Record and brief — Chamber of Commerce of the United States v. Envtl. Prot. Agency

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UPREME COURT

F THE UNITED STATES

No. 12-1272

Vide 12-1146, 12-

1248, 12-1254,

12-1268, 12-1269

Title: Chamber of Commerce of the United States, et al., Petitioners

Environmental Protection Agency, et al.

Docketed: April 24, 2013

Linked with 12A871

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

Case Nos. (09-1322, et al.)

Decision Date: June 26, 2012

Rehearing

Denied: December 20, 2012

Questions

Presented

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

Mar 5 2013 Application (12A871) to extend ine time to file a petition for a writ of certioran

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

Mar 7 2013 Application (12A871) granted by The Chief Justice extending the time to file

until April 19, 2013.

Mar 14 2013 Application (12A909) 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 18 2013 Application (12A920) 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 20 2013 Application (12A909) granted by The Chief Justice extending the time to file

until April 19, 2013.

Mar 25 2013 Application (12A920) 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 24, 2013)

Apr 19 2013 Appendix of Chamber of Commerce of the United States, et al. filed. (Volumes

I-V)

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

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

May 9 2013 Response in support of the petition for writ of certioran from respondent

Peabody Energy Corporation filed.

May 13 2013 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

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

neither party, received from counsel for the Federal Respondent.

May 14 2013 Letter of respondent National Environmental Development Association's Clean

Air Project in support of petition

May 16 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 21 2013 Waiver of right of respondent Pamela Jo Bondi, Attorney General of Florida to

respond filed.

May 23 2013 Bnef amici cunae of Scientists filed VIDED.

May 24 2013 Brief amicus curiae of Institute for Trade, Standards and Sustainable

Development filed.

May 24 2013 Bnef amicus cunae of Mountain States Legal Foundation filed.

May 24 2013 Brief amici curiae of Economists Thomas C. Schelling, Vernon L. Smith, and

Robert W. Hahn filed.

May 24 2013 Brief amici curiae of Administrative Law Professors, and The Judicial Education

Jun 6 2013

Jun 7 2013

Jul 12013

Jul 8 2013

Jul 22 2013

Aug 6 2013

Aug 7 2013

Oct 7 2013

Oct 15 2013

Oct 22 2013

Oct 24 2013

Oct 29 2013

Project filed.

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 brief in opposition in excess of word

limits, submitted to The Chief Justice.

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

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

not exceed 11,000 words.

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

VIDED.

Brief of Environmental Organization respondents in opposition filed. VIDED.

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

Reply of petitioners Chamber of Commerce of the United States, et al. filed

DISTRIBUTED for Conference of September 30, 2013.

DISTRIBUTED for Conference of October 11, 2013.

Petition GRANTED limited to the following Question: Whether EPA permissibly

determined that its regulation of greenhouse gas emissions from new motor

vehicles triggered permitting requirements under the Clean Air Act for

stationary sources that emit greenhouse gases. The cases are consolidated

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

Briefing proposal of the parties. VIDED

Letter from Coalition for Responsible Regulation, Inc., et el. regarding briefing

proposal. VIDED.

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

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

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

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

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

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

not exceed 10,000 words each. Reply briefs shall not exceed 18.000 words in

aggregate. VIDED

Nov 12013 Consent from petitioner Utility Air Regulatory Group to the filing of amicus

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

Nov 12013 The time to file joint appendix, petitioners’ briefs on the merits, and bnefs of

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

2013. VIDED

Nov 12013 The time to file respondents’ bnefs on the merits is extended to and including

January 21, 2014. VIDED

Nov 12013 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 72013 Consent to the filing of amicus curiae briefs, in support of either party, or of

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

Nov 8 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Southeastern Legal Foundation, Inc., et

al. VIDED.

Nov 8 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

niether party, received from counsel for Coalition for Responsible Regulation,

inc., et al. VIDED.11082013

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

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

VIDED.

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

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

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

neither party, received from counsel for Environmental Organizations, Center

for Biological Diversity, et al. VIDED.

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

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

neither party, received from counsel for Energy-intensive Manufacturers

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

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

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

United States of America, et al. VIDED.

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

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

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

VIDED.

Dec 92013 Brief of respondents Coalition for Responsible Regulation, |nc., 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 Brief 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 Brief amici curiae of Political Economists Henry N. Butler, et al. filed. VIDED

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

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

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

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

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

United States Congress filed. VIDED.

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

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

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

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

Business Associations. filed. VIDED.

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

(Distributed)

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

support of neither party filed. VIDED. (Distributed)

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

Dec 20 2013 CIRCULATED.

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

petitioners. VIDED.

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

(Distributed)

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

(Distributed)

Jan 21 2014 Bnref 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

Schoo! 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.

(Distnbuted)

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

support of petitioners filed. VIDED. (Distributed)

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

VIDED. (Distributed)

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

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

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

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

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

Washington, D. C.

PETITION

FOR

WRIT OF

CERTIORARI

RECORD 1 9 -19 79 Snare Con UE

APR 19 2013

OFFICE OF THE Cr ea :¢

3n the Supreme Court of the United States

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA, STATE OF ALASKA, AND

AMERICAN FARM BUREAU FEDERATION,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

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

RACHEL L. BRAND ROBERT R. GASAWAY

SHELDON GILBERT Counsel of Record

National Chamber JEFFREY A. ROSEN, P.C.

Litigation Center, Inc. JEFFREY BOSSERT CLARK

1615 H Street, NW ADITYA BAMZAI

Washington, DC 20062 WILLIAM H. BURGESS

(202) 463-5337 Kirkland & Ellis LLP

655 Fifteenth Street, N.W.

MICHAEL C. GERAGHTY Washington, DC 20005

Attorney General robert.gasaway@kirkland.com

STEVEN E. MULDER (202) 879-5000

State of Alaska

1031 W. 4th Avenue Counsel for Petitioner

Anchorage, AK 99501 Chamber of Commerce of the

(907) 269-5274 United States of America

[Additional Counsel Listed on Signature Page]

anata rene eetemneenl eaiidaiitldtintiadiennamtantateneeiemmnmenteennt innit

WILSON-EPES PRINTING Co., Inc. — (202) 789-0086 — WASHINGTON, D.C. 20002

of Congress

QUESTIONS PRESENTED

The Environmental Protection Agency (“EPA”)

promulgated a series of four broad-ranging and inter-

connected rules to control emissions of greenhouse

gases. In proposing the last rule in the sequence,

EPA acknowledged that it would create a result “so

contrary to what Congress had in mind — and that in

fact so undermines what Congress attempted to ac-

complish with the [statute’s] requirements — that it

should be avoided under the ‘absurd results’ doc-

trine.” App. 1837a. EPA nonetheless finalized the

rule and then, in an attempt to cure the absurdity,

rewrote codified limitations in the Clean Air Act.

The questions presented are:

1. Whether, once an agency has identified absurd

results produced by its construction of a complex

statutory scheme as a whole, the agency may deem

the identified absurdity irrelevant to the construction

of some individual provisions within the scheme and

a justification for rewriting others.

2. Whether EPA’s determination that greenhouse

gases “may reasonably be anticipated to endanger

public health or welfare” and otherwise are regulable

under section 202(a)(1) of the Clean Air Act, 42

U.S.C. § 7521(a)(1), was “not in accordance with law”

or was “arbitrary, capricious, {and} an abuse of dis-

cretion,” § 7607(d)(9)(A).

3. Whether EPA incorrectly determined that all

“air pollutants” regulated by the agency under the

Clean Air Act’s motor vehicle emissions provision, 42

U.S.C. § 7421(a)(1), must also be regulated under the

Act's Prevention of Significant Deterioration of Air

Quality and Title V programs when emitted from sta-

tionary sources.

‘:

RULE 14.1(b) STATEMENT

Petitioners are the Chamber of Commerce of the

United States of America, State of Alaska, and Amer-

ican Farm Bureau Federation. The Chamber of

Commerce of the United States of America was peti-

tioner or petitioner-intervenor as to all of the chal-

lenged agency actions addressed by the consolidated

judgment below. The State of Alaska and the Ameri-

can Farm Bureau Federation were petitioners and/or

petitioner-intervenors in cases addressed by the con-

solidated judgment below.

Respondents herein, who were also respondents in

the cases below, are the Environmental Protection

Agency and the Administrator of the Environmental

Protection Agency. Lisa P. Jackson held the office of

Administrator until February 15, 2013, and Robert

Perciasepe currently holds that office in an acting ca-

pacity.

Other parties who were petitioners in the cases

addressed by the consolidated judgment below are

the following: American Chemistry Council; Ameri-

can Frozen Food Institute; American Fuel & Petro-

chemical Manufacturers; American Iron and Steel In-

stitute; American Petroleum Institute; Brick Industry

Association; Clean Air Implementation Project; Corn

Refiners Association; Glass Association of North

America; Independent Petroleum Association of

America; Indiana Cast Metals Association; Michigan

Manufacturers Association; Mississippi Manufactur-

ers Association; National Association of Home Build-

ers; The National Association of Manufacturers; Na-

tional Federation of Independent Business; National

Oilseed Processors Association; North American Die

Casting Association; Portland Cement Association;

Specialty Steel Industry of North America; Tennessee

Chamber of Commerce and Industry; Western States

Petroleum Association; West Virginia Manufacturers

Association; Wisconsin Manufacturers and Com-

merce; Greg Abbott, Attorney General of Texas; Al-

pha Natural Resources, Inc.; Michele Bachmann, U.S.

Representative, Minnesota 6th District; Haley Bar-

bour, Governor of the State of Mississippi; Marsha

Blackburn, U.S. Representative, Tennessee 7th Dis-

trict; Kevin Brady, U.S. Representative, Texas 8th

District; Paul Broun, U.S. Representative, 10th Dis-

trict; Dan Burton, U.S. Representative, Indiana 5th

District; Glass Packaging Institute; Coalition for Re-

sponsible Regulation, Inc.; Collins Industries, Inc.;

Collins Trucking Company, Inc.; Commonwealth of

Virginia; Competitive Enterprise Institute; Nathan

Deal, U.S. Representative, Georgia 9th District; En-

ergy-Intensive Manufacturers’ Working Group on

Greenhouse Gas Regulation; Freedom Works; the Sci-

ence and Environmental Policy Project; Georgia Ag-

ribusiness Council, Inc.; Georgia Coalition for Sound

Environmental Policy, Inc.; Georgia Motor Trucking

Association, Inc.; Gerdau Ameristeel US Inc.; Phil

Gingrey, U.S. Representative, Georgia 11th District;

Great Northern Project Development, L.P.; Industrial

Minerals Association—North America; J&M Tank

Lines, Inc.; Kennesaw Transportation, Inc.; Steve

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

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

Landmark Legal Foundation; Langboard, Inc.-MDF;

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

Inc.; The Langdale Company; Langdale Farms, LLC;

Langdale Ford Company; Langdale Forest Products

Company; Langdale Fuel Company; Mark R. Levin;

John Linder, U.S. Representative, Georgia 7th Dis-

trict; Louisiana Department of Environmental Quali-

ty; Missouri Joint Municipal Electric Utility Commis-

sion; National Cattlemen’s Beef Association; National

Environmental Development Association’s Clean Air

Project; National Mining Association; Ohio Coal As-

sociation; Pacific Legal Foundation; Peabody Energy

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

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

Rohrabacher, U.S. Representative, California 46th

District; Rosebud Mining Co.; John Shadegg, U.S.

