 45 minutes for respondents.

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

VIDED. (Distributed)

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

School of Law filed. VIDED. (Distributed)

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

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

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

(Distributed)

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

support of petitioners filed. VIDED. (Distributed)

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

VIDED. (Distributed)

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

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

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

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

respondents: Donald B. Ver»nilli, Jr., Solicitor General, Department of Justice,

Washington, D. C.

PETITION

FOR

WRIT OF

CERTIORARI

RECORD [—“Scoreme Court, US|

AND —

BRIEFS APR 19 2013

12-1269"

In the Supreme Court of the Anited States

STATE OF TEXAS, ET AL., PETITIONERS

v~.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREG ABBOTT JONATHAN F. MITCHELL

Attorney General of Texas Solicitor General

Counsel of Record

DANIEL T. HODGE

First Assistant MICHAEL P. MURPHY

Attorney General JAMES P. SULLIVAN

Assistant Solicitors General

J. REED CLAY, JR.

Senior Counsel to the OFFICE OF THE

Attorney General ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

{additional counsel jonathan. mitchell@

listed on inside cover] texasattorneygeneral.gov

(512) 936-1700

LUTHER STRANGE, Attorney General of Alabama

PAMELA JO BONDI, Attorney General of Florida

SAMUEL S. OLENS, Attorney General of Georgia

GREGORY F. ZOELLER, Attorney General of Indiana

JAMES D. “BUDDY” CALDWELL, Attorney General of Louisiana

BILL SCHUETTE, Attorney General of Michigan

JON BRUNING, Attorney General of Nebraska

WAYNE STENEHJEM, Attorney General of North Dakota

E. SCOTT PRUITT, Attorney General of Oklahoma

ALAN WILSON, Attorney General of South Carolina

MARTY J. JACKLEY, Attorney General of South Dakota

HERMAN ROBINSON, Executive Counsel of the Louisiana

Department of Environmental Quality

QUESTIONS PRESENTED

The Clean Air Act compels every stationary

source that emits “one hundred tons per year or more

of any air pollutant” to obtain an operating permit,

and also requires a permit to build or modify any

stationary source that emits “two hundred and fifty

tons per year or more of any air pollutant.” See 42

U.S.C. §§ 7475(a)(1), 7479(1), 7602G), 7661la(a).

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

held that carbon dioxide and other greenhouse gases

are air pollutants under the Act, EPA sought to

regulate greenhouse-gas emissions from stationary

sources. EPA realized that to do so would be absurd

if it adhered to the text of the Act, given that millions

of buildings (including churches and schools) emit

more than 100 or 250 tons per year of carbon dioxide.

To enable its desired regulatory expansion, EPA

promulgated a “Tailoring Rule” that discards the

Act’s numerical thresholds and creates a novel

permitting regime exclusively for greenhouse gases.

The questions presented are:

1. (a) Whether EPA’s Tailoring Rule violates the

Act by replacing Congress’s unambiguous numerical

permitting thresholds with criteria of EPA’s own

choosing. (b) Whether the D.C. Circuit improperly

ducked this question on Article III standing grounds.

2. Whether Congress authorized EPA to regulate

greenhouse-gas emissions from stationary sources,

given that the Act imposes permitting thresholds

that are absurdly low if applied to carbon dioxide.

3. Whether Massachusetts v. EPA should be

reconsidered or overruled in light of the absurd

permitting burdens that follow from treating carbon

dioxide as an air pollutant under the Act.

(D)

PARTIES TO THE PROCEEDING

The court of appeals issued a single judgment on

four consolidated causes, disposing of numerous

petitions for review of various EPA actions.

Petitioners in this Court, petitioners below, are the

States of Texas, Alabama, Florida, Georgia, Indiana,

Louisiana, Michigan, Nebraska, North Dakota,

Oklahoma, South Carolina, and South Dakota, and

the Louisiana Department of Environmental

Quality.

Respondents in this Court, respondents below,

are the U.S. Environmental] Protection Agency and

Robert Perciasepe, Acting Administrator of the U.S.

Environmental Protection Agency.

The following parties are considered respondents

under Supreme Court Rule 12.6, and are grouped

according to their respective positions in the court

below:

Petitioners

Alliance for Natural Climate Change Science and

William Orr; Alpha Natural Resources, Inc.;

American Chemistry Council; American Farm

Bureau Federation; American Forest & Paper

Association, Inc.; American Frozen Food Institute;

American Fuel and Petrochemical Manufacturers;

American Iron and Steel Institute; American

Petroleum Institute; U.S. Representative Michele

Bachmann; Haley Barbour, Governor of Mississippi;

U.S. Representative Marsha Blackburn; U.S.

Representative Kevin Brady; Brick Industry

Association; U.S. Representative Paul Broun; US.

Representative Dan Burton; Center for Biological

Diversity; Chamber of Commerce of the United

Iil

States of America; Clean Air Implementation

Project; Coalition for Responsible Regulation, Inc.;

Collins Industries, Inc.; Collins Trucking Company,

Inc.; Competitive Enterprise Institute; Corn Refiners

Association; U.S. Representative Nathan Deal;

Energy-Intensive Manufacturers’ Working Group on

Greenhouse Gas Regulation; Freedomworks; Georgia

Agribusiness Council, Inc.; Georgia Coalition for

Sound Environmental Policy, Inc.; Georgia Motor

Trucking Association, Inc.; Gerdau Ameristeel

Corporation; U.S. Representative Phil Gingrey; Glass

Association of North America; Glass Packaging

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

Independent Petroleum Association of America;

Indiana Cast Metals Association; Industrial Minerals

Association-North America; J&M Tank Lines, Inc.;

Kennesaw Transportation, Inc.; U.S. Representative

Steve King; U.S. Representative Jack Kingston;

Landmark Legal Foundation; Langboard, Inc.-MDF;

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

Inc.; Langdale Company; Langdale Farms, LLC;

Langdale Ford Company; Langdale Forest Products

Company; Langdale Fuel Company; Mark R. Levin;

U.S. Representative John Linder; Massey Energy

Company; Michigan Manufacturers Association;

Mississippi Manufacturers Association; Missouri

Joint Municipal Electric Utility Commission;

National Association of Home Builders; National

Association of Manufacturers; National Cattlemen’s

Beef Association; National Environmental

Development Association’s Clean Air Project;

National Federation of Independent Businesses;

National Mining Association; National Oilseed

Processors Association; National Petrochemical &

Refiners Association; North American Die Casting

Association; Ohio Coal Association; Pacific Legal

Foundation; Peabody Energy Company; Portland

Cement Association; U.S. Representative Tom Price;

U.S. Representative Dana Rohrabacher; Rosebud

Mining Company; Science and Environmental Policy

Project; U.S. Representative John Shadegg; U.S.

Representative John Shimkus; South Carolina

Public Service Authority; Southeast Trailer Mart

Inc.; Southeastern Legal Foundation, Inc.; Specialty

Steel Industry of North America; Tennessee

Chamber of Commerce and Industry; Texas

Agriculture Commission; Texas Attorney General

Greg Abbott; Texas Commission on Environmental

Quality; Texas Department of Agriculture; Texas

General Land Office; Texas Governor Rick Perry;

Texas Public Utilities Commission; Texas Public

Utility Commission Chairman Barry Smitherman;

Texas Railroad Commission; Utility Air Regulatory

Group; Commonwealth of Virginia ex rel. Attorney

General Kenneth T. Cuccinelli; West Virginia

Manufacturers Association; Western States

Petroleum Association; U.S. Representative Lynn

Westmoreland; Wisconsin Manufacturers and

Commerce;

Respondent

National Highway Traffic Safety Administration;

Intervenors for Petitioners

State of Alaska; American Frozen Food Institute;

American Fuel & Petrochemical Manufacturers;

American Petroleum Institute; Arkansas State

Chamber of Commerce; Associated Industries of

Arkansas; Haley Barbour, Governor for the State of

Mississippi; Chamber of Commerce of the United

States of America; Colorado Association of Commerce

& Industry; Corn Refiners Association; Glass

Association of North America; Glass Packaging

Institute; Idaho Association of Commerce and

Industry; Independent Petroleum Association of

America; Indiana Cast Metals Association; Kansas

Chamber of Commerce and Industry; State of

Kentucky; Langboard, Inc.-MDF; Langboard, Inc.-

OSB; Langdale Chevrolet-Pontiac, Inc.; Langdale

Farms, LLC; Langdale Ford Company; Langdale

Fuel Company; Louisiana Oil and Gas Association;

Michigan Manufacturers Association; Mississippi

Manufacturers Association; National Association of

Home Builders; National Association of

Manufacturers; National Electrical Manufacturers

Association; National Oilseed Processors Association;

Nebraska Chamber of Commerce and Industry;

North American Die Casting Association; Ohio

Manufacturers Association; Pennsylvania

Manufacturers Association; Portland Cement

Association; Steel Manufacturers Association;

Tennessee Chamber of Commerce and Industry;

State of Utah; Virginia Manufacturers Association;

West Virginia Manufacturers Association; Western

States Petroleum Association; Wisconsin

Manufacturers and Commerce;

Intervenors for Respondents

Alliance of Automobile Manufacturers; American

Farm Bureau Federation; State of Arizona; Brick

Industry Association; State of California; Center for

Biological Diversity; State of Connecticut;

Conservation Law Foundation; State of Delaware;

Environmental Defense Fund; Georgia ForestWatch;

Global Automakers; State of LIllinois; Indiana

Wildlife Federation; State of Iowa; State of Maine;

State of Maryland; Commonwealth of

Massachusetts; Michigan Environmental Council;

State of Minnesota; National Environmental

Development Association's Clean Air Project;

National Mining Association; National Wildlife

Federation; Natural Resources Council of Maine;

Natural Resources Defense Council; State of New

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

City of New York; State of North Carolina; Ohio

Environmental Council; State of Oregon; Peabody

Energy Company; State of Rhode Island; Sierra

Club; South Coast Air Quality Management District;

Utility Air Regulatory Group; State of Vermont;

State of Washington; Wetlands Watch; Wild

Virginia.

Vil

TABLE OF CONTENTS

Page

I TTC ETT A TTR AT TEI TTT 2

PETERS A et ae eee eT ONT ET 2

Constitutional Provision, Statutes, and

RES ESE AE ee aoe 2

EER at an Sr See A Saeeaal

I. EPA regulates mobile-source

greenhouse-gas emissions after

II We CUI ciiccnnicinciniedcniicvendenteantate 3

Il. EPA also decides to _ regulate

greenhouse-gas emissions from

i clan 5

II].EPA issues the “Tailoring Rule” to avoid

applying the statutory permitting

thresholds to greenhouse-gas emissions..... 8

IV.The D.C. Circuit rejects all challenges to

EPA’s stationary-source greenhouse-gas

RE SRC aes ac ae NERO 10

V. The D.C. Circuit denies petitioners’

request for rehearing en banc, over

I cisiscricintscinsichdihtidaleamadidancaiabatiiachitaeradiaaseliatuan ites 18

Reasons for Granting the Petition.......................... 18

I. This Court should grant certiorari to

resolve the legality of EPA’s Tailoring

SUE ievhiashaiinnicmichiobiighadiasnabasenadaiieiiammeniibannides 20

Vill

Il. This Court should grant certiorari to

decide whether Congress has delegated

to EPA the authority to regulate

greenhouse-gas emissions from

stationary sources, given the absurdly

low permitting thresholds that the

Clean Air Act would apply to carbon

ESE N tare PE ORE

I1l.This Court should grant certiorari to

reconsider or overrule Massachusetts’s

holding in light of the absurdity of

applying the _ statutory permitting

requirements to carbon dioxide

IT ciiiisiadnisesominiaindiasinabinannieaniniiaaitieinnniin

SE TE ICE OR ATE TTS OI TRO OO

Appendix A — Order of U.S. Court of Appeals

for the District of Columbia Circuit

Dismissing Petitions for Review of Timing

and Tailoring Rules and Denying Other

I I sc sieahtisiintinneiindaaintiinnnpbenion

Appendix C — U.S. Environmental] Protection

Agency, Prevention of Significant

Deterioration and Title V Greenhouse Gas

Tailoring Rule, 75 Fed. Reg. 31,514

(June 3, 2010) (“Tailoring Rule’)................ 103a

Appendix D — Order of U.S. Court of Appeals

for the District of Columbia Circuit

Denying Panel Rehearing........................... 525a

Appendix E — Order of U.S. Court of Appeals

for the District of Columbia Circuit

Denying Petitions for Rehearing En Banc

of Chamber of Commerce of the United

States of America and National Association

of Manufacturers, et al. ..........................0... 530a

Appendix F — Order of U.S. Court of Appeals

for the District of Columbia Circuit

Denying Petition for Rehearing En Banc of

Pacific Lege FOURGRGIOR ........ccccccscccsccecesece 589a

Appendix G — Federal Statutes...................... 59la

Appendix H — Federal Regulations................ 620a

TABLE OF AUTHORITIES

Cases:

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .........00.000.... 23

Envtl. Def. Fund v. EPA,

210 F.3d 396 (D.C. Cir. 2000).............00..... 16

FDA v. Brown & Williamson Tobacco Corp.,

2s S.C EEee 1, 29, 30

Gonzales v. Oregon, 546 U.S. 243 (2006) ......... l

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)...... 2

J.W. Hampton, Jr. & Co. v. United States,

I ilies 21

Lujan v. Defenders of Wildlife,

gt i | eee 22,27

Massachusetts v. EPA,

tk Sg. —___, SRE v Dn ann passim

MCI Telecomms. Corp. v. AT&T Co.,

es: SI cccicciccntitintaeiemenscnemsanneiie 21

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co.,

ey ee SI seiiiiistiiinidineosencpnnsmsninicncionnes 10

Payne v. Tennessee, 501 U.S. 808 (1991)........ 32

United States v. Van Smith,

530 F.3d 967 (D.C. Cir. 2008).................... 16

Vasquez v. Hillery, 474 U.S. 254 (1986)......... 32

Whitman v. Am. Trucking Ass'ns,

LS eee a 21

Youngstown Sheet & Tube Co. v. Sawyer,

Se dctetccmriniscirnencnciviesiiiinnnina 1

Constitution, Statutes, and Rules:

Sy I A I il rcs cciiciiniielionsaiauineieneae 1

oF Ge Se Se UR eS en 2

a I a icin dtccehaepiebiastenetiilamabeiniad 2

I ci een passim

ee ee PD ccniccticesenvictncscctstnnincunis 12

Se ree Oh PIED Svccccccsccccesnssincsensssevecess 5

eS Oe PE ictstttccsiccercesnscnstscentesiannats 5

OG vic scctivececscncvsivsninveneneeceness 5, 12

| LE ae on en a 5

ee ee SE initssccistnessnninininmenvnniesinatatenin 12

ee ae I iiiciicecienitsicnninevstienntibicnasdiite I,5

Be le Se PE vihtntctenencsnsecasctcnnscsnends 6, 12

I, i aincecesitccxeesenenctriteiensseniortinssnionios 5

A ta PD ccerctenetincncesscnnisnnins I, 6, 12, 13

Se a ae ED iiciiciteserenitesiininniciiciennmiineinies 3, 14

Oe Be I iccctictickcncinnninccceccinnanmnnisinniars 4, 29

ee ee SE diicictnenctsnsaveiduninciamacamacieiehi I, 6

Oe As OF PID vercesrcsctnctencannnicsnnnnsenes 19, 27

I Oe I i < ciicncniidannnnieneiinsciaindhetia I, 6

Te I 0 scicsscnidintenbinnmnnennieanniaena 6

Control of Emissions From New Highway

Vehicles and Engines: Notice of Denial of

Petition for Rulemaking, 68 Fed. Reg.