Representative, Arizona 3rd District; John Shimkus,

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

Carolina Public Service Authority; Southeast Trailer

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

State of Alabama; State of Nebraska; State of North

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

kota; State of Texas; Texas Agriculture Commission;

Texas Commission on Environmental Quality; Texas

General Land Office; Texas Public Utilities Commis-

sion; Texas Railroad Commission; Utility Air Regula-

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

sentative, Georgia 3rd District.

Intervenors for petitioners in cases addressed by

the consolidated judgment below—other than peti-

tioners herein—include Alpha Natural Resources,

Inc.; American Frozen Food Institute; American Fuel

& Petrochemical Manufacturers; American Petrole-

um Institute; Arkansas State Chamber of Commerce;

Associated Industries of Arkansas; Brick Industry

Association; Coalition for Responsible Regulation,

Inc.; Colorado Association of Commerce & Industry;

Commonwealth of Kentucky; Corn Refiners Associa-

tion; Glass Association of North America; Glass

Packaging Institute: Governor of Mississippi Haley

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

Idaho Association of Commerce and Industry; Inde-

pendent Petroleum Association of America; Indiana

Cast Metals Association; Industrial Minerals Associa-

tion North America; Kansas Chamber of Commerce

and Industry; Langdale Farms, LLC; Langdale Fuel

Company; Langdale Chevrolet-Pontiac, Inc; Langdale

Ford Company; Langboard, Inc--MDF; Langboard,

Inc.—OSB; Louisiana Department of Environmental

Quality; Louisiana Oil and Gas Association; Michigan

Manufacturers Association; Mississippi Manufactur-

ers Association; National Association of Manufactur-

ers; National Association of Home Builders; National

Cattlemen’s Beef Association; National Electrical

Manufacturers Association; National Environmental

Development Association’s Clean Air Project; Nation-

al Federation of Independent Business; National

Mining Association; National Oilseed Processors As-

sociation; Nebraska Chamber of Commerce and In-

dustry; North American Die Casting Association;

Ohio Coal Association; Ohio Manufacturers Associa-

tion; Peabody Energy Company; Pennsylvania Manu-

facturers Association; Portland Cement Association;

Rosebud Mining Company; South Coast Air Quality

Management District; Specialty Steel Industry of

North America; State of Florida; State of Georgia;

State of Indiana; State of Louisiana; State of Michi-

gan; State of Nebraaka; State of North Dakota; State

of Oklahoma; State of South Carolina; State of South

Dakota; State of Utah; Steel Manufacturers Associa-

tion; Tennessee Chamber of Commerce and Industry;

Utility Air Regulatory Group; Virginia Manufactur-

ers Association; Western States Petroleum Associa-

tion; West Virginia Manufacturers Association; and

Wisconsin Manufacturers & Commerce.

Intervenors for respondents in cases addressed by

the consolidated judgment below include Alliance of

Automobile Manufacturers; Association of Global Au-

tomakers; Center for Biological Diversity; City of

New York; Commonwealth of Massachusetts; Con-

servation Law Foundation; Environmental Defense

Fund; Georgia ForestWatch; Global Automakers; In-

diana Wildlife Federation; Michigan Environmental

Council; Natural Resources Council of Maine; Natu-

ral Resources Defense Council; National Wildlife

Federation; Ohio Environmental Council; Pennsylva-

nia Department of Environmental Protection; Sierra

Club; South Coast Air Quality Management District;

State of California; State of Connecticut; State of

Delaware; State of Illinois; State of Iowa; State of

Maine; State of Maryland; State of Minnesota; State

of New Hampshire; State of New Mexico; State of

New York; State of North Carolina; State of Oregon;

State of Rhode Island; State of Vermont; State of

Washington; Wetlands Watch; and Wild Virginia.

RULE 29.6 STATEMENT

No petitioner has a parent company, and no pub-

licly-held corporation has a 10% or greater ownership

interest in any petitioner.

vil

TABLE OF CONTENTS

Page(s)

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PETITION FOR A WRIT OF CERTIORARI.............. 1

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(TES aT eT 1

STATUTORY PROVISIONS INVOLVED.................. 1

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A. Statutory and regulatory framework.......... 4

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REASONS FOR GRANTING THE PETITION........ 17

1. EPA improperly deployed the “absurd

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II. EPA improperly failed to construe the

CAA in a manner that would avoid the

absurdity that resulted from its own

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A. EPA incorrectly construed section

202(a)(1)'s requirement that an air

pollutant “reasonably be anticipated

to endanger public health or

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B. EPA incorrectly determined that any

“air pollutant” regulated pursuant to

section 202(a) must also be regulated

under the PSD program. ........................... 28

C. EPA incorrectly exercised its

delegated authority in regulating

In cesiasutihieblasipeiticandinitadipdlndababammdbiinmonniédeineuens 29

Ill. This case presents recurring questions

of national importance. ...........................-.000++ 31

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APPENDIX CONTENTS

VOLUME I

U.S. Court of Appeals for the D.C. Circuit

Panel opinion, 684 F.3d 102

cc ateteinininhaitininedoniannnd la

Judgment

I atin eallaiatens 95a

Order denying rehearing en banc

RS EE 99a

Statement of Chief Judge Sentelle, and

Circuit Judges Rogers and Tatel,

concurring in denial of

rehearing en banc (Dec. 20, 2012)................... 103a

Statement of Circuit Judge Brown,

dissenting from denial of

rehearing en banc (Dec. 20, 2012)................... 107a

Statement of Circuit Judge Kavanaugh,

dissenting from denial of

rehearing en banc (Dec. 20, 2012)................... 133a

Order denying panel rehearing

it nat iealaiminncntiins 156a

Order re: briefing in “Endangerment Rule”

I I oa iscemcendeinibiitiideesbennanon 160a

Order re: briefing in “Tailpipe Rule” cases

Gs NUTT si crsiinsiettadliinetibesdiddsigsinbdeniiiiabinenanniines 164a

Order re: briefing in

“Timing Rule and Tailoring

Rule” cases (Mar. 21, 2011).........................200- 168a

Order re: briefing in “Historic Regulations”

I iene 172a

Order granting Motion for Coordination

of Related Cases (Dec. 10, 2010)..................... 176a

VOLUME II

Federal Register Notices

EPA, Endangerment and Cause or Contribute Find-

ings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act;

Final Rule,

74 Fed. Reg. 66,496 (Dec 15, 2009) ...........000.-. 180a

EPA, 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; Final Rule,

75 Fed. Reg. 49,556 (Aug. 13, 2010) ............... 413a

EPA, Reconsideration of Interpretation of

Regulations That Determine Pollutants

Covered by Clean Air Act Permitting

Programs; Final Rule,

75 Fed. Reg. 17,004 (Apr. 2, 2010).................. 598a

VOLUME III

EPA, Prevention of Significant Deterioration

and Title V Greenhouse Gas Tailoring

Rule; Final Rule,

75 Fed. Reg. 31,514 (June 3, 2010)................. 690a

VOLUME IV

EPA, Regulating Greenhouse Gas Emissions

Under the Clean Air Act; Advance

Notice of Proposed Rulemaking,

73 Fed. Reg. 44,354 (July 30, 2008).............. 1126a

VOLUME V

EPA, Prevention of Significant Deterioration

and Title V Greenhouse Gas Tailoring

Rule; Proposed Rule,

74 Fed. Reg. 55,292 (Oct. 27, 2009) ............. 1756a

Statutes

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Miscellaneous

Motion for Coordination of Related Cases

I i etic

Chamber of Commerce of the United States

of America’s Combined Petition for Panel

Rehearing or for Rehearing en banc

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sii

TABLE OF AUTHORITIES

Page(s)

Cases

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon,

I i eseiaideneenl 23

CSX Transp., Inc. v. McBride,

earn 23

Environmental Defense v. Duke Energy Corp.,

8 fT eae 29

Ethyl Corp. v. EPA,

Be LR 23

FDA v. Brown & Williamson Tobacco Corp.,

S&T ener EneE 17, 19, 30

Free Enterprise Fund v. Public Company

Accounting Oversight Board,

kL eT 32

Hamdan v. Rumsfeld,

leet 32

Kloeckner v. Solis,

ne ee, Ce. suieunesesasueuenusedsednmeens 3

Massachusetts v. EPA,

Be I I i cc cccncinnncisicinnenmmennnnasen 3, 4, 6, 7, 9,

PRE ne aN ea OE Paes 15, 22, 23, 27, 28, 29, 30

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

I satenliumnednctinnniesainan 30

Mova Pharm. v. Shalala,

140 F.3d 1060 (D.C. Cir. 1998).....................cceceeees 19

NLRB v. Federbush Co.,

eB 19

NRDC, Inc. v. EPA,

902 F.2d 962 (D.C. Cir. 1990)............c cece cece eee eeeee 24

Palsgraf v. Long Island R.R.,

By as Cs aie ee 23

Pub. Citizen v. U.S. Dep't of Justice,

ee es I iiiciecinetii aici ticks 18, 19, 20

Ragsdale v. Wolverine World Wide, Inc.,

ft REE eR eo ade 19

SEC v. Chenery Corp.,

Be es I incitiecenssianindiissiinpitiaiidlie eit tate 25

Tesoro Alaska Petroleum Co. v. FERC,

234 F.3d 1286 (D.C. Cir. 2000)...............00.00.0.. cee. 21

Waters v. Merchants’ Louisville Ins. Co..,

4k GS | eee 23

Whitman v. American Trucking Associations, Inc.,

gE REE nee S A eat: 27

Statutes

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Federal Register Notices

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the

Clean Air Act,

74 Fed. Reg. 66,496 (Dec. 15, 2009) ...........ccccceeeseee- 9

Light-Duty Vehicle Greenhouse Gas Emission

Standards and Corporate Average Fuel Economy

Standards; Final Rule,

75 Fed. Reg. 25,324 (May 7, 2010)........................ 11

Part 51-Requirements for Preparation, Adoption, and

Submittal of Implementation Plans,

43 Fed. Reg. 26,380 (June 19, 1978) ...........cccece0e0+- 6

Prevention of Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule,

75 Fed. Reg. 31,514 (June 3, 2010)................. 11, 12

Prevention of Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule; Proposed Rule,

74 Fed. Reg. 55,292 (Oct. 27, 2009).................cscceees 2

Requirements for Preparation, Adoption, and

Submittal of Implementation Plans; Approval and

Promulgation of Implementation Plans,

45 Fed. Reg. 52,676 (Aug. 7, 1980)........................ 11

Other Authorities

American Heritage Dictionary of the English

Language (4th ed. 2000) ......................... eee eeee ee 22, 23

Blackstone, William,

1 Commentaries on the

I ae er I sccctntncrcncccnscencenssenicnseinataente 18

Energy Independence and Security Act,

Pub. L. No. 110—140,

Re Ss TP: CE Ci Rteritccccisicncnnicinetnntninsnis 28

Exec. Order No. 12,866 (Sept. 30, 1993)..................... 9

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully submit this petition for a

writ of certiorari to review the judgment of the Unit-

ed States Court of Appeals for the District of Colum-

bia Circuit.

OPINIONS BELOW

The statement of the panel on rehearing en banc

is unpublished but electronically reported at 2012 WL

6621785. App. 99a. The panel opinion appears at

684 F.3d 102. App. la.

JURISDICTION

The panel rendered its decision on June 26, 2012.

The court of appeals then denied petitioners’ petition

for panel rehearing and rehearing en banc on Decem-

ber 20, 2012. On March 7, 20, and 25, 2013, the Chief

Justice extended petitioners’ respective deadlines for

filing a petition for certiorari to and including

April 19, 2013. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Clean Air Act (“CAA”),

42 U.S.C. § 7401 et seqg., are reproduced in the Ap-

pendix. App. 2097a-2129a.

STATEMENT

In the set of related rulemakings below, the Env’-

ronmental Protection Agency (“EPA”) sought to erect

the costliest, farthest reaching, and most intrusive

regulatory apparatus in the history of the American

administrative state — regulations to govern emis-

sions of greenhouse gases (“GHGs”) that could even-

tually touch practically every aspect of every industry

across the entire economy. If that were not enough to

warrant the Court’s review of the judgment below,

the unprecedented interpretive paths taken by EPA

surely are.

Starting from a premise that it should interpret

individual statutory provisions in isolation, EPA

reached an endpoint that, in its own words, is “so

contrary to what Congress had in mind — and that in

fact so undermines what Congress attempted to ac-

complish * * * — that it should be avoided under the

‘absurd results’ doctrine.” App. 1837a. This absurdi-

ty was sufficiently stark that “stationary sources”

regulated under the CAA’s programs designed for

utility and heavy industrial “sources” of air pollution

would include vast swaths of the economy never in-

tended to be within the Act’s ambit, including for the

first time thousands of multifamily dwellings and

even large single family homes. See Prevention of

Significant Deterioration and Title V Greenhouse Gas

Tailoring Rule; Proposed Rule, 74 Fed. Reg. 55,292,

55,338 (Oct. 27, 2009); App. 1756a, 1960a.

When faced with the admittedly absurd results

caused by its construction of some provisions of the

statute, EPA rewrote other provisions of the statute

rather than stopping to consider whether the absurd-

ity meant its statutory construction was wrong from

the outset. To address the fact that its construction

of the statute would sweep sources as small as indi-

vidual homes within the Clean Air Act’s ambit (which

Congress admittedly never intended), EPA “unilater-

ally” increased the statute’s emissions thresholds for

stationary pollution sources from “250 tons to 100,000

tons — a 400-fold increase.” App. 137a (Kavanaugh,

J., dissenting).

EPA took this path even though this Court’s opin-

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

nowhere compelled the interpretations made in the

agency rulemakings. To the contrary, the Court’s de-

cision in Massachusetts envisioned that any EPA

GHG regulations would not lead to “extreme

measures,” id. at 531, such as a wholesale, agency-

crafted, revision of statutory thresholds, and that

EPA would “ground its reasons for action or inaction

in the statute,” id. at 535.

As Judges Kavanaugh and Brown observed in

separate dissents from the denial of rehearing en

banc, “this is not the proper way to interpret a stat-

ute.” App. 138a (Kavanaugh, J., dissenting); see App.

118a-119a (Brown, J., dissenting). The existence of

an absurdity requires agencies and courts to inter-

pret ambiguous provisions or to exercise delegated

interpretive discretion to avoid the absurdity. Ab-

surd consequences have never been thought to confer,

until this case, a license for agencies (or courts) to

rewrite plain statutory language as the agency (or

court) sees fit. “Instead of ‘reading new words into

the statute’ to avoid absurd results, * * * the statute

should be interpreted so that ‘no absurdity arises in

the first place.” App. 138a (Kavanaugh, J., dissent-

ing) (quoting Kloeckner v. Solis, 133 S. Ct. 596, 607

(2012)). By allowing an agency to engage in a series

of statutory interpretations that produce a concededly

“absurd” version of the whole statute, and then allow-

ing it to declare the absurdity its jumping off point for

rewriting plain statutory text, the decision below pos-

es profound risks to the Constitution’s separation of

powers.

In the wake of its recent GHG rulemakings, EPA

enforces a Clean Air Act fundamentally different

from the one Congress enacted. This Court’s imme-

diate review of the panel’s error is necessary and ap-

propriate. No other court of appeals can consider

these EPA regulations because the D.C. Circuit has

exclusive review jurisdiction over these EPA rule-

makings. See 42 U.S.C. § 7607(b)(1). It is simply not

possible to await further developments in lower

courts. The petition for a writ of certiorari should be

granted.

A. Statutory and regulatory framework.

Distinct parts of the CAA authorize EPA to regu-

late emissions from motor vehicle engines and emis-

sions from stationary sources. In Massachusetts, this

Court interpreted the Act’s definition of “air pollu-

tant” for purposes of the motor-vehicle provision

without analyzing other aspects of the Act’s motor-

vehicle provision and without mentioning the Act's

stationary source provisions.

1. Under section 202(a)(1) of the CAA,

The Administrator shall by regulation

prescribe *** standards applicable to

the emission of any air pollutant from

any class or classes of new motor vehi-

cles 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). Similar terminology appears

throughout the CAA. See §§ 7521(a)(3)(D), (e); 7671n;

7547(a)(1), (4); 7411(b+)()(A), WRB), j&l:

7408(a)(1)(A); 7571(a)(2)(A); 7545(c)(1); 7422(a);

7415(a); 7511b(H(1)(A); 7429(e).

2. Under the CAA’s core program, EPA may set

standards for pollutants designated as national am-

bient air quality standards (“NAAQS”) pollutants —

requiring, for example, that the concentration of a

given NAAQS pollutant may not exceed more than a

certain number of parts per billion in the ambient air.

See 42 U.S.C. § 7407. Thus far, EPA has designated

six NAAQS pollutants, none of which ‘: a GHG: car-

bon monoxide, lead, nitrogen diox:de, ozone, particle

pollution, and sulfur dioxide.

Under the related “Prevention of Significant Dete-

rioration of Air Quality” (“PSD”) part of the CAA,

EPA determines whether a region of the country is in

“attainment” or “nonattainment” for each designated

NAAQS pollutant, or, alternatively, whether a region

is “unclassifiable” for that pollutant. 42 U.S.C.

§ 7407(d)(1)(A). An area in attainment is “any area

*** that meets the * * * ambient air quality stand-

ard for the pollutant.” § 7407(d)(1)(A)(@i). By con-

trast, an area in nonattainment is “any area that

does not meet (or that contributes to ambient air

quality in a nearby area that does not meet) the na-

tional * * * ambient air quality standard for the pol-

lutant.” § 7407(d)(1)(A)Q). Finally, an unclassifiable

area is any area that “cannot be classified on the ba-

sis of available information as meeting or not meeting

the * * * ambient air quality standard for the pollu-

tant.” § 7407(d)(1)(A)(iii). The PSD program applies

to those areas of the United States designated as in

“attainment” or “unclassifiable,” § 7471, and requires

permits for major emitting facilities embarking on

construction or modification projects in those regions,

§ 7475(a).

Section 165(a) of the CAA makes clear that the

PSD program establishes permitting requirements

solely for “major emitting facilities” located in at-

tainment or unclassifiable regions. Under section

165(a), “[n]o major emitting facility * * * may be con-

structed in any area to which this part applies un-

less” the facility obtains a PSD permit. 42 U.S.C.

§ 7475(a). To obtain a PSD permit, a covered source

must, among other things, install the “best available

control technology [BACT] for each pollutant subject

to regulation under [the CAA].” § 7475(a)(4).

Section 169(a) defines “major emitting facility,” for

the purposes of the PSD program, as a stationary

source “which emit[s], or [has] the potential to emit”

either 100 tons per year (“tpy”) or 250 tpy of “any air

pollutant.” 42 U.S.C. § 7479(1). Certain categories of

sources — for example, iron and steel mill plants —

qualify as “major emitting facilitfies]” if they have the

potential to emit over 100 tpy of “any air pollutant.”

Id. All other stationary sources are “major emitting

facilit[ies]” if they have the potential to emit over 250

tpy of “any air pollutant.” Jd. Similarly, under the

Act’s Title V, stationary sources must obtain state-

issued operating permits to establish compliance with

the PSD requirements, among others, if they have

the potential to emit at least 100 tpy of “any air pol-

lutant.” § 7602G). In 1978, EPA interpreted the Act

to define “major emitting facility” as a source that

emits major amounts of “any air pollutant regulated

under the [CAA].” Part 51-Requirements for Prepara-

tion, Adoption, and Submittal of Implementation

Plans, 43 Fed. Reg. 26,380, 26,382 (June 19, 1978).

3. In Massachusetts, the Court considered wheth-

er the term “any air pollutant” in the CAA’s new mo-

tor vehicle provision, section 202(a)(1), included

GHGs such as “[c]arbon dioxide, methane, nitrous ox-

ide, and hydrofluorocarbons.” 549 U.S. at 529; see 42

U.S.C. § 7602(g). After answering this question in

the affirmative, the Court remanded to EPA, noting

that it had not reached “whether on remand EPA

must make an endangerment finding” of the type re-

quired to promulgate regulations under section

202(a)(1). 549 U.S. at 534-535. While the Court not-

ed that in the event such a finding were made EPA

would “no doubt” have “significant latitude as to the

manner, timing, content, and coordination of its regu-

lations with those of other agencies,” it emphasized

that it was not precluding EPA from denying the

rulemaking petition altogether on grounds that other

portions of the Act cabined EPA’s regulatory authori-

ty: “[O)nce EPA has responded to a petition for rule-

making, its reasons for action or inaction must con-

form to the authorizing statute.” Id. at 533. The fi-

nal sentence of the Court’s analysis underscored the

point: “EPA must ground its reasons for action or in-

action in the statute.” Jd. at 535 (emphasis added).