52,922, 52,925 (Sept. 8, 2003) ..................... 3

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)........................ passim

Light-Duty Vehicle Greenhouse Gas

Emission Standards and Corporate

Average Fuel Economy Standards

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

I lI Gi ind nc iainlatpadinuiancaiebnipsaneitnin passim

Prevention of Significant Deterioration and

Title V Greenhouse Gas Tailoring Rule

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

REED ra Se mee passim

Reconsideration of Interpretation of

Regulations That Determine Pollutants

Covered by Clean Air Act Permitting

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

17,004 (Apr. 2, 2010) ................. 8, 10, 28, 32

XII

Requirements for Preparation, Adoption, and

Submittal of Implementation Plans;

Approval and Promulgation of

Implementation Plans (“1980

Implementation Plan Requirements’),

45 Fed. Reg. 52,676 (Aug. 7, 1980)........ 7,13

40 C.F.R. § 51.166(6)(48)(iv)..................--scecceees 9

40 C.F.R. § 51.166(b)(48)(v) ........0.. eee 10

40 C.F.R. § 52.21(b)(49)(iv) ....-ccccccccceceececeseeeeeees 9

40 C.F.R. § 52.21(B)(49)(v) ..............cesccceeseeeees 10

Miscellaneous:

H.R. 5966, 101st Cong. (1990)........................ 29

Bh, Bae, BENE GIN, CD cccsnesesccccceccossesceses 29

Gerald Gunther, The Subtle Vices of the

Passive Virtues—A Comment on Principle

and Expediency in Judicial Review,

64 Colum. L. Rev. 1 (1964)........................ 23

Louis Kaplow, Rules Versus Standards: An

Economic Analysis,

42 Duke L.J. 557 (1992) ............................ 21

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989)....... 20

Frederick Schauer, Formalism,

97 Yale L.J. 509 (1988).....................00.e eens 20

Brief for the Federal Respondent,

Massachusetts v. EPA, No. 05-1120,

2006 WL 3043970 (U.S. Oct. 24, 2006)..... 25

In the Supreme Court of the Anited States

STATE OF TEXAS, ET AL., PETITIONERS

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the District of Columbia

Circuit in this case.

The executive branch in recent years has been all

too eager to govern through unilateral ec cts when

Congress is unwilling or unable to provide legislative

authorization for its endeavors. This phenomenon is

to be expected under a Constitution that establishes

many institutional obstacles to federal lawmaking—

obstacles that will occasionally thwart policies that

may be normatively desirable or politically popular.

See U.S. Const. art. I, § 7. Yet this Court has

consistently brought the executive branch to heel

when it contradicts unambiguous statutory language

or attempts to unilaterally implement policies in the

absence of congressionally delegated authority. See,

e.g., Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952); FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000); Gonzales v.

(1)

Oregon, 546 U.S. 243 (2006); Hamdan v. Rumsfeld.

548 U.S. 557 (2006). Petitioners call on this Court to

once again rein in a usurpatious agency and remind

the President and his subordinates that they cannot

rule by executive decree.

OPINIONS BELOW

The opinion of the D.C. Circuit (Pet. App. 6a-

102a) is reported at 684 F.3d 102. The D.C. Circuit’s

orders denying panel rehearing and rehearing en

banc (Pet. App. 525a-588a) are unreported. The

EPA’s Tailoring Rule (Pet. App. 103a-524a) is

reported at 75 Fed. Reg. 31,514.

JURISDICTION

The D.C. Circuit entered judgment on June 26,

2012, Pet. App. 6a, and denied timely petitions for

panel rehearing or rehearing en banc on December

20, 2012, Pet. App. 525a, 530a. On March 12, 2013,

Chief Justice Roberts extended the time for filing

this petition for a writ of certiorari to and including

April 19, 2013. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION, STATUTES,

AND REGULATIONS INVOLVED

Article III of the United States Constitution

provides, in pertinent part, that “[t]he judicial Power

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 Controversies to

which the United States shall be a party.” USS.

Const. art. III, § 2, cl. 1.

Relevant provisions of the Clean Air Act, 42

U.S.C. §§ 7407 et seqg., are reproduced beginning at

Pet. App. 591la. Relevant provisions of EPA's

regulations are reproduced beginning at Pet. App.

620a.

STATEMENT

I EPA Regulates Mobile-Source Greenhouse-Gas

Emissions After Massachusetts v. EPA

In 2003, EPA concluded that it lacked authority

to regulate greenhouse-gas emissions under the

Clean Air Act. See Control of Emissions From New

Highway Vehicles and Engines: Notice of Denial of

Petition for Rulemaking, 68 Fed. Reg. 52,922, 52,925

(Sept. 8, 2003) (declaring that “EPA believes that

{the Clean Air Act] does not authorize regulation to

address global climate change” (footnote omitted)).

Based on this view, EPA denied a petition from

organizations calling for the agency to regulate

greenhouse-gas emissions from motor vehicles. Id.

Those organizations had invoked section 202(a)(1) of

the Act, which directs the EPA Administrator to

regulate air-pollutant emissions from new motor

vehicles that “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 Court disagreed with EPA’s interpretation of

the Act in Massachusetts v. EPA, 549 U.S. 497

(2007). The Court noted that “[t]he Clean Air Act’s

sweeping definition of ‘air pollutant’ includes ‘any air

pollution agent or combination of such agents,

including any physical, chemical, * * * substance or

matter which is emitted into or otherwise enters the

ambient air,” and held that greenhouse gases

“without a doubt” qualify as air pollutants under the

Act. See 549 U.S. at 528-29 (quoting 42 U.S.C.

§ 7602(g)). Rather than order EPA to regulate

greenhouse-gas emissions from motor vehicles, the

Court required EPA to consider whether greenhouse

gases qualify as air pollutants that “endanger public

health or welfare” under section 202(a)(1), and noted

that “/i/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.” Jd. at 533 (emphases added).

Massachusetts did not consider or discuss EPA’s

authority to regulate greenhouse-gas emissions from

stationary sources (as opposed to mobile sources).

After the Massachusetts ruling, EPA issued an

endangerment finding for greenhouse _ gases,

concluding that “six greenhouse gases taken

together”’—carbon dioxide (CQz2z), methane (CHa),

nitrous oxide (N2QO), hydrofluorocarbons (HFCs),

perfluorocarbons (PFCs), and sulfur hexafluoride

(SFs)—“endanger both the public health and the

public welfare of current and future generations” by

causing or contributing to climate change. See

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, 66,496-97 (Dec. 15, 2009). Later, and in a

separate rulemaking, EPA promulgated greenhouse-

gas regulations for new motor vehicles jointly with

the National Highway Traffic Safety Administration.

See Light-Duty Vehicle Greenhouse Gas Emission

Standards and Corporate Average Fuel Economy

Standards (“Tailpipe Rule”), 75 Fed. Reg. 25,324

(May 7, 2010).

Tl. EPA Also Decides To Regulate Greenhouse-Gas

Emissions From Stationary Sources

Neither the Endangerment Finding nor the

Tailpipe Rule addresses EPA’s authority to regulate

greenhouse-gas emissions from stationary sources.

Under the Clean Ajir Act, stationary-source

pollutants are regulated by the program for

prevention of significant deterioration of air quality

(“PSD”), as well as the Title V permitting program.

The PSD Program

Title I of the Act establishes “national ambient air

quality standards” (“NAAQS”) for air pollutants. See

42 U.S.C. §§ 7408(a)(1)(A), 7409(b)(1). Geographic

areas are deemed either “attainment” or

“nonattainment” areas with respect to each

regulated air pollutant, depending on whether they

satisfy the NAAQS for that pollutant. See 42 U.S.C.

§ 7407.

The PSD program applies in all attainment areas,

as well as in “unclassifiable” areas. See 42 U.S.C.

§§ 7471, 7475. In areas where PSD provisions apply,

the statute prohibits anyone from building or

modifying a “major emitting facility” without first

acquiring a permit. See 42 U.S.C. § 7475(a)(1). The

PSD permitting authorities must grant or deny

applications within one year. See 42 U.S.C.

§ 7475(c). For purposes of the PSD program, the Act

defines a “major emitting facility”:

[S]tationary sources of air pollutants which

emit, or have the potential to emit, one

hundred tons per year or more of any air

pollutant from [listed] types of stationary

sources ***. Such term also includes any

other source with the potential to emit two

hundred and fifty tons per year or more of

any air pollutant.

42 U.S.C. § 7479(1). The PSD program further

requires owners of “major emitting facilities” to

demonstrate that their sources will comply with

emissions limits achievable through the “best

available control technology for each pollutant

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

§ 7475(a)(4).

The Title V Program

Title V of the Act requires all “major source[s]” of

air pollution to obtain operating permits. See 42

U.S.C. § 766la(a). “Major source[s]” under Title V

are defined to include

any stationary facility or source of air

pollutants which directly emits, or has the

potential to emit, one hundred tons per year

or more of any air pollutant.

42 U.S.C. § 7602()).

Title V allows EPA to “exempt one or more source

categories (in whole or in part)” from Title V if

compliance would be “impracticable, infeasible, or

unnecessarily burdensome on such categories.” See

42 U.S.C. § 766la(a). But the statute flatly forbids

EPA to “exempt any major source” from Title V’s

requirements. See id. (“[T]he Administrator may not

exempt any major source from such requirements.”).

The Title V permitting authorities must approve or

deny any completed operating-permit application

within eighteen months. See 42 U.S.C. § 7661b(c).

x***

Once Massachusetts held that carbon dioxide and

other greenhouse-gas emissions “without a doubt”

qualify as an “air pollutant” under the Act, the text

of the statute would appear to compel EPA to begin

applying immediately the statute’s 100/250 tons-per-

year (“tpy”) thresholds to carbon dioxide and other

greenhouse-gas emissions. EPA, however, has

interpreted the phrase “any air pollutant” in the PSD

and Title V provisions to extend only to air

pollutants that are regulated under the Clean Air Act,

even though the text of the Act provides no support

for this narrowing construction. See Requirements

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); Prevention of Significant Deterioration and

Title V Greenhouse Gas Tailoring Rule (“Tailoring

Rule”), 75 Fed. Reg. 31,514, 31,553-54 (June 3, 2010),

Pet. App. 273a-279a (discussing history of Title V

regulation and applicability); see also Pet. App. 70a

(acknowledging that “EPA’s definition of ‘any air

pollutant’ slightly narrows the literal statutory

definition, which nowhere requires that ‘any air

pollutant’ be a regulated pollutant”). EPA therefore

determined that it could not regulate greenhouse-gas

emissions from stationary sources until the day its

Tailpipe Rule went into effect. In EPA’s view, the

Tailpipe Rule, which regulates greenhouse-gas

emissions from motor vehicles, triggers EPA’s

authority to regulate stationary-source greenhouse-

gas emissions under the PSD and Title V programs,

because the Tailpipe Rule is what converts

greenhouse-gas emissions from mere “air pollutants”

into air pollutants that are regulated under the Act.

See Reconsideration of Interpretation of Regulations

That Determine Pollutants Covered by Clean Air Act

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

17,004, 17,005 (Apr. 2, 2010).

Ill. EPA Issues The “Tailoring Rule” To Avoid Applying

The Statutory Permitting Thresholds 7 -Greenhouse-

Gas Emissions

Several challenges arose once EPA decided to

regulate greenhouse gases as an “air pollutant”

under the PSD and Title V programs. These

challenges arise from the statutory permitting

thresholds established in the PSD and Title V

programs, which require facilities to obtain permits

if they emit more than 100 tpy (or, in some cases,

more than 250 tpy) of “any air pollutant.” These

numerical thresholds are set far too low to

accommodate rational regulation of carbon dioxide

emissions. Were EPA to apply the 100/250 tpy

thresholds to carbon dioxide, it “would bring tens of

thousands of small sources and modifications into

the PSD program each year, and millions of smal!

sources into the title V program.” Tailoring Rule,

Pet. App. 183a. This not only would expand the

number of “major” sources subject to permitting

requirements from 15,000 to more than 6 million, but

it would also increase annual permitting costs from

$12 million to $1.5 billion, and boost the number of

man-hours required to administer these programs

from 151,000 to 19,700,000. See id. at 103a-104a,

214a-217a. Countless numbers of buildings,

including churches and schools, would be subjected

to EPA permitting requirements based on the carbon

dioxide emissions from their water heaters.