B. Proceedings below.

1. On remand from this Court’s decision, EPA

opened a single regulatory docket, and issued a uni-

fied Advance Notice of Proposed Rulemaking

(‘ANPR”), to address GHG emissions. App. 1126a.

In the ANPR’s preface, the EPA Administrator ob-

served it had “become clear” that EPA’s regulation of

GHGs from motor vehicle emissions under section

202(a)(1) could “trigger[]” “regulation of smaller sta-

tionary sources that also emit GHGs — such as

apartment buildings, large homes, schools, and hospi-

tals,” resulting in “an unprecedented expansion of

EPA authority that would have a profound effect on

virtually every sector of the economy and touch every

household in the land.” App. 1130a-113la. The Ad-

ministrator explained that, in his view, the CAA was

“il]-suited for the task of regulating global greenhouse

gases.” App. 1131la.

Other agencies submitted letters included in the

ANPR that expressed concern about regulating GHGs

under the CAA. For example, the Department of

Transportation expressed concern “that attempting to

regulate [GHGs] under the [CAA] will harm the U.S.

economy while failing to actually reduce global [GHG]

emissions.” App. 1140a. The Department of Energy

expressed concern about “an enormously elaborate,

complex, burdensome and expensive regulatory re-

gime that would not be assured of significantly miti-

gating global atmospheric GHG concentrations and

global climate change.” App. 1157a. And the De-

partment of Commerce expressed concern that such

regulation “would impose significant costs on U.S.

workers, consumers, and producers and harm U.S.

competitiveness without necessarily producing mean-

ingful reductions in global GHG emissions.” App.

1182a.

EPA’s ANPR proposed to conduct a single rule-

making comprehensively addressing the propriety of

regulating GHGs under the CAA. But despite having

initially opened a single regulatory docket, EPA later

elected to proceed in piecemeal fashion (thus making

subsequent review in the court of appeals more diffi-

cult). EPA recognized that an affirmative endanger-

ment fading could make it impossible for it to abide

by statutory commands within the CAA. App. 1756a,

1836a-1837a. Yet despite recognizing the intercon-

nections between the provisions of the Act, EPA con-

ducted its administrative process in a fashion that

ensured each individual rulemaking construed the

Act’s individual provisions but none construed the

Act as a whole. And despite the sweeping scope of

the combined rulemakings, which authorize EPA to

regulate the energy consumption of buildings every-

where in the United States, nowhere did EPA ana-

lyze the combined rules’ total costs. Compare App

27a, 49a, with Massachusetts, 549 U.S. at 531 (re-

marking the EPA “would have to delay any action” to

“siv[e] appropriate consideration to the cost of com-

pliance”) (quoting 42 U.S.C. § 7521(a)(2)); see also

Executive Order 12,866 (Sept. 30, 1993) (requiring

cost-benefit analysis).

2. EPA’s rulemaking unfolded in a series of steps.

EPA first issued a finding that GHGs were anticipat-

ed to endanger public health or welfare, which it then

used as the predicate for promulgating emission

standards for motor vehicles. EPA next determined

that, having regulated motor vehicles, it was required

also to regulate stationary sources. Finally, because

the statutory thresholds for triggering regulation of

stationary sources would require regulation of mil-

lions of sources never contemplated by Congress,

EPA claimed authority to rewrite (and in fact re-

wrote) those regulation-triggering thresholds.

First, in the course of a rulemaking involving sole-

ly motor vehicles, EPA determined that a combina-

tion of six separate gases (including two not emitted

by motor vehicles) defined as a single “air pollutant”

were “reasonably [] anticipated to endanger public

health or welfare.” 42 U.S.C. § 7521(a)(1). See En-

dangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean

Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009); App.

180a. EPA measured the impact of these gases —

carbon dioxide, methane, nitrous oxide,

hydroflourocarbons, perflourocarbons, and _ sulfur

hexafluoride — on a “carbon dioxide equivalent basis”

that reflects the “warming effect” of each “relative to

carbon dioxide.” App. 29la. EPA concluded that mo-

tor-vehicle emissions of these gases “contribute to the

total greenhouse gas air pollution, and thus to the

climate change problem, which is reasonably antici-

pated to endanger public health and welfare.” App.

195a.

In making the Endangerment Finding, EPA relied

on analysis involving many steps between the emit-

ted GHGs and the anticipated endangerment. In ad-

dition, EPA adopted an analysis that was “largely

qualitative in nature, and is not reducible to precise

metrics or quantification” — without “establish[ing] a

specific threshold metric for each category of risk and

impacts” and without “necessarily placing the great-

est weight on those risks and impacts which have

been the subject of the most study or quantification.”

App. 31la-312a. This “qualitative” assessment cov-

ered a period of analysis spanning “from the current

time to the next several decades, and in some cases to

the end of this century.” App. 313a.

EPA rejected the view that it could consider only

“direct health effects such as respiratory or toxic ef-

fects associated with exposure to greenhouse gases.”

App. 3l4a. EPA determined that GHGs endangered

public “welfare” based on multi-step causation chains

leading to effects over the long term on (i) “food pro-

duction and agriculture,” (ii) “forestry,” (iii) “water

resources,” (iv) “sea level rise and coastal areas,”

(v) “energy, infrastructure, and settlements,” and

(vi) “ecosystems and wildlife.” App. 343a.

Second, as a consequence of its endangerment

finding, and pursuant to the CAA’s provision author-

izing EPA to establish motor-vehicle emission stand-

ards for “any air pollutant * * * which may reasona-

bly be anticipated to endanger public health or wel-

fare,” 42 U.S.C. § 7521(a)(1), EPA issued a “Tailpipe

Rule” setting emission standards for cars and light

trucks. Light-Duty Vehicle Greenhouse Gas Emission

Standards and Corporate Average Fuel Economy

Standards; Final Rule, 75 Fed. Reg. 25,324 (May 7,

2010).

Third, EPA determined that once the agency had

triggered regulation of GHGs from motor vehicles, it

was obliged automatically to regulate “stationary

sources” of GHGs under the PSD and Title V pro-

grams. EPA understood in making this determina-

tion that regulating stationary-source emissions of

carbon dioxide as a GHG means regulating the burn-

ing of fossil fuels, which in turn means regulating the

production and consumption of energy throughout the

economy. Nonetheless, EPA reasoned that, once the

Tailpipe Rule set motor-vehicle emission standards

for GHGs, those gases became regulated pollutants

under the Act, requiring PSD regulation and Title V

permitting as well. See Prevention of Significant De-

terioration and Title V Greenhouse Gas Tailoring

Rule, 75 Fed. Reg. 31,514 (June 3, 2010); App. 690a.

In reaching this conclusion, EPA relied on its

preexisting, pre-Massachusetts interpretation of the

CAA, under which emissions regulations under other

parts of the Act trigger regulation of stationary GHG

emitters because “any air pollutant” means any air

pollutant regulated under the CAA. See App. 871a-

881la; see also Requirements for Preparation, Adop-

tion, and Submittal of Implementation Plans; Ap-

proval and Promulgation of Implementation Plans, 45

Fed. Reg. 52,676, 52,711 (Aug. 7, 1980).

Because GHGs, especially carbon dioxide, are

emitted in far greater amounts and from many more

sources (including people) than other “air pollutants,”

EPA recognized that extending its preexisting inter-

pretation of the Act to GHGs would produce regulato-

ry effects so severe as to be “absurd.” App. 690a.

EPA recognized in particular that the energy con-

sumption practices of millions of industrial, residen-

tial, and commercial sources would newly become

subject to EPA regulation because those facilities’

GHG emissions would exceed the 100/250 tons-per-

year emission thresholds provided for by statute. The

number of facilities subject to PSD and Title V would

thus jump 400-fold — from 15 thousand to 6.1 mil-

lion. See App. 782a-798a, 813a & Table V-I. Its new

rules taken together, EPA acknowledged, would re-

quire an expenditure of $22.5 billion in paperwork

costs alone (compared to $74 million today, see id.)

plus billions more in compliance costs (which EPA

declined to estimate, App. 27a, 49a).

Having identified an absurdity inherent in its

statutory construction, EPA addressed the situation

by rewriting the statute, not revisiting the construc-

tion. Specifically, whereas Congress decided that the

PSD and Title V programs would apply to facilities

discharging more than either 100 or 250 tons per

year of regulated pollutants, the agency reworked the

statutory language and held henceforth the programs

would apply only to sources emitting greenhouse gas-

es in amounts more than 75,000 or 100,000 tons per

year — two new, EPA-invented thresholds. App.

690a. EPA contended that it was forced to engage in

this statutory rewriting because, after EPA had in-

terpreted the CAA to require regulation of GHGs

from stationary sources, the consequences of a

straightforward application of the statutory thresh-

olds were absurd:

To apply the statutory PSD and title V

applicability thresholds literally to

sources of GHG emissions would bring

tens of thousands of small sources and

modifications into the PSD program

each year, and millions of small sources

into the title V program. These extraor-

dinary increases in the scope of the per-

mitting programs would mean that the

programs would become several hun-

dred-fold larger than what Congress ap-

peared to contemplate. Moreover, the

great majority of additional sources

brought into the PSD and title V pro-

grams would be small sources that Con-

gress did not expect would need to un-

dergo permitting and that, at the pre-

eent time, in the absence of streamlined

permit procedures, would face unduly

high permitting costs.

App. 780a.

EPA asserted further authority to revise statutory

thresholds on grounds that it claimed were both “in-

tertwined” with and “independent” of the absurdity

canon. App. 817a. Specifically, EPA relied on an

“administrative necessity” doctrine, which it contend-

ed allows an agency to decline to “follow the literal

requirements” of a statute that “is impossible for the

agency to administer.” App. 827a-828a. And EPA

relied on a so-called “one-step-at-a-time” doctrine,

which it contended allows agencies to “implement

statutory mandates one step at a time.” App. 830a.

Having once rewritten statutory language on authori-

ty of the absurdity canon (and other doctrines), EPA

then claimed further discretion to rewrite the same

language by way of adjusting the invented thresholds

over time and as it sees fit. App. 844a.

Fourth, in a separate “Timing Rule,” EPA estab-

lished January 2, 2011 as the date when major sta-

tionary emitters of GHGs would become subject to

EPA regulation. See Reconsideration of Interpreta-

tion of Regulations That Determine Pollutants Cov-

ered by Clean Air Act Permitting Programs, 75 Fed.

Reg. 17,004 (Apr. 2, 2010); App. 598a.