EPA’s response to these problems was to

promulgate the “Tailoring Rule,” which replaces the

unambiguous numerical permitting’ thresholds

established in the Act with an agency-created regime

that determines whether a stationary source should

be required to obtain a permit based on its emissions

of greenhouse gases. EPA’s Tailoring Rule departs

from the statute in two respects. First, rather than

measure greenhouse-gas emissions by their mass,

EPA’s Tailoring Rule creates a new metric called

“CO2 equivalent emissions (COze).” Pet. App. 5lla.

This COve metric represents a weighted measure of

six intermixed substances based on their “global

warming potentials.” Jd. EPA recognized “the

tension between the mass-based metric in the

statute and the COce-based metric we are adopting,”

but it concluded that the COze metric “best addresses

the relevant environmental endpoint, which is

radiative forcing of the [greenhouse gases] emitted.”

Id. at 174a.

Second, the Tailoring Rule establishes its own

numerical permitting thresholds for stationary-

source greenhouse-gas emissions, hundreds of times

larger than the levels designated in the statute, and

phases them in over two time periods. Id. at 105a-

106a, 513a-515a. Under the first phase, which began

on January 2, 2011, PSD and Title V requirements

apply to sources that emit more than 75,000 tpy

COze and that are otherwise classified as “major

stationary sources.” See id. at 93a, 123a-125a

(codified at 40 C.F.R. §§ 51.166(b)(48)(iv),

52.21(b)(49)(iv)). The second phase began on July 1,

2011, and it expanded PSD and Title V coverage to

sources that emit greenhouse gases in excess of

100,000 tpy COve, regardless whether they are

otherwise classified as “major stationary sources.”

Id. at 93a, 123a-125a, 139a, 218a, 339a (codified at

40 C.F.R. §§ 51.166(b)(48)(v), 52.21(b)(49)(v)).

IV. The D.C. Circuit Rejects All Challenges To EPA’s

Stationary Source Greenhouse~Gas Regulations

Texas, along witn sixteen other States and

numerous industry petitioners, filed petitions for

review challenging the Endangerment Finding, the

Tailpipe Rule, the Timing Rule, and the Tailoring

Rule. The D.C. Circuit rejected all of petitioners’

challenges to the Endangerment Finding. Pet. App.

33a-5la. Texas had argued in the D.C. Circuit that

EPA’s Endangerment Finding was arbitrary and

capricious because EPA had refused to quantify a

threshold atmospheric concentration at which

greenhouse gases will endanger public health or

welfare, but the D.C. Circuit concluded that “EPA

need not establish a minimum threshold of risk or

harm before determining whether an air pollutant

endangers.” Id. at 44a.

The D.C. Circuit also rejected petitioners’

challenges to the Tailpipe Rule. See Pet. App. 54a-

57a. Texas had attacked the Tailpipe Rule on the

ground that EPA had failed to consider that its

decision to regulate mobile-source greenhouse-gas

emissions under the Tailpipe Rule would “trigger” an

obligation to regulate greenhouse-gas emissions from

stationary sources under the PSD and Title V

programs—and EPA’s failure to consider the costs of

imposing these absurdly low permitting thresholds

on carbon dioxide emissions violated the arbitrary-

and-capricious doctrine by “fail[ing] to consider an

important aspect of the problem.” Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). The D.C. Circuit,

however, rejected this argument, concluding that

section 202(a)(1) of the Clean Air Act compelled EPA

to regulate greenhouse-gas emissions from motor

vehicles once it had issued an Endangerment

Finding, regardless of the collateral consequences of

that decision. See Pet. App. 51a-54a.

Finally, the D.C. Circuit disposed of petitioners’

challenges to EPA’s regulations of stationary-source

greenhouse-gas emissions. Petitioners challenged

EPA’s stationary-source rules on two grounds.

First, petitioners argued that Congress could

never have delegated to EPA the prerogative to

regulate greenhouse-gas emissions from stationary

sources, given the preposterous consequences that

arise from applying the statute’s 100/250 tpy

permitting thresholds to carbon dioxide emissions.

Instead, petitioners maintained, the only logical

reading of EPA’s authority to regulate “air

pollutant[s}” under the PSD and Title V programs is

that it extends only to the pollutants for which EPA

has established NAAQS under 42 U.S.C. § 7407.

There are six of these “NAAQS pollutants”: carbon

monoxide, lead, nitrogen dioxide, ozone, particle

pollution, and sulfur dioxide. And none of the

greenhouse gases that EPA seeks to regulate is a

NAAQS pollutant.

Petitioners’ argument rested on _ statutory

structure. The PSD program is primarily focused on

the preservation of national ambient air quality

standards. It requires EPA to designate certain

pollutants as “NAAQS pollutants” and then establish

national ambient air quality standards for those

pollutants. See 42 U.S.C. § 7407. Then EPA must

determine whether each region of the country is in

“attainment” or “nonattainment” for each NAAQS

pollutant, or whether that region is “unclassifiable”

for that pollutant. See 42 U.S.C. § 7407(d)(1)(A).

The PSD program applies to all areas designated as

in “attainment” or “unclassifiable” for any NAAQS

pollutant, and requires permits before any “major

emitting facilit[y]” constructs or modifies projects in

those regions. See 42 U.S.C. §§ 7471, 7475(a). For

purposes of the PSD program, the Act defines a

“major emitting facility” as:

[S]tationary sources of air pollutants which

emit, or have the potential to emit, one

hundred tons per year or more of any air

pollutant from [listed] types of stationary

sources * **. Such term also includes any

other source with the potential to emit two

hundred and fifty tons per year or more of

any air pollutant.

42 U.S.C. § 7479(1) (emphases added). And no

permit may issue unless the owner of the “major

emitting facilit[y]” installs the “best available control

technology for each pollutant subject to regulation

under this chapter.” 42 U.S.C. § 7475(a)(4).

Petitioners argued that the phrase “any air

pollutant” in section 7479(1) must be understood in

the context of the surrounding statutory provisions of

the PSD program, which are concerned with

maintaining the standards that EPA has established

for NAAQS pollutants. Indeed, without some

limiting construction of the phrase “any air

pollutant,” EPA would have been compelled to apply

the PSD permitting thresholds for carbon dioxide

emissions from the moment the Act was enacted—

and apply those permitting thresholds not only to

carbon dioxide emissions but to “all airborne

compounds of whatever stripe.” Massachusetts, 549

U.S. at 529; see also id. at 558 n.2 (Scalia, J.,

dissenting) (noting that “everything airborne, from

Frisbees to flatulence, qualifies as an ‘air pollutant”

under Massachusetts’s construction of the Clean Air

Act). Even EPA recognizes that it cannot possibly

construe “any air pollutant” in section 7479(1) as

broadly as the holding in Massachusetts. See, e.g.,

Tailoring Rule, Pet. App. 123a-124a (describing the

PSD program as covering sources that emit or have

the potential to emit 100/250 tpy of “any pollutant

subject to regulation under the CAA”) (emphasis

added). But rather than equating the “air

pollutant[s}]” in section 7479(1) with NAAQS

pollutants, EPA has interpreted “any air pollutant”

in section 7479(1) to mean “any air pollutant

regulated under the Clean Air Act.” See 1980

Implementation Plan Requirements, 45 Fed. Reg. at

52,711. On this view, carbon dioxide and other

greenhouse gases became “air pollutant{s]” within

the meaning of section 7479(1) as soon as the

Tailpipe Rule took effect—-but were not “air

pollutant[s]” before that date.

The D.C. Circuit held that EPA’s limiting

construction of “any air pollutant” was “statutorily

compelled”—even though EPA’s interpretation is

hard to reconcile with Massachusetts and leads to

absurd results when the 100/250 tpy statutory

permitting thresholds are applied to carbon dioxide

emissions. The D.C. Circuit acknowledged that the

text of section 7479(1) “nowhere requires that ‘any

air pollutant’ be a regulated pollutant.” Pet. App.

70a. Yet it refused to acknowledge that the statute

was ambiguous or susceptible of other limiting

constructions. The Court explained:

{I]f “any air pollutant” in the definition of

“major emitting facility” wiere] read to

encompass both regulated and nonregulated

air pollutants, sources could qualify as

major emitting facilities—and thus be

subjected to PSD permitting

requirements—if they emitted 100/250 tpy

of a “physical, chemical, for] biological”

substance EPA had determined was

harmless. It is absurd to think that

Congress intended to subject stationary

sources to the PSD permitting requirements

due to emissions of substances that do not

“endanger public health or welfare.” Jd.

§ 7521(a)(1). Thus, “any regulated air

pollutant” is, in this context, the only

plausible reading of “any air pollutant.”

Id. at 7la (second alteration in original). The

petitioners contended that it is equally “absurd” to

think that Congress intended to apply the statute’s

100/250 tpy permitting thresholds to carbon dioxide

emissions. But the D.C. Circuit was unwilling to

regard that absurdity as a reason to adopt

petitioners’ limiting construction of the statute.

In the alternative, petitioners argued that if EPA

and the courts refuse to accept petitioners’ limiting

construction of “any air pollutant,” then the courts

must compel EPA to follow the unambiguous

statutory permitting thresholds as written until

Congress enacts corrective legislation. The rigid

numerical permitting thresholds in the Clean Air Act

reflect a decision by Congress to legislate through

rules rather than standards—and the entire point of

legislating by rule is to constrain the executive’s

discretion to pursue optimal regulatory policies in

exchange for conserving decision costs and

preserving congressional influence over future policy

decisions. By establishing fixed and unambiguous

permitting thresholds for all air pollutants, instead

of authorizing EPA to establish “reasonable”

pollution-specific thresholds, the Act allocates power

between legislature and agency and requires EPA to

obtain congressional authorization before launching

a new regulatory regime that departs from existing

statutory requirements. Allowing EPA to replace the

statute’s rigid permitting thresholds with numbers of

EPA’s own choosing flouts this careful division of

power and allows EPA to unilaterally impose a

drastic mew regulatory regime without’ the

congressional authorization or input required by the

Act.

The D.C. Circuit, however, held that petitioners

lacked Article LI] standing to challenge EPA’s

Tailoring Rule. Petitioners recited the basis for

standing in their opening brief, explaining that

vacating the Tailoring Rule would relieve them of the

administrative and pecuniary burdens that follow

from EPA’s decision to regulate stationary-source

greenhouse-gas emissions. Final Br. of State Pet’rs

& Supporting Intervenor 22-23. Petitioners asserted

that they would be subject to less regulation were

they to prevail because vacating the Tailoring Rule

would force EPA to choose between requiring permits

for every building that emits more than 100 (or 250)

tpy of carbon dioxide—an outcome EPA described as

“absurd” and “impossible”—and abandoning its plans

to regulate’ stationary-source greenhouse-gas

emissions. Jd. at 23, 27 (citing Tailoring Rule, 75

Fed. Reg. at 31,541-49).

EPA’s brief contested standing on the ground that

vacating the Tailoring Rule would subject petitioners

to more regulation, not less, because the Tailoring

Rule replaced the Act’s numerical permitting

thresholds with higher numbers. Br. for Resp’ts 76-

84. Relying upon the D.C. Circuit’s assurances that

“an appellant may use his reply brief to respond to a

contention made by the appellee,” petitioners

explained that EPA’s implausible prediction of

regulatory impact did not foreclose standing. United

States v. Van Smith, 530 F.3d 967, 973 (D.C. Cir.

2008) (citing Envtl. Def. Fund v. EPA, 210 F.3d 396,

401 n.8 (D.C. Cir. 2000)). Petitioners explained that

“[e]ven if EPA were correct to assert that the relief

requested by the petitioners will increase regulatory

burdens,” the petitioning States would simply

“wear[] an environmentalist hat” and enjoy standing

for the same reasons as the eponymous

Commonwealth in Massachusetts v. EPA. Final

Reply Br. of State Pet’rs & Supporting Intervenor 3-

6. Moreover, petitioners adhered to their position

that vacating the Tailoring Rule “will either provoke

corrective legislation from Congress ***, or else

provoke corrective administrative action by EPA

itself,” thus yielding a reduction in overall

regulation. Id. at 6.

The D.C. Circuit avoided ruling on the legality of

the Tailoring Rule by embracing EPA’s standing

argument while refusing to consider petitioners’

reply. See Pet. App. 95a-10la. The D.C. Circuit

agreed that the Tailoring Rule “actually mitigate([s}”

petitioners’ regulatory burdens, because without the

Tailoring Rule EPA would be compelled to require

permits for any stationary source that emits more

than 100 or 250 tpy of carbon dioxide. Pet. App. 96a.

The D.C. Circuit reiterated that EPA had no choice

but to regulate greenhouse-gas emissions under the

PSD and Title V programs once greenhouse-gas

emissions from mobile sources became subject to

regulation under the Tailpipe Rule. Jd. Because the

D.C. Circuit continued to reject petitioners’ claim

that the Act could be interpreted to limit the PSD

and Title V programs to the six NAAQS pollutants, it

found that a decision vacating the Tailoring Rule

could not induce EPA to abandon or delay its plans

to regulate stationary-source greenhouse-gas

emissions. The D.C. Circuit also found the prospect

of corrective legislation from Congress too

“speculative” to support redressability, and noted

that Congress might respond by establishing

permitting requirements for greenhouse-gas

emissions more burdensome than the permitting

thresholds in EPA’s Tailoring Rule (even if less

burdensome than the 100/250 tpy thresholds in the

statute). Pet. App. 97a-98a. The D.C. Circuit

refused to consider petitioners’ response to EPA's

standing argument because they did not raise it in

their opening brief, and because petitioners “fail[ed]

to cite any record evidence to suggest that they are

adversely affected by global climate change.” Pet.

App. 100a.

Vv. The D.C. Circuit Denies Petitioners’ Request For

Rehearing En Banc, Over Dissent

Petitioners then sought rehearing en banc, but a

majority of the eligible judges voted to deny this

request. Judges Brown and Kavanaugh, however,

dissented from the denial of rehearing en banc.

Judge Brown argued that Massachusetts’s holding

that carbon dioxide and other greenhouse gases

unambiguously qualify as “air pollutants” under the

Clean Air Act should apply only to tailpipe

emissions, and that Massachusetts’s reasoning “does

not extend to Title V and the PSD program.” Pet.

App. 559a. And Judge Kavanaugh declared that

“EPA has exceeded its statutory authority” by

attempting to regulate greenhouse-gas emissions

from stationary sources. As Judge Kavanaugh saw

matters, an agency cannot construe ambiguous

statutory language to create an absurdity, and then

assert a prerogative to construe unambiguous

statutory language to avoid that absurdity. Pet.

App. 566a.

REASONS FOR GRANTING THE PETITION

Although petitioners presented numerous

arguments against EPA’s rulemaking in the D.C.

Circuit, the following three issues present questions

worthy of certiorari review.

The first is the legality of EPA’s Tailoring Rule,

which spurns the unambiguous’ numerical

permitting thresholds established in the Clean Air

Act and replaces them with numbers and metrics of

EPA’s own choosing.

The second is whether Congress has delegated to

EPA the authority to regulate greenhouse-gas

emissions from. stationary sources, given. the

ridiculously low permitting thresholds that the Clean

Air Act would impose for carbon dioxide emissions.

The third and final question is whether this

Court’s holding in Massachusetts v. EPA should be

reconsidered or overruled in light of the preposterous

consequences that arise from treating carbon dioxide

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

The Court should grant certiorari on each of the

three questions because of their “unusual

importance.” Massachusetts, 549 U.S. at 506; see

also Pet. App. 539a (opinion of Sentelle, Rogers, and

Tatel, JJ., concurring in the denials of rehearing en

banc) (“The underlying policy questions and the

outcome of this case are undoubtedly matters of

exceptional importance.”). No circuit split can

develop because the D.C. Circuit has exclusive

jurisdiction to review nationally applicable final

actions of the EPA Administrator, so there is no

point in waiting for further percolation. See 42

U.S.C. § 7607(b)(1). Finally, the jurisdictional

objections that the D.C. Circuit raised to the first of

these three issues are worthy of review in their own

right, and in all events should not deter this Court

from reviewing that question in light of its unusual

importance. See Massachusetts, 549 U.S. at 505-06

(noting the Court’s decision to grant certiorari

“notwithstanding the serious character” of the

Article III standing objections raised in the courts

below).

I. THIs COURT SHOULD GRANT CERTIORARI TO RESOLVE

THE LEGALITY OF EPA’sS TAILORING RULE

EPA's Tailoring Rule represents one of the most

audacious power-grabs ever attempted by an

administrative agency. Rather than apply the

unambiguous numerical thresholds that the Clean

Air Act establishes for all air pollutants regulated

under the PSD and Title V programs, EPA’s

Tailoring Rule creates its own threshold levels for

carbon dioxide and other greenhouse-gas emissions,

and sets them approximately 400 to 1000 times

higher than the levels specified in the statute. Pet.

App. 136a-142a. If that were not enough, EPA’s

Tailoring Rule departs from the mass-based

approach to significance levels established in the text

of the Act; it measures the threshold quantities of

greenhouse-gas emissions according to an agency-

created COve metric rather than tons. Jd. at 132a-

133a, 171la-177a. This flouts the rule-based

thresholds that the Clean Air Act established to

constrain EPA’s discretion. Under the statute, a

“major stationary source” is to be determined by the

mass of the emitted pollutants, not their

environmental impact or heat-trapping potential.

Agencies do not have the power to countermand

unambiguous statutory language in this manner.

The entire point of legislating by rule (rather than by

standard) is to constrain agency discretion, even

though these constraints will on occasion produce

suboptimal policy outcomes. See, e.g., Antonin

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.

L. Rev. 1175 (1989); Frederick Schauer, Formalism,

97 Yale L.J. 509, 539 (1988). Rules also serve to

allocate power between the legislatures that enact

the laws and the agencies and courts that implement

the laws. Open-ended standards delegate power to

institutions that implement the law (such as

agencies and courts), whereas statutory rules such as

the numerical permitting thresholds in the Clean Air

Act withhold discretion from those institutions and

force them to seek legislative approval before

deviating from the codified regime. See, e.g., Louis

Kaplow, Rules Versus Standards: An Economic

Analysis, 42 Duke L.J. 557, 559-60 (1992). How to

calibrate these tradeoffs between rules and

standards is an _ essential component of the

compromises necessary to produce statutes such as

the Clean Air Act. See MCI Telecomms. Corp. v.

AT&T Co., 512 U.S. 218, 231 n.4 (1994) (declaring

that courts and agencies are “bound, not only by the

ultimate purposes Congress has selected, but by the

means it has deemed appropriate, and prescribed, for

the pursuit of those purposes”).

EPA’s Tailoring Rule violates not only the Clean

Air Act, but also the Constitution. Under the

Constitution, agencies are allowed only to administer

the laws; they may not exercise legislative powers

that Article I vests exclusively in Congress. It is of

course inevitable that agencies will exercise

discretion when they implement federal statutes, as

Congress is not omniscient and cannot establish

mechanical rules for every conceivable scenario that

may arise. But the Constitution requires federal

statutes to both authorize that discretion and

provide an “intelligible principle” to guide agency

discretion. Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001); J.W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 409 (1928). Any agency

that exercises discretionary powers absent an

“intelligible principle” from Congress has crossed the

line into constitutionally forbidden lawmaking.

EPA’s decision to replace the numerical

thresholds in the Clean Air Act with targets of its

own making is not and cannot be based on any

intelligible principle provided by Congress. The Act

envisions that EPA will either comply with the

numerical thresholds or seek corrective legislation

from Congress; as a result, it does not supply any

intelligible principle for the improvisation project

that EPA has undertaken in the Tailoring Rule. So

even if EPA could conjure up a non-arbitrary

justification for choosing 75,000 tpy COze and

100,000 tpy COvze as the “new” threshold levels for

greenhouse-gas emissions, it cannot link these

decisions to any guideline provided in a federal

statute, and it therefore cannot characterize the

Tailoring Rule as anything other than agency

legislation.

The D.C. Circuit was wrong to think that it could

avoid passing upon these problems by dismissing

petitioners’ challenges to the Tailoring Rule for lack

of standing. Petitioners maintain that vacating the

Tailoring Rule will reduce their regulatory burden,

on balance, given EPA’s admission that regulation of

stationary-source greenhouse-gas emissions would be

absurd and impossible absent the Tailoring Rule.

EPA counters that vacating the Tailoring Rule will

actually increase petitioners’ regulatory burden. But

the Tailoring Rule injures petitioners no matter

which side is right about its ultimate regulatory

impact. Vacating the Tailoring Rule will either

redress the injury of onerous regulation, see Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561-62 (1992), or

else it will redress the environmental injury

recognized in Massachusetts, 549 U.S. at 521-23 &

n.18. Petitioners have standing coming and going, so

the D.C. Circuit should not have ducked its

obligation to rule on the merits of EPA’s Tailoring

Rule. Cf. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

404 (1821) (“We have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.”); Gerald Gunther, The

Subtle Vices of the Passive Virtues—A Comment on

Principle and Expediency in Judicial Review, 64

Colum. L. Rev. 1 (1964).

The D.C. Circuit refused to consider petitioners’

Massachusetts-based counterargument on the ground

that it first appeared in a reply brief. See Pet. App.

95a-101la. Petitioners, however, had no obligation to

respond in their opening brief to an argument EPA

had not yet made—namely, that vacating the

Tailoring Rule would increase rather than decrease

the regulatory burdens pertaining to stationary-

source greenhouse-gas emissions. After EPA

injected this new argument into the case, petitioners

used their reply brief to do exactly what the name

suggests: They replied that even if EPA were correct

about the ultimate regulatory impact, petitioners

would still have standing under Massachusetts. By

combining dubious analyses of standing and

forfeiture, the D.C. Circuit exhibited the passive

virtues at their worst.

The D.C. Circuit also faulted petitioners for

“fail[ing} to cite any record evidence to suggest that

they are adversely affected by global climate

change.” Pet. App. 100a. But it is not necessary for

the States to buttress their claim of injury with

empirical proof when EPA does not deny that

greenhouse-gas emissions contmbute to climate

change, and that climate change injures the States.

EPA’s Endangerment Finding is rife with findings of

how greenhouse-gas emissions injure the States.

Indeed, EPA cannot deny the States’ claim of

environmental injury without confessing that the

Endangerment Finding must be vacated. And if this

Court believes that evidence from the record is

needed to establish this injury it is easily found in

the Endangerment Finding.

In all events, a State need not provide empirical

proof of the harms from global climate change after

Massachusetts, which holds as matter of Article III

1 See, e.g., 74 Fed. Reg. at 66,525 (warning of increased regional

ozone pollution across the United States); id. at 66,532

(estimating that forest productivity will decrease “in the

Interior West, the Southwest, eastern portions of the Southeast,

and Alaska,” and fire dangers and insect problems will increase

in other regions); id. (forecasting that the “shrinking snowpack

due to warming” presents “very serious risks to major

population regions, such as California, that rely on snowmelt-

dominated watersheds for their water supply”); id. (“Warmer

temperatures and decreasing precipitation in other parts of the

country, such as the Southwest, can sustain and amplify

drought impacts.”); id. (warning of increased salinization from

intrusion of salt water that will negatively affect fresh-water

supplies in coastal areas); id. at 66,533 (predicting lower water

levels in the Great Lakes and major river systems that will

“exacerbate challenges relating to water quality, navigation,

recreation, hydropower generation, water transfers, and bi-

national relationships”); id. (predicting coastal flooding,

shoreline erosion, and progressive inundation and wetland loss

for coastal States and communities).

standing law that “the harms associated with climate

change are serious and well regarded,” and cites with

approval a National Research Council Report that

“identifies a number of environmental changes that

have already inflicted significant harms” including

rising sea levels. Massachusetts, 549 U.S. at 521.

Just as the prospect of losses to Massachusetts’s

coastline caused by global warming was sufficient to

afford Massachusetts standing, the prospect of such

losses occurring in Texas is equally sufficient to

afford standing. And having accepted as true the

global-warming theory and rising sea levels as a

consequence, one need only note that Texas too has

abundant coastline at risk.

The D.C. Circuit noted that the Commonwealth of

Massachusetts had submitted “unchallenged

affidavits and declarations” in that case to prove

Article III injury. Pet. App. 100a. But those

affidavits and declarations were necessary only

because the EPA in that case denied that its failure

to regulate greenhouse-gas emissions harmed the

State petitioners. See Brief for the Federal

Respondent, Massachusetts v. EPA, No. 05-1120,

2006 WL 3043970, at *7 (U.S. Oct. 24, 2006)

(“Petitioners have failed to carry their burden of

establishing that they will be harmed by the specific

agency action they challenge—EPA’s decision not to

regulate greenhouse gas emissions from new motor

vehicles within the United States.”). In this case

EPA acknowledges that the failure to limit

stationary-source greenhouse-gas emissions injures

the States by contributing to climate change. The

Commonwealth of Massachusetts obviously did not

have the benefit of this Court’s decision in

Massachusetts when it filed its petition for review.

Massachusetts now establishes that States have

Article III standing to challenge EPA’s failure to

sufficiently regulate greenhouse-gas emissions; so

long as Massachusetts’s standing analysis remains

good law, Texas has as much of a right to challenge

the legality of the Tailoring Rule as Massachusetts

would have.? That Texas’s motivations for

challenging the Tailoring Rule may differ from

petitioners’ motivations in Massachusetts is

immaterial to the existence of an injury in fact, or to

any other aspect of Article III standing.

The D.C. Circuit further erred by rejecting the

theory of standing petitioners urged in their opening

and reply briefs. Petitioners argued that EPA’s

regulation of stationary-source greenhouse-gas

emissions imposed administrative and regulatory

burdens on the States, and that vacatur of the

Tailoring Rule would redress this injury by forcing

EPA to choose between the absurd result of requiring

permits for every building that emits more than 100

(or 250) tpy of carbon dioxide, and abandoning or

postponing its plans to regulate stationary-source

greenhouse-gas emissions under the PSD and Title V

programs. The D.C. Circuit deemed this argument

“speculative” because there is no guarantee that a

judicial decision vacating the Tailoring Rule would

alleviate rather than aggravate the regulatory

2 The States are not challenging Massachusetts’s analysis of

Article III standing; they are asking this Court to reconsider

only Massachusetts’s holding that carbon dioxide and other

greenhouse gases unambiguously qualify as “air pollutant[s]”

under the Clean Air Act. See infra at 31-33.

injuries imposed on the States, and insisted that the

States must show that it is “likely, as opposed to

merely speculative, that the injury will be redressed

by a favorable decision.” See Pet. App. 97a (quoting

Lujan, 504 U.S. at 561).

The D.C. Circuit’s analysis of redressability is not

consistent with Massachusetts. Massachusetts held

that when private litigants challenge final actions of

the EPA Administrator under 42 U.S.C. § 7607(b)(1),

they are asserting a “procedural right to protect

[their] concrete interests,” and they therefore need

only show “some possibility” that judicial relief will

redress the alleged injury:

[A] litigant must demonstrate that *** a

favorable decision will redress that injury.

See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-561. However, a litigant to whom

Congress has “accorded a procedural right

to protect his concrete interests,” id., at 572,

n.7—here, the right to challenge agency

action unlawfully withheld, § 7607(b)(1)—

“can assert that right without meeting all

the normal standards for redressability and

immediacy,” ibid. When a litigant is vested

with a procedural right, that litigant has

standing if there is some possibility that the

requested relief will prompt the injury-

causing party to reconsider the decision

that allegedly harmed the htigant.

Massachussetts, 549 U.S. at 517-18 (emphasis

added). Petitioners are challenging the Tailoring

Rule under the same statutory provision at issue in

Massachusetts: 42 U.S.C. § 7607(b)(1). They need

only show “some possibility,” not a “likelihood,” that

a decision vacating the Tailoring Rule will alleviate

the administrative and regulatory burdens imposed

by EPA.