8. A diverse coalition of more than seventy busi-

ness groups, public policy groups, and States chal-

lenged EPA’s GHG rules. In addition, several indus-

try and public policy groups petitioned for review of

EPA’s interpretation of the PSD permitting triggers

set forth in EPA’s 1978, 1980, and 2002 rules. Be-

cause 42 U.S.C. § 7607(b)(1) permits parties to peti-

tion for review of final agency action “within sixty

days’ of any “grounds arising after” the expiration of

the ordinary statutory review period, these petition-

ers explained that their challenges to the historical

rules did not ripen until 2010, when EPA first elected

to regulate GHGs under the CAA by promulgating

the Tailpipe Rule.

In a per curiam opinion, a panel of the D.C. Cir-

cuit, composed of then-Chief Judge Sentelle and

Judges Rogers and Tatel, dismissed the petitions for

review as to the Timing and Tailoring Rules and de-

nied the petitions for review as to the remainder of

the rules. App. 98a.

As an initial matter, although Massachusetts had

expressly declined to address whether EPA “must”

make an endangerment finding, the panel assumed

that the decision actually went farther. The panel

construed Massachusetts as holding “that EPA had a

‘statutory obligation’ to regulate harmful greenhouse

gases.” App. 18a.

Starting from this premise, the panel addressed

the heart of EPA’s analysis — the Endangerment

Finding. The panel held that the ultimate absurdity

EPA had identified was “irrelevant” to the initial en-

dangerment inquiry. App. 28a. It then concluded

that the Endangerment Finding rested upon an “un-

ambiguously correct” construction of the CAA and

was not arbitrary and capricious, in part because the

CAA “does not leave room for EPA to consider as part

of the endangerment inquiry the stationary-source

regulation triggered by an endangerment finding.”

App. 28a-29a.

The panel determined that the grounds-arising-

after challenges to EPA’s PSD permitting triggers

were timely at least as to two industry petitioners.

App. 50a-56a. The panel ruled, however, that no pe-

titioner had standing to challenge the Timing and

Tailoring Rules — the two rules acknowledging the

absurdity and rewriting the statute in its wake — be-

cause those rules supposedly served to ease regulato-

ry burdens that EPA had already set in motion via its

other GHG rulemakings. App. 88a.

4. The panel denied rehearing, and the full D.C.

Circuit denied rehearing en banc, with Judge

Kavanaugh and Judge Brown dissenting separately.

App. 99a.

Judge Kavanaugh opened his opinion by noting

this case is “plainly one of exceptional importance.”

App. 133a (Kavanaugh, J., dissenting). Judge

Kavanaugh reiterated the U.S. Chamber’s statement

that “the EPA regulations at issue here as ‘the most

burdensome, costly, far-reaching program ever adopt-

ed by a United States regulatory agency.” Jd. “By

requiring a vastly increased number of facilities to

obtain pre-construction permits,” Judge Kavanaugh

said, “EPA’s interpretation will impose enormous

costs on tens of thousands of American businesses,

with corresponding effects on American jobs and

workers; on many American homeowners who move

into new homes or plan other home construction pro-

jects; and on the U.S. economy more generally.” App.

142a.

Judge Kavanaugh noted that EPA had reserved

unto itself a right to adjust its invented 75,000 and

100,000 ton-per-year thresholds over time, thus

bringing more and more facilities into its program

through its own “unilateral discretion.” App. 137a

n.l. Judge Kavanaugh observed that “EPA’s asser-

tion of such extraordinary discretionary power both

exacerbates the separation of powers concerns in this

case and underscores the implausibility of EPA’s

statutory interpretation.” Jd. According to Judge

Kavanaugh, “[a]llowing agencies to exercise that kind

of statutory re-writing authority could significantly

enhance the Executive Branch’s power at the expense

of Congress’s and thereby alter the relative balance of

powers in the administrative process.” App. 138a.

Judge Brown, in turn, emphasized that EPA had

failed to properly interpret the “reasonably anticipat-

ed to endanger” language in section 202(a)(1): “In or-

der to reasonably anticipate that a pollutant will con-

tribute to air pollution that endangers public health

or welfare, the Agency would have to conclude that

pollution created by CO2 or another GHG is a reason-

ably direct cause of the damage to public health and

welfare.” App. 116a (emphasis added).

According to Judge Brown, “[q]uestions of public

health impacts from air pollution have consistently

been based on the direct — that is, inhalational —

effects of exposure to the pollutant,” as opposed to the

more indirect harms caused by climate change. App.

116a-117a; see also App. 118a (“If there can be this

much logical daylight between the pollutant and the

anticipated harm, there is nothing EPA is not author-

ized to do.”). Judge Brown further observed that

“Congress should not be presumed to have deferred to

agencies on questions of great significance more

properly resolved by the legislature.” App. 122a (cit-

ing FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000)). Both Judge Brown and Judge

Kavanaugh skeptically viewed EPA’s invocation of

the “absurd results” canon — as a kind of “abuse”

used “to preempt legislative prerogatives.” App. 121la

(Brown, J., dissenting); see also App. 154a

(Kavanaugh, J., dissenting). Far from minimizing

the importance of this case, the members of the origi-

nal panel responded with a joint statement acknowl-

edging that “the underlying policy questions and the

outcome of this case are undoubtedly matters of ex-

ceptional importance.” App. 106a.

REASONS FOR GRANTING THE PETITION

EPA’s GHG rulemakings violate an elementary

interpretive principle: Before using the absurdity

doctrine to rewrite codified numerical thresholds, an

agency must endeavor to construe the statute to

avoid the absurdity in the first instance. The “whole

statute” canon of construction requires that all statu-

tory provisions be considered together, a task that is

particularly important in the context of a complex

statutory scheme like the CAA. In the rulemakings

below, EPA could and should have construed the Act

as a whole, thus avoiding the need to rewrite numeri-

cal thresholds. Having failed to do so, the agency's

interpretation of the Act was “not in accordance with

law” or, at best, was “arbitrary, capricious, [and] an

abuse of discretion.” 42 U.S.C. § 7607(d)(9)(A).

I. EPA improperly deployed the “absurd re-

sults” canon.

EPA employed a novel and expansive interpreta-

tion of its authority to regulate pollutants that “may

reasonably be anticipated to endanger public health

or welfare,” 42 U.S.C. § 7521(a)(1). The agency rec-

ognized that its construction of the statute caused

consequences “so contrary to what Congress had in

mind” that they “should be avoided under the ‘absurd

results’ doctrine.” App. 1840a. The agency then re-

wrote other provisions of the statute to avoid the ab-

surdity of its initial construction. This interpretive

approach was fundamentally misguided.

1. The principle that statutes should be construed

to avoid absurd results “demonstrates a respect for

the coequal Legislative Branch, which we assume

would not act in an absurd way.” Pub. Citizen v. U.S.

Dep’t of Justice, 491 U.S. 440, 470 (1989) (Kennedy,

J., concurring in the judgment). As William Black-

stone explained, “the rule is, that where words bear

either none, or a very absurd signification, if literally

understood, we must a little deviate from the received

sense of them.” 1 W. Blackstone, Commentaries on

the Laws of England 60 (1765) (emphasis added).

Blackstone’s formulation recognized that “little” devi-

ations from legislative text — as opposed to wholesale

rewriting — could at times allow a court to construe

statutes more consistently with legislative intent

than “literal[]” application of the law.

Critically, the absurdity canon does not permit “an

unhealthy process of amending the statute by judicial

interpretation.” Pub. Citizen, 491 U.S. at 470 (Ken-

nedy, J., concurring in judgment). Where (as here) a

court or agency acknowledges absurd results that

would follow from a particular statutory interpreta-

tion, the proper course is to interpret the statute to

avoid the absurdity. See Mova Pharm. v. Shalala,

140 F.3d 1060, 1068 (D.C. Cir. 1998) (absurd results

do not grant the agency “a license to rewrite the stat-

ute”).

Such an approach is especially appropriate where

the provisions being interpreted are interwoven into

a complicated regime like the CAA. As Judge Hand

explained, statutory text lives a “communal exist-

ence” with the meaning of each word informing the

others and “all in their aggregate tak{ing] their pur-

port from the setting in which they are used.” NLRB

v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). A

reviewing court thus “should not confine itself to ex-

amining a particular statutory provision in isolation,”

but should instead determine “[t]he meaning — or

ambiguity — of certain words or phrases” by placing

those words “in context.” Brown & Williamson, 529

U.S. at 132-133. “Regardless of how serious the prob-

lem an administrative agency seeks to address, * * *

it may not exercise its authority in a manner that is

inconsistent with the administrative structure that

Congress enacted into law.” Ragsdale v. Wolverine

World Wide, Inc., 535 U.S. 81, 91 (2002) (quotation

marks and citations omitted).

Accordingly, to the extent the CAA contained am-

biguities or gaps, both EPA and the Court below were

obliged to fill in the gaps and interpret the ambigu-

ous terms to avoid absurd consequences. EPA should

have endeavored to construe the Act reasonably and

comprehensively — and not necessarily in a manner

that would most aggrandize its authority.

2. Instead of taking a lawful interpretive path,

EPA chose the “unhealthy process of amending the

statute by [agency and] judicial interpretation.” Pub.

Citizen, 491 U.S. at 470 (Kennedy, J., concurring in

judgment). After engaging in a series of statutory in-

terpretations and acknowledging the resulting ab-

surdity, EPA frankly discarded precise numerical

limitations that Congress had placed on its authority.

App. 780a.

Far from scrutinizing EPA’s highly unusual inter-

pretive method, the panel concluded that petitioners

could not challenge the absurd consequences that

concededly flow from the Endangerment Rule. First,

the panel claimed that the absurdity EPA had identi-

fied was “irrelevant” to the endangerment inquiry,

because the CAA “does not leave room for EPA to

consider as part of the endangerment inquiry the sta-

tionary-source regulation triggered by an endanger-

ment finding.” App. 29a. Second, when petitioners

argued the Tailoring Rule unlawfully attempted to

address a conceded absurdity by simply rewriting the

statute, the panel held that they lacked Article III

standing because EPA’s Tailoring Rule eased the

regulatory burdens earlier set in motion by EPA’s

Endangerment Rule. See App. 88a-89a.

The upshot was that the panel nowhere addressed

the absurdity that EPA acknowledges follows from its

construction of the CAA — thus allowing EPA to es-

cape judicial scrutiny of its rewriting of the Clean Air

Act. This cannot be right. Agencies may not “use

shell games to elude review.” Tesoro Alaska Petrole-

um Co. v. FERC, 234 F.3d 1286, 1293-1294 (D.C. Cir.

2000). The panel should have seen the agency’s pro-

cedural gerrymandering for what it was — an im-

proper means of sidestepping judicial review. And it

should have recognized that substituting much high-

er numerical thresholds for much lower ones is never

a permissible way to construe a statute. These fail-

ures by the panel require correction by this Court.