The D.C. Circuit’s analysis of standing is

troubling for an additional] reason: It allows EPA to

escape judicial review of its stationary-source

regulations by subdividing them into separate rules.

Had EPA promulgated the Endangerment Finding,

the Tailpipe Rule, the Timing Rule, and the

Tailoring Rule as part of a single rulemaking

proceeding, the courts would undoubtedly have

jurisdiction to rule on EPA’s decision to depart from

the unambiguous permitting requirements of the

Clean Air Act. But EPA thinks it can insulate the

Tailoring Rule from judicial review by promulgating

it separately from the other parts of its stationary-

source regulatory regime, and then claiming that the

Tailoring Rule only alleviates the regulatory burdens

on petitioners and therefore imposes no Article III

injury.

Il. THis CouRT SHOULD GRANT CERTIORARI TO DECIDE

WHETHER CONGRESS HAS DELEGATED TO EPA THE

AUTHORITY TO REGULATE GREENHOUSE-GAS

EMISSIONS FROM STATIONARY SOURCES, GIVEN THE

ABSURDLY LOW PERMITTING THRESHOLDS THAT THE

CLEAN AIR ACT WOULD APPLY TO CARBON DIOXIDE

EMISSIONS

The Court should also grant certiorari to decide

whether EPA has statutory authority to regulate

greenhouse-gas emissions from stationary sources,

when the unambiguous statutory requirements of

the PSD and Title V programs would compel results

that EPA deems absurd. The low, mass-based

permitting thresholds established by the PSD and

Title V provisions simply do not fit with a world in

which EPA treats carbon dioxide and other

greenhouse gases as “air pollutant{s]” under those

programs. And the Congress that enacted the 1990

Clean Air Act Amendments rejected several

legislative proposals to regulate greenhouse-gas

emissions from stationary sources. See, e.g., H.R.

5966, 10lst Cong. (1990); S. 1224, 101st Cong.

(1989).

FDA v. Brown & Williamson, 529 U.S. at 159-61,

refused to extend Chevron deference to the FDA’s

decision to assert jurisdiction over tobacco

products—even though those products fel. squarely

within the statutory definitions of “drugs” and

“devices”—because the statutes governing the FDA

would have required the agency to ban cigarettes

entirely from interstate commerce. Given that this

outcome was incompatible with any semblance of

rational regulation, this Court concluded that

Congress could not have delegated to FDA the power

to decide whether to regulate tobacco products.

Brown & Williamson controls here and compels the

conclusion that EPA lacks authority to regulate

greenhouse-gas emissions from stationary sources.

Massachusetts held that EPA could no longer

refuse to regulate motor-vehicle greenhouse-gas

emissions simply by insisting that greenhouse gases

fail to qualify as “air pollutant(s].” This holding

rested on two propositions. First, the Court observed

that the four greenhouse gases emitted by motor

vehicles—“[c]arbon dioxide, methane, nitrous oxide,

and hydrofluorocarbons”— qualify as “physical [and]

chemical * * * substances[s] which [are] emitted into

*** the ambient air” within the meaning of section

7602(g). Massachussetis, 549 U.S. at 529. Second,

the Court distinguished Brown & Williamson by

noting that EPA regulation of motor-vehicle

greenhouse-gas emissions “would lead to no * **

extreme measures.” Jd. at 531. Massachusetts never

considered whether EPA could or should regulate

stationary-source greenhouse gases as air pollutants

under the PSD and Title V programs, where the

Clean Air Act’s rigid permitting thresholds would

produce burdens that exceed any semblance of

rational] regulation.

There are several ways for this Court to hold that

stationary-source greenhouse-gas emissions fall

outside EPA’s regulatory authority. One approach is

to hold that EPA’s authority to regulate “air

pollutant{s]” under the PSD and Title V programs

extends only to the pollutants for which EPA has

established NAAQS under 42 U.S.C. § 7407. See

supra at 11. Everyone in this case acknowledges

that the term “air pollutant” requires some limiting

cor. scruction; not even EPA contends that the PSD

and Title V permitting requirements apply to “all

airborne compounds oof whatever _ stripe.”

Massachusetts, 549 U.S. at 529. Yet once it is

acknowledged that only a subset of “air pollutant/s}”

are subject to regulation under PSD and Title V, an

agency cannot include carbon dioxide within the

scope of these regulated air pollutants without

running afoul of Brown & Williamson.

Another approach is to remand the Tailpipe Rule

on account of EPA’s failure to consider how its

decision to regulate mobile-source greenhouse-gas

emissions would trigger an obligation to regulate

greenhouse-gas emissions from stationary sources

under EPA’s construction of the Clean Air Act.

However the Court decides to resolve these

issues, the question whether EPA has statutory

authority to regulate stationary-source greenhouse-

gas emissions in light of the 100/250 tpy permitting

thresholds is appropriate for this Court’s review.

Tl. THis CoukRtT SHOULD GRANT CERTIORARI TO

RECONSIDER OR OVERRULE MASSACHUSETTSS

HOLDING IN LIGHT OF THE ABSURDITY OF APPLYING

THE STATUTORY PERMITTING REQUIREMENTS TO

CARBON DIOXIDE EMISSIONS

Massachusetts never considered the implications

of its holding for stationary-source greenhouse-gas

emissions. While it recognized that EPA regulation

of motor-vehicle greenhouse-gas emissions “would

lead to no *** extreme measures,” it did not

acknowledge or consider the absurdity of applying

the Clean Air Act’s 100/250 tpy permitting

thresholds to carbon dioxide emissions from

stationary sources. Petitioners respectfully request

that this Court grant certiorari to reconsider

Massachusetts’s holding that carbon dioxide and

other greenhouse gases unambiguously qualify as

“air pollutant[s]” within the meaning of the Act.

Even EPA recognizes that the term “air

pollutant” cannot possibly extend to “all airborne

compounds of whatever stripe,” nor can it extend to

all “physical [and] chemical * * * substance[s] which

[are] emitted into * * * the ambient air.” EPA insists

that the term “air pollutant” extends only to

“physical, chemical [or] biological” substances subject

to regulation under the Clean Air Act—even though

this limiting construction finds no support from this

Court’s decision in Massachusetts, which equated the

term “air pollutant” with “all airborne compounds of

whatever stripe,” and further insisted that this

construction of “air pollutant” was compelled and

could not be narrowed by EPA. See Massachusetts,

549 U.S. at 529; see also id. at 558 n.2 (Scalia, J.,

dissenting).

The problems with Massachusetts’s interpretation

of “air pollutant” are made painfully apparent by this

case. With carbon dioxide as an “air pollutant,”

every building that emits more than 100 or 250 tpy

of carbon dioxide becomes subject to permitting

requirements, a result that boosts the number of

permits required from 15,000 to more than 6 million,

increases annual permitting costs from $12 million to

$1.5 billion, and raises the number of man-hours

required to administer these programs from 151,000

to 19,700,000. EPA deems these results so absurd

that it simply refuses to apply the Clean Air Act as

written. See Tailoring Rule, Pet. App. 108a, 293a-

297a. EPA also does not agree with Massachusetts’s

all-encompassing definition of “air pollutant” because

it refused to deem stationary-source greenhouse-gas

emissions “air pollutant{s]” under the statute until

after it had promulgated its Endangerment Finding

and the Tailpipe Rule. See Timing Rule, 75 Fed.

Reg. 17,004.

Stare decisis is “not an inexorable command,” see

Payne v. Tennessee, 501 U.S. 808, 827-28 (1991), and

this Court has not hesitated to reconsider or overrule

cases that have proven “unworkable” or “legitimately

vulnerable to serious reconsideration,” Vasquez v.

Hillery, 474 U.S. 254, 266 (1986). Massachusetts’s

holding that carbon dioxide “unambiguous/ly]”

qualifies as an “air pollutant” under the Clean Air

Act should be reconsidered in light of the

preposterous results that are produced under the

PSD and Title V programs.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

GREG ABBOTT JONATHAN F. MITCHELL

Attorney General of Texas Solicitor General

Counsel of Record

DANIEL T. HODGE

First Assistant MICHAEL P. MURPHY

Attorney General JAMES P. SULLIVAN

Assistant Solicitors General

J. REED CLAY, JR.

Senior Counsel to the OFFICE OF THE

Attorney General ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

jonathan. mitchell@

texasattorneygeneral.gov

April 19, 2013 (512) 936-1700

APPENDIA

| Supreg Cond, US

Filey

12 4269 APR 19 2013

OOFILE OF THz Cleow |

No.

3n the Supreme Court of the Anited States

STATE OF TEXAS, ET AL.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY AND ROBERT

PERCIASEPE, ACTING ADMINISTRATOR, U.S.

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

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME I

GREG ABBOTT JONATHAN F.. MITCHELL

Attorney General of Texas Solicitor General

DANIEL T. HODGE Counsel of Record

First Assistant MICHAEL P. MURPHY

Attorney General JAMES P. SULLIVAN

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

jonathan.mitchell@

texasattorneygeneral.gov

(512) 936-1700

————

TABLE OF CONTENTS

VOLUME I:

APPENDIX A: Order of U.S. Court of Appeals

for the District of Columbia Circuit Dismissing

Petitions for Review of Timing and Tailoring

Rules and Denying Other Petitions for Review ..

APPENDIX B: Opinion of U.S. Court of

Appeals for the District of Columbia Circuit ......

APPENDIX C: U.S. Environmental Protection

Agency, Prevention of Significant

Deterioration and Title V Greenhouse Gas

Tailoring Rule, 75 Fed. Reg. 31,514 (June 3,

2010) (“Tailoring Rule”) .......................ccecceeseeeeeeees

VOLUME II:

APPENDIX D: Order of U.S. Court of Appeals

for the District of Columbia Circuit Denying

SE GN icnnisiencennanennensuiicandenenebeeninatationbnnnin

APPENDIX E: Order of U.S. Court of Appeals

for the District of Columbia Circuit Denying

Petitions for Rehearing En Banc of Chamber

of Commerce of the United States of America

and National Association of Manufacturers, et

TD. cnnnsssnesomsnseimmnensiearneianasieienpeninnenieinninimenemenanneen

Page

530a

APPENDIX F: Order of U.S. Court of Appeals

for the District of Columbia Circuit Denying

Petition for Rehearing En Banc of Pacific

II ns scssciccrpeidiadciidesentecdeuinmiinntshecmianncinns 589a

APPENDIX G: Federal Statutes.....................:00+ 591a

APPENDIX H: Federal Regulations.................... 620a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 09-1322 September Term, 2011

Filed On: June 26, 2012

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL.,

PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

STATE OF MICHIGAN, ET AL.,

INTERVENORS

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

1030, 10-1035, 10-1036, 10-1037, 10-1038, 10-1039,

10-1040, 10-1041, 10-1042, 10-1044, 10-1045, 10-

1046, 10-1234, 10-1235, 10-1239, 10-1245, 10-1281,

10-1310, 10-1318, 10-1319, 10-1320, 10-1321

No. 10-1073

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL.,

PETITIONERS

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, 10-124, 10-1125, 10-1126, 10-1127, 10-1128,

10-1129, 10-1131, 10-1132, 10-1145, 10-1147, 10-

1148, 10-1199, 10-1200, 10-1201, 10-1202, 10-1203,

10-1206, 10-1207, 10-1208, 10-1210, 10-1211, 10-

1212, 10-1213, 10-1216, 10-1218, 10-1219, 10-1220,

10-1221, 10-1222

No. 10-1092

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL.,

PETITIONERS

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

No. 10-1167

AMERICAN CHEMISTRY COUNCIL,

PETITIONER

Vv.

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 Final Actions of the

Environmental Protection Agency

BEFORE: Sentelle, Chief Judge, Rogers and Tatel,

Circuit Judges

JUDGMENT

These causes came on to be heard on the petitions

for review of final actions of the Environmental

Protection Agency and were argued by counsel. On

consideration thereof, it is

ORDERED and ADJUDGED that the Timing

and Tailoring petitions for review be dismissed, and

the remainder of the petitions be denied, in

accordance with the opinion of the court filed herein

this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Is/

Jennifer M. Clark

Deputy Clerk

Date: June 26, 2012

Opinion Per Curiam

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 28 and 29, 2012

Decided June 26, 2012

No. 09-1322

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL.,

PETITIONERS

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 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, dr. entered

appearances.

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 Kenneth T. Cuccinelli, IT, Attorney General,

Stephen R. McCullough, Senior Appellate Counsel,

Charles E. James Jr., Chief Deputy Attorney

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

General.

Greg Abbott, Attorney General, Office of the

Attorney General for the State of Texas, Bill Cobb,

Deputy Attorney General for Civil Litigation, J. Reed

Clay, Jr., Special Assistant and Senior Counsel to

the Attorney General, Jonathan F. Mitchell, Solicitor

General, Michael P. Murphy, Assistant Solicitor

General, Luther Strange III, Attorney General, Office

of the Attorney General for the State of Alabama,

Pamela Jo Bondi, Attorney General, Office of the

Attorney General for the State of Florida, Gregory F.

Zoeller, Attorney General, Office of the Attorney

General for the State of Indiana, Jack Conway,

Attorney 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 Nebraska, Katherine J. Spohn, Special Counsel to

the Attorney General, Wayne Stenehjem, Attorney

General, 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 of South Dakota, Roxanne

Giedd, Chief, Civil Litigation Division, Mark L.

Shurtleff, Attorney General, Office of the Attorney

General for the State of Utah, and Kenneth T.

Cuccinelli, 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

Hannon, 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

Massachusetts, argued the cause for State and

Environmental kIntervenors in_ support. of

respondents. With her on the briefs were Martha

Coakley, Attorney General, William L. Pardee,

Attorney Assistant General, Sean H. Donahue,

10a

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, Deputy Attorneys General, Joseph R.

Biden, III, Attorney General, Office of the Attorney

General for the State of Delaware, Valerie M.

Satterfield, Deputy Attorney General, George Jepsen,

Attorney General, Office of the Attorney General for

the State of Connecticut, Kimberly P. Massicotte,

Matthew I. Levine, Scott N. Koschwitz, Assistant

Attorneys General, Lisa Madigan, Attorney General,

Office of the Attorney General for the State of

Illinois, Gerald T. Karr, Assistant 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, Mary E. Raivel,

Assistant Attorney General, Michael A. Delaney,

Attorney General, Office of the Attorney General for

the State of New Hampshire, K. Allen Brooks, Senior

Assistant Attorney General, William J. Schneider,

Attorney General, Office of the Attorney General for

the State of Maine, Gerald D. Reid, Assistant

Attorney General, Lori Swanson, Attorney General,

Office of the Attorney General for the State of

Minnesota, Jocelyn F. Olson, Assistant Attorney

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

the Attorney General for the State of New Mexico,

Stephen R. Farris, Assistant Attorney General, Eric

T. Schneiderman, Attorney General, Office of the

Attorney General for the State of New York, Michael

J. Myers and Yueh-Ru Chu, Assistant Attorneys

lla

General, John Kroger, Attorney General, Office of

the Attorney General for the State of Oregon, Paul

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

McKenna, Attorney General, Office of the Attorney

General for the State of Washington, Leslie R.

Seffern, Assistant Attorney General, Peter F.

Kilmartin, Attorney General, Office of the Attorney

General for the State of Rhode Island, Gregory S.

Schultz, Special Assistant Attorney General, William

H. Sorrell, Attorney General, Office of the Attorney

General for the State of Vermont, Thea J. Schwariz,

Assistant Attorney General, Christopher King,

Assistant 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.

12a

No. 10-1073

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL.,

PETITIONERS

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 Agency Action

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

13a

Abbott, Attorney General, Bill Cobb, Deputy

Attorney General, J. Reed Clay, dr., Special

Assistant and Senior Counsel to the Attorney

General, Michael P. Murphy and James P. Sullivan,

Assistant Solicitors General, Luther Strange,

Attorney General, Office of the Attorney General for

the State of Alabama, Herman Robinson, Donald

Trahan, Kathy M. Wright, Gary C. Rikard, John

Bruning, Attorney General, Office of the Attorney

General for the State of Nebraska, Katherine J.

Spohn, Special Counsel, Wayne Stenehjem, Attorney

General, Office of the Attorney General for the State

of North Dakota, Margaret Olson, Assistant Attorney

General, Alan Wilson, Attorney General, Office of the

Attorney General for the State of South Carolina, J.

Emory Smith, dr., 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, I,

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 ffor’ 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. Kaauss, Shannon S. Broome, Timothy K.

Webster, Roger R. Martella, Eric Groten, Patrick R.

l4a

Day, John A. Bryson, Matthew G. Paulson, John P.

Elwood, Paul D. Phillips, James A. Holtkamp,

Shannon L. Goessling, Harry W. MacDougald,

William H. Lewis, Jr., Ronald J. Tenpas, Gordon R.

Alphonso, Edward A. Kazmarek, Chet M. Thompson,

Neal J. Cabral, Scott C. Oostdyk, Richard P.

Hutchison, John J. McMackin, Jr., Robin S. Conrad,

Sheldon Gilbert, Michael W. Steinberg, Levi

McAllister, Jeffrey A. Rosen, Robert R. Gasaway,

Jeffrey Bossert Clark, William H. Burgess, Ashley C.

Parrish, Cynthia A.M. Stroman, Ellen Steen, Leslie

Sue Ritts, Peter Glaser, Mark E. Nagle, Terry J.

Satterlee, Thomas J. Grever, Margaret Claiborne

Campbell, Bryon W. Kirkpatrick, Quentin Riegel,

Elizabeth Gaudio, Elizabeth Henry Warner, Harry

Moy Ng, Michele Marie Schoeppe, Thomas J. Ward,

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

Clement, Matthew Dukes, Virginia L. Hudson, and

David B. Salmons entered appearances.

Jonathan S. Massey was on the brief for amicus

curiae Municipal Gas Commission of Missouri.

John G. Horne, II, Samuel B. Boxerman and

Leslie A. Hulse were on the brief for amici curiae the

Commonwealth of Kentucky and the American

Chemistry Council in support of petitioners. Angus

Macbeth 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 <im N. Smaczniak,

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

Gunter, IJ and Michele L. Walter, Counsel, U.S.

15a

Environmental Protection Agency, entered

appearances.

Sean H. Donahue and Michael J. Myers argued

the causes for State and Environmental Intervenors

in support of respondents. With them on the briefs

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

Ceronsky, Petere Zalzal, Eric T. Schneiderman,

Attorney General, Office of the Attorney General for

the State of New York, Barbara D. Underwood,

Solicitor 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

linois, Gerald T. Karr, Assistant Attorney General,

Joanne Spalding, Nathan Matthews, Craig Holt

Segall, Kamala D. Harris, Attorney General, Office

of the Attorney General for the State of California,

Kathleen A. Kenealy, Senior Assistant Attorney

General, Susan Durbin, Raissa Lerner, Marc N.

Melnick, and Nicholas Stern, Deputy Attorneys

General, Martha Coakley, Attorney General, Office of

the Attorney General for the Commonwealth of

Massachusetts, William L. Pardee and Carol lancu,

Assistant Attorneys 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, 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

16a

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. Schuliz,

Special Assistant Attorney General, 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 Oregon, 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 Attorneys

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

Deputy Assistant Attorneys General, Office of the

Attorney General for the State of California, entered

appearances.

17a

No. 10-1092

COALITION FOR RESPONSIBLE REGULATION, INC.,

ET AL..,

PETITIONERS

Vv.

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

COO

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.

18a

Steinberg, Levi McAllister, John J. McMackin Jdr.,

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. Stroman, Mark E. Nagle, Michael

Higgins, Ellen Steen, Timothy K. Webster, Roger R.

Martella, Matthew G. Paulson, Charles H. Knauss,

Shannon S. Broome, Quentin Riegel, Elizabeth

Gaudio, Thomas J. Ward, Harry Moy Ng, and

Michele Marie Schoeppe.

Greg Abbott, Attorney General, Office of the

Attorney General for the State of Texas, Bill Cobb,

Deputy Attorney General for Civil Litigation,

Jonathan F. Mitchell, Solicitor General, J. Reed Clay

Jr., Special Assistant and Senior Counsel to the

Attorney General, Michael P. Murphy, Assistant

Solicitor General, Luther Strange, Attorney General,

Office of the Attorney General for the State of

Alabama, Samuel 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, Katherine J. Spohn, Special Counsel to

the Attorney General, Wayne K. Stenehjem, Attorney

General, Office of the Attorney General for the State

of North Dakota, Margaret Olson, Assistant Attorney

General, Alan Wilson, Attorney General, Office of the

Attorney General for the State of South Carolina, J.

Emory Smith, Jr., Assistant Deputy Attorney

General, Marty Jackley, Attorney General, Office of

the Attorney General for the State of North Dakota,

Roxanne Giedd, Chief, Civil Litigation Division, and

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

19a

the Attorney General for the Commonwealth of

Virginia, were on the briefs for State Petitioners and

Supporting 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

Silverman, 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

California, argued the cause for intervenor State of

California. 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, Megan Ceronsky, Vickie L. Patton, Peter

Zalzal, Joseph R. Biden, lil, Attorney General, Office

20a

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 Attorne:’ General for the State of Maine,

Gerald D. Reid, Assistant Attorney General, Martha

Coakley, Attorney 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, Assistant Attorney-in-Charge,

William H. Sorrell, Attorney General, Office of the

Attorney General for the State of Vermont, Thea J.

Schwartz, Assistant Attorney General, Eric T.

Schneiderman, Attorney General, Office of the

Attorney General for the State of New York, Michael

J. Myers and Yueh-Ru Chu, Assistant Attorneys

General, Peter F. Kilmartin, Attorney General, Office

of the Attorney General for the State of Rhode

Island, Gregory S. Schultz, Special Assistant

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

2la

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

curiae Institute for Policy Integrity at New York

University School of Law in support of respondents.

22a

No. 10-1167

AMERICAN CHEMISTRY COUNCIL,

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY AND

LISA PEREZ JACKSON, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, ET AL.,

INTERVENORS

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, J/r.,

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.

23a

Amanda Shafer Berman and Perry M. Rosen,

Attorneys, U.S. Department of Justice, and Elliott

Zenick and Howard J. Hoffman, Counsel, U.S.

Environmental Protection Agency, were on the brief

for respondents. Jon M. Lipshultz, Senior Counsel,

U.S. Department of Justice, entered and 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

respondents.

Before: SENTELLE, Chief Judge; ROGERS and

TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Following the Supreme Court’s

decision in 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)(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 greenhouse gases to obtain construction

24a

and operating permits. But because immediate

regulation of all such sources would result in

overwhelming permitting burdens on permitting

authorities and sources, EPA issued the Timing and

Tailoring Rules, in which it determined that only the

largest stationary sources would initially be subject

to permitting requirements.

Petitioners, various states and industry groups,

challenge all these rules, arguing that they are based

on improper constructions of the CAA and are

otherwise arbitrary and capricious. But for the

reasons set forth below, we conclude: 1) the

Endangerment Finding and Tailpipe Rule are

neither arbitrary nor _ capricious; 2) EPA's

interpretation of the governing CAA provisions is

unambiguously correct; and 3) no petitioner has

standing to challenge the Timing and Tailoring

Rules. We thus dismiss for lack of jurisdiction all

petitions for review of the Timing and Tailoring

Rules, and deny the remainder of the petitions.

We begin with a brief primer on greenhouse

gases. As their name suggests, when released into

the atmosphere, these gases act “like the ceiling of a

greenhouse, trapping solar energy and retarding the

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

U.S. at 505. A wide variety of modern human

activities result in greenhouse gas emissions; cars,

power plants, and industrial sites all release

significant amounts of these heat- trapping gases. In

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

temperatures has coincided with a _ significant

increase in the concentration of {greenhouse gases] in

the atmosphere.” Jd. at 504-05. Many scientists

25a

believe that mankind’s greenhouse gas emissions are

driving this climate change. These scientists predict

that global climate change will cause a host of

deleterious consequences, including drought,

increasingly severe weather events, and rising sea

levels.

The genesis of this litigation came in 2007, when

the Supreme Court held in Massachusetts v. EPA

that greenhouse gases “unambiguous[ly]” may be

regulated as an “air pollutant” under the Clean Air

Act (“CAA”). Id. at 529. 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 definition of “air pollutant” “embraces

all airborne compounds 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. Id. 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.” Id. at 533. The Court thus directed EPA to

determine “whether sufficient information exists to

make an endangerment finding” for greenhouse

gases. Id. at 534.

26a

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

pollutant” an “aggregate group of six long-lived and

directly-emitted greenhouse gases” that are “well

mixed” together in the atmosphere and cause global

climate change: carbon dioxide, methane, nitrous

oxide, hydroflourocarbons, perflourocarbons, and

sulfur hexafluoride. Jd. at 66,536-37. Following

“common practice,” EPA measured the impact of

these gases on a “carbon dioxide equivalent basis,”

(COge) which is based on the gases’ “warming effect

relative to carbon dioxide...over a_ specified

timeframe.” Id. at 66,519. (Using the carbon dioxide

equivalent equation, for example, a mixture of X

amount of nitrous oxide and Y amount of sulfur

hexafluoride is expressed as Z amount of COge).

After compiling and considering a considerable body

of scientific evidence, EPA concluded that motor-

vehicle emissions of these six well-mixed gases

“contribute to the total greenhouse gas air pollution,

and thus to the climate change problem, which is

reasonably anticipated to endanger public health and

welfare.” Id. at 66,499.

Next, and pursuant to the CAA’s requirement

that EPA establish motor-vehicle emission standards

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

anticipated to endanger public health or welfare,” 42

27a

U.S.C. § 7521(a)(1), the agency promulgated its

Tailpipe Rule for greenhouse gases. Light-Duty

Vehicle Greenhouse Gas Emission Standards and

Corporate 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

economy standards issued by the National Highway

Traffic Safety Administration (NHTSA). Id. at

25,326.

Under EPA’s longstanding interpretation of the

CAA, the Tailpipe Rule automatically triggered

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

permitting if they have the potential to emit over 250

tpy of “any air pollutant.” Jd. § 7479(1). The second

provision, Title V, requires state-issued operating

permits for stationary sources that have the

potential to emit at least 100 tpy of “any air

pollutant.” Jd. § 7602G). EPA has long interpreted

the phrase “any air pollutant” in both these

provisions to mean any air pollutant that is

regulated under the CAA. See Requirements for

Preparation, Adoption, and Submittal of

Implementation Plans; Approval and Promulgation

of Implementation Plans (“1980 Implementation Plan

28a

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

1980) ( °) program); Prevention of Significant

Deterioraiwn 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

regulation and applicability). And once the Tailpipe

Rule set motor-vehicle emission standards for

greenhouse gases, they became a regulated pollutant

under the Act, requiring PSD and Title V greenhouse

permitting.

Acting pursuant to this longstanding

interpretation of the PSD and Title V programs, EPA

issued two rules phasing in stationary source

greenhouse gas regulation. First, in the Timing Rule,

EPA concluded that an air pollutant becomes

“subject to regulation” under the Clean Air Act—-and

thus subject to PSD and Title V permitting—only

once a regulation requiring control of that pollutant

takes effect. Reconsideration of Interpretation of

Regulations That Determine Pollutants Covered by

Clean Air Act Permitting Programs (“Timing Rule”),

75 Fed. Reg. 17,004 (Apr. 2, 2010). Therefore, EPA

concluded, major stationary emitters of greenhouse

gases would be subject to PSD and Title V permitting

regulations on January 2, 2011—the date on which

the Tailpipe Rule became effective, and thus, the

date when greenhouse gases first became regulated

under the CAA. Id. at 17,019.