Il. EPA improperly failed to construe the CAA

in a manner that would avoid the absurdity

that resulted from its own interpretation.

Had the panel required EPA to construe the entire

CAA sensibly as a whole, it would have concluded

that EPA had several available avenues for avoiding

the absurdity that resulted from the agency’s pre-

ferred interpretation.

A. EPA incorrectly construed _ section

202(a)(1)’s requirement that an air pollu-

tant “reasonably be anticipated to endan-

ger public health or welfare.”

To make an endangerment finding, EPA was stat-

utorily required to find that an air pollutant may

“reasonably be anticipated to endanger public health

or welfare.” 42 U.S.C. § 7521(a)(1). The statutory

text, and its settled construction, do not allow EPA to

address any and all issues that may be thought of as

relating to “health” or “welfare” in the abstract. In-

stead, the Act cabins EPA's authority by using the

specific statutory terms “health” and “welfare” and

requiring a particular type of causal connection be-

tween air pollutants and endangerment.

Here, EPA departed from prior agency practice

and failed to find the requisite causal connection be-

tween GHG emissions, on the one hand, and an en-

dangerment of (a) public health or (b) public welfare,

on the other. The agency’s strained analysis — to-

gether with its concession that its overall construc-

tion of the Act produces an absurdity — makes clear

that the Act’s structure simply is not a good fit for

addressing harms caused by GHG emissions.

Nor does the Court’s decision in Massachusetts

compel a different result. Indeed, Massachusetts

could hardly have been clearer in directing that, on

remand, “EPA must ground its reasons for action or

inaction in the statute.” Massachusetts, 549 U.S. at

535 (emphasis added). By overlooking this Court’s

clear directive, and mistakenly reading Massachu-

setts to hold that the “EPA had a statutory obligation

to regulate harmful greenhouse gases,” App. 18a

(emphasis added, quotations marks omitted), the

panel left undisturbed EPA’s failure to articulate a

standard for establishing causal connections.

1. The statutory term “reasonably be anticipated

to endanger” requires EPA to establish an appropri-

ate causal connection between emissions of “air pollu-

tants” and “public health” or “public welfare,” as

those terms are used in the CAA.

Congress's use of the terms “endanger” and “antic-

ipate” ensure that EPA regulates only those types of

endangerment that fit within the Act’s structure by

requiring the agency to establish appropriate causal

connections between a pollutant and endangerment.

“Endanger” means to “expose to harm or danger” or

“to imperil.” American Heritage Dictionary of the

English Language (4th ed. 2000). “Anticipate” means

among other things to “realize beforehand,” to “fore-

see,” to “deal with beforehand.” Id. (definition of “an-

ticipate”). The term “reasonably be anticipated to

endanger” thus calls to mind the “foreseeability” tests

long used in a variety of contexts to determine legal

causation of cognizable harms. See Palsgraf v. Long

Island R.R., 162 N.E. 99 (N.Y. 1928). “It is a well es-

tablished principle of law, that in all cases of loss we

are to attribute it to the proximate cause, and not to

any remote cause: causa proxima non remota

spectatur.” Waters v. Merchants’ Louisville Ins. Co.,

36 U.S. (Pet. 11) 213, 222 (1837) (Story, J.); cf. CSX

Transp., Inc. v. McBride, 131 S. Ct. 2630, 2642 (2011)

(“To prevent ‘infinite liability,’ courts and legislatures

appropriately place limits on the chain of causation

that may support recovery on any particular claim.”);

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687, 712 (1995) (O’Connor, J.,

concurring).

Without these limitations, EPA could claim a

sweeping authority to regulate all “airborne com-

pounds of whatever stripe,” Massachusetts, 549 U.S.

at 529, that affect “well-being,” 42 U.S.C. § 7602(h),

thus assuming unto itself an almost limitless policy

discretion. An essential predicate to regulation under

the Act is, therefore, that EPA must reasonably fore-

see that a particular type of air pollution will harm or

imperil public health or welfare. The “statutory term

‘will endanger’ and the “relationship of that term to

other sections of the Clean Air Act” thus “limit” and

“direct” EPA’s authority. Ethyl Corp. v. EPA, 541

F.2d 1, 29 (D.C. Cir. 1976) (en banc).

Here, EPA failed to appreciate these limitations

on its authority. EPA found endangerment of public

health and welfare based, not on the harms involving

people’s exposures to pollutants, but on remote causal

connections of a type beyond the bounds of what Con-

gress intended for the agency to address. Had the

panel below scrutinized EPA’s analysis of legal cau-

sation — as opposed to concluding such scrutiny is

pretermitted by Massachusetts — it would have real-

ized that its analysis as to both public health and

public welfare was inadequate under the plain terms

of the statute and a poor fit with the overall structure

of the Act.

2. EPA’s finding of an endangerment of “public

health” was based on a misreading of the Act. The

CAA treats effects on “health” and “welfare” distinct-

ly. In addressing the effects of GHGs on public

“health,” EPA inappropriately included considera-

tions that, if they are relevant to an endangerment

finding at all, may be considered only as relating to

public “welfare.”

In the context of the CAA, references to protecting

or endangering “public health” have long been under-

stood to refer to health risks based on inhalational or

other exposures to a pollutant. See NRDC, Inc. v.

EPA, 902 F.2d 962, 973 (D.C. Cir. 1990) (holding that,

in promulgating NAAQS, the CAA “does not permit

EPA to consider” the health consequences of unem-

ployment), vacated in irrelevant part by NRDC, Inc.

v. EPA, 921 F.2d 326 (D.C. Cir. 1991). Consistent

with the structure of the Act, effects unrelated to ex-

posure to pollutants and occurring over a long time

horizon have never before been treated as “health”

effects.

EPA’s rulemaking proposal acknowledged that

“there is no evidence that greenhouse gases directly

cause health effects.” App. 322a (emphasis added).

But despite vigorous objections from commenters that

EPA could lawfully find endangerment of health only

for exposure-related effects of pollutants involving

inhalation, skin exposures, ingestion, and the like,

App. 322a-324a, EPA nonetheless found an endan-

germent of public health based, not on harms involv-

ing people’s exposure to pollutants, but on more re-

mote causal connections more appropriately consid-

ered under the Act’s “welfare effects” provisions.

App. 324a.

3. EPA’s finding of endangerment of public “wel-

fare” also misreads the Act.

As an initial matter, EPA never made clear that

endangerment to “welfare” — as opposed to public

“health” — was an independent and sufficient ground

for the Endangerment Finding. EPA’s erroneous in-

terpretation of the term “public health” therefore suf-

fices, standing alone, to require reversal of the rule-

making. See SEC v. Chenery Corp., 318 U.S. 80

(1943).

At any rate, EPA’s failure to identify the statutori-

ly required causal connection was, if anything, more

glaring with respect to endangerment of “welfare”

than endangerment of “health.” The CAA provides a

specific statutory method for categorizing “welfare

effects.” Against this backdrop, past findings of wel-

fare endangerment have focused on particularized

exposure-related welfare effects falling into one or

more of ten primary categories enumerated by stat-

ute; namely, effects on (i) soils, (ii) water, (iii) crops,

(iv) vegetation, (v) manmade materials, (vi) animals,

(vii) wildlife, (viii) weather, visibility, and climate,

(ix) damage to and deterioration of property, and

(x) hazards to transportation. See 42 U.S.C.

§ 7602(h). EPA’s analysis should have turned on ap-

plying this statutory scheme.

Rather than pursuing the inquiry framed by the

CAA, EPA chose to organize its endangerment analy-

sis for welfare around an invented six-part scheme

lacking a discernible relation to principles drawn

from the Act. EPA thus set aside the categories

enumerated by the Act in favor of making predictions

of how a multi-stage set of causes might produce im-

pacts in future decades on (i) “food production and

agriculture,” (ii) “forestry,” (iii) “water resources,”

(iv) “sea level rise and coastal areas,” (v) “energy, in-

frastructure and settlements,” and (vi) “ecosystems

and wildlife.” See generally App. 338a-366a.

EPA’s analysis under its chosen scheme for ana-

lyzing “welfare effects,” like its analysis of endanger-

ment of public health, did not rely on findings of ex-

posure-related harms. Indeed, EPA never contended

that harmful welfare effects attributable to exposures

to greenhouse gases were likely to occur in the near

term. Cf., e.g., App. 363a (addressing “near term”

impacts). Rather, EPA interpreted the Act as allow-

ing the agency to conclude that welfare endanger-

ment may reasonably be anticipated based on effects

both distant in time and causal proximity from the

relevant pollutant emissions.

EPA did not contend its finding of welfare endan-

germent could be justified exclusively based on direct

welfare effects involving “climate.” Compare App.

71a, 78a (panel opinion). And while EPA noted that

section 202(a)(1)’s enumeration of welfare effects con-

cludes by listing two extremely broad categories of

potential welfare effects after the dividing phrase “as

well as” — namely, “effects on economic values and

on personal comfort and well-being,” App. 247a — it

provided no “intelligible principle” for analysis of the-

se statutory terms that would allow for realistic as-

sessments of welfare effects rather than arbitrarily

truncated analysis. Whitman v. American Trucking

Associations, Inc., 531 U.S. 457 (2001). Indeed, EPA

failed to identify any discernible limits on its inter-

pretation of these statutory terms, let alone the “sub-

stantial guidance” that this Court deemed necessary

for EPA’s “setting air standards that affect the entire

national economy.” Jd. at 475 (emphasis added). And

it refused to be guided by Congress’ framing of the

welfare endangerment inquiry by discarding the

statute’s categorization of “welfare effects” in favor of

newly devise.’ categories of its own choosing. In do-

ing so, EPA discarded the “intelligible principle”

based on traditional exposure-related causation of

harms (relied on in Whitman), but failed to replace it

with any other intelligible principle drawn from the

statute.

For its part, the panel overlooked EPA’s failures

to articulate any intelligible standard, thinking there

was no interpretive work to do other than apply Mas-

sachusetts.

4. Finally, EPA erred by interpreting the Act as

compelling it to disregard the effect of compliance

with law already in place under related regulatory

programs.

Although the National Highway Traffic Safety

Administration had been directed by a 2007 congres-

sional enactment to issue fuel economy standards for

new motor vehicles providing major reductions in

GHG emissions, see Energy Independence and Secu-

rity Act, Pub. L. No. 110—140, 121 Stat. 1492 (Dec.

19, 2007), EPA’s rulemaking ignored the emissions

reductions that could be “reasonably anticipated” due

to the new statutory requirements. App. 257a. EPA

reasoned that, despite its obligation to assess what

“may reasonably be anticipated,” section 202(a)

somehow precluded it from considering the emissions

reductions reasonably to be expected from compliance

with the law. App. 272a-273a.