Next, EPA promulgated the Tailoring Rule. In

the Tailoring Rule, EPA noted that greenhouse gases

are emitted in far greater volumes than other

pollutants. Indeed, millions of industrial, residential,

and commercial sources exceed the 100/250 tpy

statutory emissions threshold for COge. Tailoring

29a

Rule, 75 Fed. Reg. at 31,534-36. Immediately adding

these sources to the PSD and Title V programs

would, EPA predicted, 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 on!'y the largest sources—those

exceeding 75,000 or 100,000 tpy COge, 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

regulated industries—filed petitions for review of

EPA’s greenhouse gas regulations, contending that

the agency misconstrued the CAA and otherwise

acted arbitrarily and capriciously. This appeal

consolidates the petitions for review of the four

aforementioned rules: the Endangerment Finding,

the Tailpipe Rule, the Timing Rule, and the

Tailoring Rule.

“The Clean Air Act empowers us to reverse the

Administrator’s action in rulemaking if it is

‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” Med.

Waste Inst. & Energy Recovery Council v. EPA, 645

30a

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 construction of the statute.”

Id. at 843.

This opinion proceeds in several steps. Part Il

explains why the Endangerment Finding was neither

arbitrary nor capricious, while Part III does the same

for the Tailpipe Rule. Turning to stationary source

regulation, Part IV examines whether any

petitioners may timely challenge EPA’s longstanding

interpretation of the PSD statute. Because we

conclude that they may, Part V addresses the merits

of their statutory arguments, and explains why

EPA’s interpretation of the CAA was compelled by

the statute. Next, Part VI explains why petitioners

lack standing to challenge the Timing and Tailoring

Rules themselves. Finally, Part VII disposes of

several arguments that have nothing to do with the

rules under review, and thus are not properly before

us.

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

sla

decision 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 scientific record, which is before us in the

present review, and determined that “greenhouse

gases in the atmosphere may reasonably be

anticipated both to endanger public health and to

endanger public welfare.” Endangerment Finding, 74

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

vehicle emissions of greenhouse gases “contribute to

the total greenhouse gas air pollution, and thus to

the climate change problem, which is reasonably

anticipated to endanger public health and welfare.”

Id. at 66,499.

State and Industry Petitioners challenge several

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

interpretation of CAA § 202(a)(1), which sets out the

endangerment-finding standard; (2) the adequacy of

the scientific record supporting the Endangerment

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

of endangerment to public health or welfare created

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 administrative record.

32a

Industry Petitioners contend that EPA

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

the Endangerment Finding to a _ science-based

judgment devoid of considerations of policy concerns

and regulatory consequences. They assert that CAA

§ 202(a)(1) requires EPA to consider, eg., the

benefits of activities that require greenhouse gas

emissions, the effectiveness of emissions regulation

triggered by the Endangerment Finding, and the

potential for societal adaptation to or mitigation of

climate change. They maintain that eschewing those

considerations also made the Endangerment Finding

arbitrary and capricious.

These contentions are foreclosed by the language

of the statute and the Supreme Court’s decision in

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

states in relevant part that EPA’s Administrator

shall by regulation prescribe (and from time to

time revise) in accordance with the provisions

of this section, standards applicable to the

emission of any air pollutant from any class or

classes of new motor vehicles or new motor

vehicle engines, 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)

33a

requires EPA to answer only two questions: whether

particular “air pollution”—here, greenhouse gases—

"may reasonably be anticipated to endanger public

health or welfare,” and whether motor-vehicle

emissions “cause, or contribute to” that

endangerment.

These questions require a “scientific judgment”

about the potential risks greenhouse gas emissions

pose to public health or welfare—not policy

discussions. Massachusetts v. EPA, 549 U.S. at 534.

In Massachusetts v. EPA, the Supreme Court

rebuffed an attempt by EPA itself to inject

considerations of policy into its decision. At the time,

EPA had “offered a laundry list of reasons not to

regulate” greenhouse gases, including

that a number of voluntary Executive Branch

programs already provide an_ effective

response to the threat of global warming, that

regulating greenhouse gases might impair the

President’s ability to negotiate with “key

developing nations” to reduce emissions, and

that curtailing motor-vehicle emissions would

reflect “an inefficient, piecemeal approach to

address the climate change issue.”

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

reasoned 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

34a

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.” Jd. at 533-34. The additional

exercises State and Industry Petitioners would have

EPA undertake—e.g., performing a _ cost-benefit

analysis for greenhouse gases, gauging the

effectiveness of whatever emission standards EPA

would enact to limit greenhouse gases, and

predicting society’s adaptive response to the dangers

or harms caused by climate change—do not inform

the “scientific judgment” that § 202(a)(1) 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 Industry Petitioners put forth only

address what might happen were EPA to answer

that question in the affirmative. As EPA stated in

the Endangerment Finding, such inquiries “muddle

the rather straightforward 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 following § 202(a)(1), § 202(a)(2),

requires that EPA address limited questions about

the cost of compliance with new emission standards

and the availability of technology 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 addressing the question

“whether policy concerns can inform EPA’s actions in

35a

the event that it makes such a finding,” 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 the

statute.” Id. 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 because

statutes should be interpreted to avoid absurd

results, EPA should have considered at least the

“absurd” consequences that would follow from an

endangerment finding for greenhouse gases.

Specifically: having made an endangerment finding,

EPA will proceed to promulgate emission standards

under § 202(a)(1). Issuing those standards triggers

regulation—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 Tailoring Rule

to raise the statutory thresholds, see infra Part VI.

However “absurd” Petitioners consider this

consequence, though, it is still irrelevant to the

36a

endangerment inquiry. That EPA adjusted the

statutory thresholds to accommodate regulation of

greenhouse gases emitted by stationary sources may

indicate that the CAA is a regulatory scheme less-

than- perfectly tailored to dealing with greenhouse

gases. But the Supreme Court has already held that

EPA indeed wields the authority to regulate

greenhouse gases under the CAA. See Massachusetts

v. EPA. The plain language of § 202(a)(1) of that Act

does not leave room for EPA to consider as part of

the endangerment inquiry the stationary-source

regulation triggered by an endangerment finding,

even if the degree of regulation triggered might at a

later stage be characterized as “absurd.”

State and Industry Petitioners next challenge the

adequacy of the scientific record underlying the

Endangerment Finding, objecting to both the type of

evidence upon which EPA relied and EPA’s decision

to make an Endangerment Finding in light of what

Industry Petitioners view as significant scientific

uncertainty. Neither objection has merit.

As an initial matter, State and Industry

Petitioners question EPA’s reliance on “major

assessments” addressing greenhouse gases and

climate change issued by the Intergovernmental

Panel on Climate Change (IPCC), the U.S. Global

Climate Research Program (USGCRP), and the

National Research Council (NRC). Endangerment

Finding, 74 Fed. Reg. at 66,510—-11. These peer-

reviewed assessments synthesized thousands of

individual studies on various aspects of greenhouse

37a

gases and climate change and drew “overarching

conclusions” about the state of the science in this

field. Id. at 66,511. The assessments 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

argument 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 difference that much of the

scientific evidence in large part consisted of

“syntheses” of individual studies and research. Even

individual studies and research papers often

synthesize past work in an area and then build upon

it. This is how science works. EPA is not required to

38a

re-prove the existence of the atom every time it

approaches a scientific question.

Moreover, it appears from the record that EPA

used the assessment reports not as substitutes for its

own judgment but as evidence upon which it relied to

make that judgment. EPA evaluated the processes

used to develop the various assessment reports,

reviewed their contents, and considered the depth of

the scientific consensus the reports represented.

Based on these evaluations, EPA determined the

assessments represented the best source material to

use in deciding whether greenhouse gas emissions

may be reasonably anticipated to endanger public

health or welfare. Endangerment Finding, 74 Fed.

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

along with comments relevant to the scientific

considerations involved to determine whether the

evidence warranted an endangerment finding for

greenhouse gases as it was required to do under the

Supreme Court’s mandate in Massachusetts v. EPA.

Industry Petitioners also assert that the scientific

evidence does not adequately support’ the

Endangerment Finding. As we have stated before in

reviewing the science-based decisions of agencies

such as EPA, “[a]lthough we perform a searching and

careful inquiry into the facts underlying the agency’s

decisions, we will presume the validity of agency

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

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

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

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

to the agency when it is evaluating scientific data

39a

within its technical expertise.” Jd. (internal

quotation marks omitted).

The body of scientific evidence marshalled by EPA

in support of the Endangerment Finding is

substantial. EPA’s scientific evidence of record

included support for the proposition that greenhouse

gases trap heat on earth that would otherwise

dissipate into space; that this “greenhouse effect”

warms the climate; that human activity is

contributing to increased atmospheric levels of

greenhouse gases; and that the climate system is

warming.

Based on this scientific record, EPA made the

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

the recently observed climate change is “very likely”

the observed increase in anthropogenic greenhouse

gas emissions. Endangerment Finding, 74 Fed. Reg.

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

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

physical understanding” of the impacts of various

natural and manmade changes on the climate

system. For instance, EPA relied on evidence that

the past half-century of warming has occurred at a

time when natural forces such as solar and volcanic

activity likely would have produced _ cooling.

Endangerment Finding, Response to Comments

(RTC) Vol. 3, at 20. Other evidence supports EPA's

conclusion that the observed warming pattern—

warming of the bottommost layer of the atmosphere

and cooling immediately above it—is consistent with

greenhouse-gas causation. Id.

EPA further relied upon evidence of historical

estimates of past climate change, supporting EPA’s

conclusion that global temperatures over the last

40a

half-century are unusual. Endangerment Finding, 74

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

EPA relied place high confidence in the assertion

that global mean surface temperatures over the last

few decades are higher than at any time in the last

four centuries. Technical Support Document for the

Endangerment Finding (TSD), at 31. These studies

also show, albeit with significant uncertainty, that

temperatures at many individual locations were

higher over the last twenty-five years than during

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

For its third line of evidence that anthropogenic

emissions of greenhouse gases spurred the perceived

warming trend, EPA turned to computer-based

climate-model simulations. Scientists have used

global climate models built on basic principles of

physics and scientific knowledge about the climate to

try to simulate the recent climate change. These

models have only been able to replicate the observed

warming by including anthropogenic emissions of

greenhouse gases in the simulations. Endangerment

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

To recap, EPA had before it substantial record

evidence that anthropogenic emissions of greenhouse

gases “very likely” caused warming of the climate

over the last several decades. EPA further had

evidence of current and future effects of this

warming on public health and welfare. Relying again

upon substantial scientific evidence, EPA determined

that anthropogenically induced climate change

threatens both public health and public welfare. It

found that extreme weather events, changes in air

quality, increases in food- and water-borne

pathogens, and increases in temperatures are likely

4la

to have adverse health effects. Jd. at 66,497-98. The

record also supports EPA’s conclusion that climate

change endangers human welfare by creating risk to

food production and agriculture, forestry, energy,

infrastructure, ecosystems, and wildlife. Substantial

evidence further supported EPA’s conclusion that the

warming resulting from the greenhouse’ gas

emissions could be expected to create risks to water

resources and in general to coastal areas as a result

of expected increase in sea level. Jd. at 66,498.

Finally, EPA determined from substantial evidence

that motor-vehicle emissions of greenhouse gases

contribute to climate change and thus to the

endangerment of public health and welfare.

Industry Petitioners do not find fault with much

of the substantial record EPA amassed in support of

the Endangerment Finding. Rather, they contend

that the record evidences too much uncertainty to

support that judgment. But the existence of some

uncertainty does not, without more, warrant

invalidation of an endangerment finding. If a statute

is “precautionary in nature” and “designed to protect

the public health,” and the relevant evidence is

“difficult to come by, uncertain, or conflicting because

it is on the frontiers of scientific knowledge,” EPA

need not provide “rigorous step-by-step proof of cause

and effect” to support an endangerment finding.

Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976).

As we have stated before, “Awaiting certainty will

often allow for only reactive, not preventive,

regulation.” Jd. at 25.

Congress did not restrict EPA to remedial

regulation when it enacted CAA § 202(a). That

section mandates that EPA promulgate new

42a

emission standards if it determines that the air

pollution at issue “may reasonably be anticipated to

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

§ 7521(a)(1). This language requires a precautionary,

forward-looking scientific judgment about the risks

of a particular air pollutant, consistent with the

CAA’s “precautionary and preventive orientation.”

Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130, 1155

(D.C. Cir. 1980). Requiring that EPA find “certain”

endangerment of public health or welfare before

regulating greenhouse gases would effectively

prevent EPA from doing the job Congress gave it in

§ 202(a)—utilizing emission standards to prevent

reasonably anticipated endangerment from maturing

into concrete harm. Cf. id. (“[RJequiring EPA to wait

until it can conclusively demonstrate that a

particular effect is adverse to health before it acts is

inconsistent with both the [CAA]’s precautionary and

preventive orientation and the nature of the

Administrator’s statutory responsibilities. Congress

provided that the Administrator is to use his

judgment in setting air quality standards precisely to

permit him to act in the face of uncertainty.”).

In Massachusetts v. EPA the Supreme Court

confirmed that EPA may make an endangerment

finding despite lingering scientific uncertainty.

Indeed, the Court held that the existence of “some

residual uncertainty” did not excuse EPA’s decision

to decline to regulate greenhouse _ gases.

Massachusetis v. EPA, 549 U.S. at 534. To avoid

regulating emissions of greenhouse gases, EPA

would need to show “scientific uncertainty ...so

profound that it precludes EPA from making a

reasoned judgment as to whether greenhouse gases

43a

contribute to global warming.” Jd. Clearly, then, EPA

may issue an endangerment finding even while the

scientific record still contains at least “some residual

uncertainty.” Industry Petitioners have shown no

more than that.

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

the scientific evidence before EPA and reach our own

conclusion. This is not our role. As with other

reviews of administrative proceedings, we do not

determine the convincing force of evidence, nor the

conclusion it should support, but only whether the

conclusion reached by EPA is_ supported by

substantial evidence when considered on the record

as a whole. See, e.g., New York v. EPA, 413 F.3d 3, 30

(D.C. Cir. 2005). When EPA evaluates scientific

evidence in its bailiwick, we ask only that it take the

scientific record into account “in a rational manner.”

Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1187

(D.C. Cir. 1981). Industry Petitioners have not

shown that EPA failed to do so here.

State Petitioners, here led by Texas, contend that

the Endangerment Finding is arbitrary and

capricious because EPA did not “define,” “measure,”

or “quantify” either the atmospheric concentration at

which greenhouse gases endanger public health or

welfare, the rate or type of climate change that it

anticipates will endanger public health or welfare, or

the risks or impacts of climate change. According to

Texas, without defining these thresholds and

distinguishing “safe” climate change from climate

change that endangers, EPA’s Endangerment

Finding is just a “subjective conviction.”

44a

It is true that EPA did not provide a quantitative

threshold at which greenhouse gases or climate

change will endanger or cause certain impacts to

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

does not require that EPA set a precise numerical

value as part of an endangerment finding. Quite the

opposite; the § 202(a)(1) inquiry necessarily entails a

case-by- case, sliding-scale approach to

endangerment because “[djanger...is not set by a

fixed probability of harm, but rather is composed of

reciprocal elements of risk and harm, or probability

and severity.” Ethyl, 541 F.2d at 18. EPA need not

establish a minimum threshold of risk or harm

before determining whether an air _ pollutant

endangers. It may base an endangerment finding on

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

lesser harm” or any combination in between. Id.

Ethyl is instructive. There, EPA made an

endangerment finding for airborne lead. During its

endangerment inquiry, EPA initially tried to do what

Texas asks of it here: find a specific concentration of

the air pollutant below which it would be considered

“safe” and above which it would endanger public

health. Jd. at 56. However, EPA abandoned that

approach because it failed to account for “the wide

variability of dietary lead intake” and lacked

predictive value. EPA substituted a “more

qualitative” approach, which relied on “predictions

based on uncertain data” along with clinical studies.

Id. at 56-57. This court upheld the endangerment

finding that used that qualitative approach despite

the lack of a specific endangerment “threshold.”

In its essence, Texas’s call for quantification of

the endangerment is no more than a specialized

45a

version of Industry Petitioners’ claim that the

scientific record contains too much uncertainty to

find endangerment. EPA relied on a substantial

record of empirical data and scientific evidence,

making many specific and often quantitative findings

regarding the impacts of greenhouse gases on

climate change and the effects of climate change on

public health and welfare. Its failure to distill this

ocean of evidence into a specific number at which

greenhouse gases cause “dangerous” climate change

is a function of the precautionary thrust of the CAA

and the multivariate and sometimes uncertain

nature of climate science, not a sign of arbitrary or

capricious decision-making.

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

pollutant” that are the subject of the Endangerment

Finding as an aggregate of six greenhouse gases,

which EPA called “well mixed greenhouse gases”:

carbon dioxide (CO9), methane (CH4), nitrous oxide

(Ng O), hydrofluorocarbons (HFCs), perfluorocarbons

(PFCs), and sulfur hexafluoride (SFg). Industry

Petitioners argue that EPA’s decision to include

PFCs and SF¢g in this group of greenhouse gases was

arbitrary and capricious primarily because motor

vehicles generally do not emit these two gases.

No petitioner for review of the Endangerment

Finding has established standing to make this

argument. Industry Petitioners concede that EPA’s

decision to regulate PFCs and SFg along with the

other four greenhouse gases does not injure any

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

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

46a

fact resulting from EPA’s inclusion of these two

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

greenhouse gases.” At oral argument, Industry

Petitioners asserted for the first time that certain

utility companies—members of associations that

petitioned for review of the Endangerment Finding—

own utility transformers that emit SFg. However,

they never demonstrated or even definitively

asserted that any of these companies would not be

subject to regulation or permitting requirements but

for EPA’s decision to include SF¢ as part of the “well-

mixed greenhouse gases” that are the subject of the

Endangerment Finding. See Sierra Club v. EPA, 292

F.3d 895, 898-900 (D.C. Cir. 2002) (requiring that a

petitioner seeking review of agency action

demonstrate standing by affidavit or other evidence

if standing is not “self-evident” from the

administrative record). Absent a petitioner with

standing to challenge EPA’s inclusion of PFCs and

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

jurisdiction to address the merits of Industry

Petitioners’ contention.

EPA did not submit the Endangerment Finding

for review by its Science Advisory Board (SAB).

Industry Petitioners claim that EPA’s failure to do so

violates its mandate to “make available” to the SAB

“any proposed criteria document,’ standard,

limitation, or regulation under the Clean Air Act” at

the time it provides the same “to any other Federal

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

§ 4365(c)(1); see Am. Petroleum Inst., 665 F.2d at

1188.

47a

To begin with, it is not clear that EPA provided

the Endangerment Finding “to any other Federal

agency for formal review and comment,” which

triggers this duty to submit a regulation to the SAB.

EPA only submitted a draft of the Endangerment

Finding to the Office of Information and Regulatory

Affairs pursuant to Executive Order 12,866. EPA

contends that this was merely an informal review

process, not “formal review and comment”—at least

when compared with a _ statutory review-and-

comment requirement in which other agencies are

given the opportunity to provide written comments

about the impacts of a proposed regulation on the

reviewing agency’s universe of responsibility. See,

e.g., 49 U.S.C. § 32902(j). Industry Petitioners failed

to respond to this contention.

In any event, even if EPA violated its mandate by

failing to submit the Endangerment Finding to the

SAB, Industry Petitioners have not shown that this

error was “of such central relevance to the rule that

there is a substantial likelihood that the rule would

have been significantly changed if such errors had

not been made.” 42 U.S.C. § 7607(d)(8); see Am.

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

standard to EPA’s failure to submit an ozone

standard to the SAB).

Lastly, State Petitioners maintain that EPA erred

by denying all ten petitions for reconsideration of the

Endangerment Finding. Those petitions asserted

that internal e- mails and documents released from

the University of East Anglia’s Climate Research

Unit (CRU)—a contributor to one of the global

temperature records and to the IPCC’s assessment

48a

report—undermined the scientific evidence

supporting the Endangerment Finding by calling

into question whether the IPCC scientists adhered to

“best science practices.” EPA’s Denial of the Petitions

To Reconsider the Endangerment and Cause or

Contribute Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act (“Reconsideration

Denial”), 75 Fed. Reg. 49,556, 49,556-57 (Aug. 13,

2010). The petitions pointed to factual mistakes in

the IPCC’s assessment report resulting from the use

of non-peer-reviewed studies and several scientific

studies postdating the Endangerment Finding as

evidence that the Endangerment Finding was

flawed. Id.

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

petitions for reconsideration accompanied by a 360-

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

determined that the petitions did not provide

substantial support for the argument that the

Endangerment Finding should be revised. According

to EPA, the petitioners’ claims based on the CRU

documents were exaggerated, contradicted by other

evidence, and not a material or reliable basis for

questioning the credibility of the body of science at

issue; two of the factual inaccuracies alleged in the

petitions were in fact mistakes, but both were

“tangential and minor” and did not change the key

IPCC conclusions; and the new scientific studies

raised by some petitions were either already

considered by EPA, misinterpreted or

misrepresented by petitioners, or put forth without

acknowledging other new studies. Jd. at 49,557—58.

49a

EPA is required to convene a proceeding for

reconsideration of a rule if a party raising an

objection to the rule

can demonstrate to the Administrator that it

was impracticable to raise such objection

within such time or if the grounds for such

objection arose after the period for public

comment (but within the time specified for

judicial review) and if such objection is of

central relevance to the outcome of the rule.

42 U.S.C. § 7607(d)(7)(B). For the purpose of

determining whether to commence reconsideration of

a rule, EPA considers an objection to be of “central

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

substantial support for the argument that the

regulation should be revised.” Reconsideration

Denial, 75 Fed. Reg. at 49,561.

State Petitioners have not provided substantial

support for their argument that the Endangerment

Finding should be revised. State Petitioners point

out that some studies the IPCC referenced in its

assessment were not peer-reviewed, but they ignore

the fact that (1) the IPCC assessment relied on

around 18,000 studies that were peer-reviewed, and

(2) the IPCC’s report development procedures

expressly permitted the inclusion in the assessment

of some non-peer-reviewed studies (“gray” literature).

Moreover, as EPA determined, the limited

inaccurate information developed from the gray

literature does not appear sufficient to undermine

the substantial overall evidentiary support for the

Endangerment Finding. State Petitioners have not,

50a

as they assert, uncovered a “pattern” of flawed

science. Only two of the errors they point out seem to

be errors at all, and EPA relied on neither in making

the Endangerment Finding. First, as _ State

Petitioners assert, the IPCC misstated the

percentage of the Netherlands that is below sea

level, a statistic that was used for background

information. However, the IPCC corrected the error,

and EPA concluded that the error was “minor and

had no impact,” and the Endangerment Finding did

not refer to the statistic in any way. Jd. at 49,576—77.

Second, the IPCC acknowledged misstating the rate

at which Himalayan glaciers are receding. EPA also

did not rely on that projection in the Endangerment

Finding. Id. at 49,577.

State Petitioners also contend that a new study

contradicts EPA’s reliance on a projection of more

violent storms in the future as a result of climate

change, but the study they cite only concerns past

trends, not projected future storms. The record

shows that EPA considered the new studies on storm

trends and concluded that the studies were

consistent with the Endangerment Finding. In sum,

State Petitioners have failed to show that these

isolated “errors” provide substantial support for their

argument to overturn the Endangerment Finding.

State Petitioners’ further argument that EPA

erred in denying reconsideration fails as well. These

Petitioners claim EPA erred by failing to provide

notice and comment before denying the petitions for

reconsideration because EPA’s inclusion of a 360-

page RTP amounted to a “revision of the

Endangerment Finding, and revision of a rule

5la

requires noiice and comment. The RTP, however,

appears to be exactly what EPA called it—a response

to the petitions for reconsideration, not a revision of

the Endangerment Finding itself. EPA certainly may

deny petitions for reconsideration of a rule and

provide an explanation for that denial, including by

providing support for that decision, without

triggering a new round of notice and comment for the

rule.

Hil.

State and Industry Petitioners contend that in

promulgating the Tailpipe Rule, EPA relied on an

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

arbitrary and capricious in failing to justify and

consider the cost impacts of its conclusion that the

Rule triggers stationary-source regulation under the

PSD and Title V provisions. They do not challenge

the substantive standards of the Rule and focus

principally on EPA’s failure to consider the cost of

stationary-source permitting requirements triggered

by the Rule. Positing an absurd-consequences

scenario, Petitioners maintain that if EPA had

considered these costs it “would have been forced” to

exclude carbon dioxide from the scope of the emission

standards, to decline to issue greenhouse gas

emission standards at all, or “to interpret the statute

so as not to automatically trigger stationary source

regulation.” Industry Tailpipe Br. 17; see also

Industry Tailpipe Reply Br. 8-9. Both the plain text

of Section 202(a) and precedent refute Petitioners’

contentions.

Section 202(a)(1) provides:

52a

The Administrator shall by regulation

prescribe ...standards applicable to the

emission of any air pollutant from any class or

classes of new motor vehicles or new motor

vehicle engines, which in his judgment cause,

or contribute to, air pollution which may

reasonably be anticipated to endanger public

health or welfare.

42 U.S.C. § 7521(a)(1). By employing the verb “shall,”

Congress vested a non-discretionary duty in EPA.

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

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

refutes Industry Petitioners’ contention that EPA

had discretion to defer issuance of motor- vehicle

emission standards on the basis of stationary-source

costs. Neither the adjacent text nor the statutory

context otherwise condition this clear “language of

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

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

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

promulgation of the Tailpipe Rule on the basis of its

trigger of stationary-source permitting requirements

under the PSD program and Title V.

The Supreme Court’s decision in Massachusetts v.

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

“If EPA makes a finding of endangerment, the Clean

Air Act requires the [a]gency to regulate emissions of

the deleterious pollutant from new motor vehicles.”

549 U.S. at 533. “Under the clear terms of the Clean

Air Act, EPA can avoid taking further action only if

it determines that greenhouse gases do not

contribute to climate change or if it provides some

reasonable explanation as to why it cannot or will

not exercise its discretion to determine whether they

53a

do.” Id. (emphasis added). In the Endangerment

Finding, EPA determined that wmotor-vehicle

emissions contribute to greenhouse gas emissions

that, in turn, endanger the public health and

welfare; the agency therefore was in no position to

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

promulgation of the Tailpipe Rule. Given the non-

discretionary duty in Section 202(a)(1) and the

limited flexibility available under Section 202(a)(2),

which this court has held relates only to the motor-

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

statutory basis on which it could “ground [any]

reasons for” further inaction, Massachusetts v. EPA,

549 U.S. at 535.

The plain text of Section 202(a)(1) also negates

Industry Petitioners’ contention that EPA had

discretion to defer the Tailpipe Rule on the basis of

NHTSA’s authority to regulate fuel economy. The

Supreme Court dismissed a near-identical argument

in Massachusetts v. EPA, rejecting the suggestion

that EPA could decline to regulate carbon-dioxide

emissions because the Department of Transportation

(DOT) had independent authority to set fuel-

efficiency standards. Jd. at 531-32. “[T]hat DOT sets

mileage standards in no way licenses EPA to shirk

its environmental responsibilities,” because EPA’s

duty to promulgate emission standards derives from

“a statutory obligation wholly independent of DOT’s

mandate to promote energy efficiency.” Jd. at 532.

Just as EPA lacks authority to refuse to regulate on

the grounds of NHTSA’s regulatory authority, EPA

cannot defer regulation on that basis. A comparison

of the relevant statutes bolsters this conclusion.

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

54a

maximum feasible average fuel economy..., the

Secretary of Transportation shall consider... the

effect of other motor vehicle standards of the

Government on fuel economy...”), with 42 U.S.C.

§ 7521(a) (including no such direction). Nor, applying

the same reasoning, was EPA required to treat

NHTSA’s proposed regulations as establishing the

baseline for the Tailpipe Rule. Furthermore, the

Taiulpipe Rule provides benefits above and beyond

those resulting from NHTSA’s fuel- economy

standards. See, e.g., Ta

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