EPA’s refusal to consider reasonably anticipated

legal compliance behaviors violates the plain terms of

the Act. Any real-world welfare endangerment that

“may reasonably be anticipated” over decades to cen-

turies must necessarily account for behavior reasona-

bly expected to occur over those long timespans under

laws already in place. App. 272a-273a.

B. EPA incorrectly determined that any “air

pollutant” regulated pursuant to section

202(a) must also be regulated under the

PSD program.

EPA’s rulemaking was also infected by a second,

independent error. Relying on prior rulemakings,

EPA determined that this Court’s holding that GHGs

are included within the term “air pollutant” in the

Act’s overall definitional provision, see Massachu-

setts, 549 U.S. at 529, means a fortiorari that GHGs

must be deemed “air pollutants” under the CAA’s

Prevention of Significant Deterioration program, see

App. 62a.

EPA failed to recognize that the term “air pollu-

tant,” as used in the PSD program, could be given a

narrower interpretation to cover just the six NAAQS

pollutants — all of which cause exposure-related

health problems — rather than encompassing all air-

borne compounds deemed harmful and regulated by

EPA under any CAA program. As this Court recently

explained in interpreting the Clean Air Act, “the nat-

ural presumption that identical words used in differ-

ent parts of the same act are intended to have the

same meaning * * * is not rigid and readily yields

whenever there is such variation in the connection in

which the words are used as reasonably to warrant

the conclusion that they were employed in different

parts of the act with different intent.” Environmental

Defense v. Duke Energy Corp., 549 U.S. 561, 574

(2007) (quotation marks and ellipsis omitted).

Here, the terms “air pollutant” in the definitional

provision and PSD program clearly have distinct

meanings — as even EPA acknowledges. Although

Massachusetts said that “air pollutant” means “all

airborne compounds of whatever stripe” under section

202(a)(1), 549 U.S. at 529, EPA did not use that broad

definition for the term “air pollutant” in the PSD

statute, recognizing that it would be illogical to re-

quire preconstruction permits because of emissions of

any airborne compound, including airborne com-

pounds that have not been deemed harmful enough to

be regulated under the CAA. EPA itself has therefore

recognized that the Massachusetts definition of “air

pollutant” cannot control the definition of “air pollu-

tant” under the PSD statute. As Judge Kavanaugh

explained, “EPA cannot simultaneously latch on to

Massachusetts v. EPA and reject Massachusetts v.

EPA” in interpreting the term “air pollutant” in the

PSD context. App. 150a (dissenting opinion).

C. EPA incorrectly exercised its delegated

authority in regulating GHGs.

In Massachusetts, the Court recognized that EPA

could decline to make an endangerment finding for

GHGs “if it provides some reasonable explanation as

to why it cannot or will not exercise its discretion to

determine whether [GHGs endanger public health or

welfare].” 549 U.S. at 533. Accordingly, once it rec-

ognized the absurd consequences of squeezing GHGs

into the terms of the CAA, EPA was obliged to decline

to regulate GHGs if no saving construction of the Act

were available. It is “highly unlikely that Congress”

would have wanted concededly absurd, economy-wide

regulation of these air pollutants. MCI Telecommu-

nications Corp. v. AT&T Co., 512 U.S. 218, 231

(1994).

Indeed, if Brown & Williamson was an “extraordi-

nary case” requiring the agency to “hesitate before

concluding that Congress” intended an improbable

“implicit delegation” of authority to regulate, 529 U.S.

at 143, 159, this case is even more extraordinary and

requires even more hesitation. See App. 122a-123a

(Brown, J., dissenting). In Massachusetts, the Court

reasoned that construing “air pollutant” to include

GHGs “would lead to no [] extreme measures” as had

occurred in Brown & Williamson, because there was

“nothing counterintuitive to the notion that EPA can

curtail” harmful automotive GHG emissions as it had

long done under the CAA. 549 U.S. at 531. Now,

however, EPA’s admittedly absurd extension of GHG

emissions controls to hundreds of thousands of small,

non-industrial sources far outside anything contem-

plated by Congress undercuts this distinction.

a. * >

At all events, were there any doubts about EPA’s

interpretations of section 202(a)(1) or the relevant

PSD and Title V statutes, EPA was bound to inter-

pret one or all of them to avoid the absurdity that

would be produced by a contrary interpretation.

Massachusetts does not compel a different result, but

to the extent that the Court finds that it does, peti-

tioners respectfully submit that the Court should re-

visit some aspects of the decision.

III. This case presents recurring questions of

national importance.

EPA’s GHG rulemakings have enormous economic

consequences, and the agency’s interpretive method

poses profound questions under the Constitution’s

system of separation of powers.

1. There can be little doubt that “[t]his case is [ ]

one of exceptional importance” with “massive real-

world consequences.” App. 133a (Kavanaugh, J., dis-

senting), As even the members of the panel that up-

held the regulations recognized, “{t}he underlying pol-

icy questions and the outcome of this case are un-

doubtedly matters of exceptional importance.” App.

106a. Neither EPA nor any of its intervenors or ami-

ct has questioned the staggering practical conse-

quences of these rulemakings. Indeed, EPA avoided

performing a cost-benefit analysis of the stationary

source aspects of these rulemakings, perhaps hesitat-

ing to find out how staggering those consequences re-

ally are.

EPA’s rulemakings establish a regulatory appa-

ratus the likes, costs, and breadth of which have nev-

er before been seen, effectively establishing EPA as a

national zoning board with jurisdiction over the en-

tire economy — for the first time ever imposing the

CAA’s regulatory burdens so heavily and directly on

States, industry, farms, convenience stores, hospitals,

shopping malls, churches, even homes.

2. The rulemakings below pose profound ques-

tions under the Constitution’s separation of powers.

If uncorrected, EPA’s new understanding of the ab-

surdity canon as granting carte blanche for agency

amendments to clear statutory text will establish a

milestone in the relationship between the legislative

and executive branches. As Judge Kavanaugh ob-

served, “undue deference or abdication to an agency

carries its own systemic costs. If a court mistakenly

allows an agency’s transgression of statutory limits,

then we green-light a significant shift of power from

the Legislative Branch to the Executive Branch.”

App. 152a-153a (Kavanaugh, J., dissenting).

Whatever the magnitude of the threat to health or

welfare posed by climate change, the threat surely

does not justify an agency's wholesale rewriting of

statutory provisions. No matter how important an

agencys policy goals, the agency may not pursue

means and ends not encompassed within its congres-

sional delegation of authority — however fondly it

may wish to press the square peg of a preferred regu-

latory program into the nearest statutory round hole.

“Where a statute provides the conditions for the exer-

cise of governmental power, its requirements are the

result of a deliberative and reflective process engag-

ing both of the political branches.” Hamdan v.

Rumsfeld, 548 U.S. 557, 637 (2006) (separate opinion)

(emphasis added). As the Framers recognized, the

“failures of * * * regulation may be a pressing nation-

al problem, but a judiciary that licensed

extraconstitutional government with each issue of

comparable gravity would, in the long run, be far

worse.” Free Enterprise Fund v. Public Company Ac-

counting Oversight Board, 130 S. Ct. 3138, 3157

(2010) (quotation marks, alterations, and citations

omitted).

The willingness, perhaps eagerness, of unelected

EPA officials to construe statutory language in a

manner producing absurd results justifying agency-

crafted, statutory amendments conflicts with the de-

liberative governance our Framers envisioned. The

Court’s review is needed to determine the legitimacy

of EPA’s new understandings of its interpretive au-

thority.

CONCLUSION

The petition for a writ of certiorari should be

granted.

RACHEL L. BRAND

SHELDON GILBERT

National Chamber

Litigation Center, Inc.

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

MICHAEL C. GERAGHTY

Attorney General

STEVEN E. MULDER

State of Alaska

1031 W. 4th Avenue

Anchorage, AK 99501

(907) 269-5274

ELLEN STEEN

DANIELLE QUIST

American Farm Bureau

Federation

600 Maryland Ave., SW

Washington, DC 20024

(202) 406-3600

April 19, 2013

Respectfully submitted,

ROBERT R. GASAWAY

Counsel of Record

JEFFREY A. ROSEN, P.C.

JEFFREY BOSSERT CLARK

ADITYA BAMZAI

WILLIAM H. BURGESS

Kirkland & Ellis LLP

655 Fifteenth Street, N.W.

Washington, DC 20005

robert.gasaway@kirkland.com

(202) 879-5000

Counsel for Petitioner

Chamber of Commerce of the

United States of America

DOUGLAS A. HENDERSON

Troutman Sanders LLP

600 Peachtree Street, NE

Atlanta, GA 30308

(404) 885-3479

JESSE K. MARTIN

Troutman Sanders LLP

401 Ninth Street, N.W.

Washington, D.C. 20001

(202) 274-2950

Counsel for Petitioner American

Farm Bureau Federation

APPENDIX

RECORD

-1272

AND No. OFFICE OF THE CLERK |

RIEF Sin the Supreme Court of the Gnited States

FILED

1 Supreme Court, Us.

APR 19 2013

}

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA, STATE OF ALASKA, AND

AMERICAN FARM BUREAU FEDERATION,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITIONERS’ APPENDIX

VOLUME I OF V (1a-179a)

RACHEL L. BRAND

SHELDON GILBERT

National Chamber

Litigation Center, Inc.

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

MICHAEL C. GERAGHTY

Attorney General

STEVEN E. MULDER

State of Alaska

1031 W. 4th Avenue

Anchorage, AK 99501

(907) 269-5274

ROBERT R. GASAWAY

Counsel of Record

JEFFREY A. ROSEN, P.C.

JEFFREY BOSSERT CLARK

ADITYA BAMZAI

WILLIAM H. BURGESS

Kirkland & Ellis LLP

655 Fifteenth Street, N.W.

Washington, DC 20005

robert.gasaway@kirkland.com

(202) 879-5000

Counsel for Petitioner

Chamber of Commerce of the

United States of America

[Additional Counsel Listed on Signature Page of Petition]

(ERENT SA STRANI AR CL AE Beh ARIE ERRNO, ES, A SMAI TER AREA SE

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

Library of Conaress

Law Library

APPENDIX CONTENTS

VOLUME I

U.S. Court of Appeals for the D.C. Circuit

Panel opinion, 684 F.3d 102

eae la

Judgment

ES ee nr 95a

Order denying rehearing en banc

I I Tic eaicacinhiepemenninninioennnien 99a

Statement of Chief Judge Sentelle, and

Circuit Judges Rogers and Tatel,

concurring in denial of

rehearing en banc (Dec. 20, 2012)................... 103a

Statement of Circuit Judge Brown,

dissenting from denial of

rehearing en banc (Dec. 20, 2012)................... 107a

Statement of Circuit Judge Kavanaugh,

dissenting from denial of

rehearing en banc (Dec. 20, 2012)................... 133a

Order denying pane! rehearing

I, SI ica niniidbiincnpeinneabinnennnindiatiieneies 156a

Order re: briefing in “Endangerment Rule”

I ical 160a

Order re: briefing in “Tailpipe Rule” cases

I ssa plamininsiaien 164a

‘i

Order re: briefing in

“Timing Rule and Tailoring

Rule” cases (Mar. 21, 2011)......................00200

Order re: briefing in “Historic Regulations”

Order granting Motion for Coordination

of Related Cases (Dec. 10, 2010)....................

VOLUME I

Federal Register Notices

EPA, Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act;

Final Rule,

74 Fed. Reg. 66,496 (Dec 15, 2009)................

EPA, 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; Final Rule,

75 Fed. Reg. 49,556 (Aug. 13, 2010) ..............

EPA, Reconsideration of Interpretation of

Regulations That Determine Pollutants

Covered by Clean Air Act Permitting

Programs; Final Rule,

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

ili

VOLUME II

EPA, Prevention of Significant Deterioration

and Title V Greenhouse Gas Tailoring

Rule; Final Rule,

75 Fed. Reg. 31,514 (June 3, 2010)................

VOLUME IV

EPA, Regulating Greenhouse Gas Emissions

Under the Clean Air Act; Advance

Notice of Proposed Rulemaking,

73 Fed. Reg. 44,354 (July 30, 2008)..............

VOLUME V

EPA, Prevention of Significant Deterioration

and Title V Greenhouse Gas Tailoring

Rule; Proposed Rule,

74 Fed. Reg. 55,292 (Oct. 27, 2009) ..............

Statutes

is siicsisinsenicecinccciniicensitei

I ic sicsiensiaidsipmtepeiniiaian

ESSER ee

I I ocestececcctsecnenrnscciccnnvicsccensen

Pe eae

42 U.S.C. §§ 7521(a)(1)-(3)......c.ceccececeecececessececeees

GB UBL. © FERED cccceeveccccenvesssssssensesncseemnenesin

GB UO BBAS. © FID ccceccenccevccsssesvesssensssesemnnnenannnns

GB UES. © TED ecevecsceecsccsseesssenssveseremmamimantante

42 U.S.C. §§ 7607(d)(7)-(9) .................-ccececceseceees

GB DIB. & FIGS ccccccresesecccssessmnessesesensmnnmmnenita

Miscellaneous

Motion for Coordination of Related Cases

EF SS ee

Chamber of Commerce of the United States

of America’s Combined Petition for Panel

Rehearing or for Rehearing en banc

EF eer

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

Vv.

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 dJr., 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, I, 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 MIntervenors in support. of

respondents. With her on the briefs were Martha

Coakley, Attorney General, William L. Pardee,

Attorney Assistant General, Sean H. Donahue,

Howard I. Fox, David S. Baron, Megan Ceronsky,

Vickie L. Patton, Peter Zalzal, Kamala D. Harris,

Attorney General, Office of the Attorney General for

the State of California, Kathleen A. Kenealy, Senior

Assistant Attorney General, Marc N. Melnick and

Nicholas Stern, 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

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 IIT, Craig

Holt Segall, and Joanne Spalding.

Deborah Sivas, Douglas A. Ruley, Edward Lloyd,

and Susan J. Kraham were on the brief for amici

curtae America's Great Waters Coalition, et al. in

support of respondent. James K. Thornton entered an

appearance.

No. 10-1073

COALITION FOR RESPONSIBLE REGULATION, INC., ET

AL.,

PETITIONERS

Vv.

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

Abbott, Attorney General, Bill Cobb, deputy Attorney

General, J. Reed Clay, Jr., Special Assistant and

Senior Counsel to the Attorney General, Michael P.

Murphy and James P. Sullivan, Assistant Solicitors

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, Jr., Assistant Deputy Attorney General,

Marty dJackley, Attorney General, Office of the

Attorney General for the State of South Dakota,

Roxanne Giedd, Chief, and Kenneth T. Cuccinelli, II,

Attorney General, Office of the Attorney General for

the Commonwealth of Virginia. Mark W. DeLaquil,

Earle D. Getchell, Jr., Assistant Attorney General,

Office of the Attorney General for the Commonwealth

of Virginia, Andrew M. Grossman, David B. Rivkin,

Jr., and Robert D. Tambling, Assistant Attorney

General, Office of the Attorney General for the State

of Alabama, entered appearances.

F. William Brownell and Peter Keisler argued the

causes for Non-State Petitioners and Supporting

Intervenors. With them on the briefs were Norman

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

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

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

Day, John A. Bryeon, 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, I, Samuel B. Boxerman and Leslie

A. Hulse were on the brief for ~mici 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 Kim N. Smaczniak,

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

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

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 Illinois,

Gerald T. Karr, Assistant Attorney General, Joanne

Spalding, Nathan Matthews, Craig Holt Segall,

Kamala D. Harris, Attorney General, Office of the

Attorney General for the State of California, Kathleen

A. Kenealy, Senior Assistant Attorney General, Susan

Durbin, Raissa Lerner, Marc N. Melnick, and

Nicholas Stern, Deputy Attorneys General, Martha

Coakley, Attorney General, Office of the Attorney

General for the Commonwealth of Massachusetts,

William L. Pardee and Carol Iancu, Assistant

Attorneys General, David Doniger, Meleah Geertsma,

10a

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 Attorney

General for the State of New Hampshire, K. Allen

Brooks, Senior Assistant Attorney General, Barbara

Baird, William B.Wong, Peter F. Kilmartin, Attorney

General, Office of the Attorney General for the State

of Rhode Island, Gregory S. Schultz, Special Assistant

Attorney 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.

No. 10-1092

COALITION FOR RESPONSIBLE REGULATION, INC., ET

AL.,

PETITIONERS

Vv.

lla

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

LANGBOARD, INC. - MDF, ET AL.,

INTERVENORS

Consolidated with 10-1094, 10-1134, 10-1143, 10-1144,

10-1152, 10-1156, 10-1158, 10-1159, 10-1160, 10-1161,

10-1162, 10-1163, 10-1164, 10-1166, 10-1182

On Petitions for Review of Final Actions

of the Environmental Protection Agency

Peter Glaser argued the cause for petitioners.

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

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

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

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

Thompson, Sam Kazman, Hans Bader, Gordon R.

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

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

Steinberg, Levi McAllister, John J. McMackin 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,

12a

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, dJr., Assistant Deputy Attorney General,

Marty Jackley, Attorney General, Office of the

Attorney General for the State of North Dakota,

Roxanne Giedd, Chief, Civil Litigation Division, and

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

the 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.

13a

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, III, Attorney General, Office

of the Attorney General for the State of Delaware,

Valerie M. Satterfield, Deputy Attorney General,

Thomas J. Miller, Attorney General, Office of the

Attorney General for the State of Iowa, David R.

Sheridan, Assistant Attorney General, Douglas F.

Gansler, Attorney General, Office of the Attorney

General for the State of Maryland, Roberta R. James,

Assistant Attorney General, Lisa Madigan, Attorney

General, Office of the Attorney General for the State

of Illinois, Gerald T. Karr, Assistant Attorney

General, William T. Schneider, Attorney General,

Office of the Attorney General for the State of Maine,

Gerald D. Reid, Assistant Attorney General, Martha

Coakley, Attorney General, Office of the Attorney

14a

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. Schwariz,

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 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.

15a

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

eee

On Petitions for Review of a Final Action

of the Environmental Protection Agency

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

W. Coleman, William H. Lewis, dr., Ronald J.

Tenpas, Charles H. Knauss, Shannon S. Broome,

Bryan M. Killian, and Matthew G. Paulson were on

the briefs for petitioners. Peter D. Keisler, Leslie A.

Hulse, and Quentin Riegel entered appearances.

Amanda Shafer Berman and Perry M. Rosen,

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

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

Environmental Protection Agency, were on the brief

for respondents. Jon M. Lipshultz, Senior Counsel,

U.S. Department of Justice, entered and appearance.

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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 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

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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

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,

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increasingly severe weather events, and rising sea

levels.

The genesis of this litigation came in 2007, when

the Supreme Court held in Massachusetis 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. Jd. at

534.

Massachusetts v. EPA spurred a cascading series

of greenhouse gas-related rules and regulations.

First, in direct response to the Supreme Court's

directive, EPA issued an Endangerment Finding for

greenhouse gases. Endangerment and Cause or

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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 aan

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,”"(COze) 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 COze). After

compiling and considering a considerable body of

scientific evidence, EPA concluded that motor-vehicle

emissions of these six well-mixed gases “contribute to

the total greenhouse gas air pollution, and thus to the

climate change problem, which is _ reasonably

anticipated to endanger public health and welfare.”

Id. at 66,499.

Next, and pursuant to the CAA’s requirement that

EPA establish motor-vehicle emission standards for

“any air pollutant . . . which may reasonably be

anticipated to endanger public health or welfare,” 42

U.S.C. § 7521(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

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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.” Id. § 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. § 7602(j). 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

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

1980) (PSD program); Prevention of Significant

Deterioration and Title V Greenhouse Gas Tailoring

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

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

regulation and applicability). And once the Tailpipe

Rule set motor-vehicle emission standards for

greenhouse gases, they became a regulated pollutant

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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 MInterpretation 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 COze. Tailoring 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.” Id.

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

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emissions threshold, the Tailoring Rule provided that

only the largest sources—those exceeding 75,000 or

100,00 tpy COsze, depending on the program and

project ~«-ould 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 leve's 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 mumber 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

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

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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 disj.oses of several

arguments that have nothing to do with the rules

under review, and thus are not properly before us.

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

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

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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 iasue 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.

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, e.g., the benefits

of activities that require greenhouse gas emissions,

the effectiveness of emissions regulation triggered by

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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)

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

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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.” Id. at 533—34. In the Court’s view, EPA’s

policy based explanations contained “no reasoned

explanation for [EPA’s] refusal to decide” the key part

of the endangerment inquiry: “whether greenhouse

gases cause or contribute to climate change.” Id. at

534.

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

reasons not to regulate” simply has “nothing to do

with whether greenhouse gas emissions contribute to

climate change.” Id. at 533-34. The additional

exercises State and Industry Petitioners would have

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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 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.” Jd. at 535. The

statute speaks in terms of endangerment, not in

terms of policy, and EPA has complied with the

statute.

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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 V1.

However “absurd” Petitioners consider this

consequence, though, it is still irrelevant to the

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

geses. 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

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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

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

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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.”/d. 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 decisionmakers 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 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.

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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

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

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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

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

33a

higher over the last twenty-five years than during

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

For its third line of evidence that anthropogenic

emissions of greenhouse gases spurred the perceived

warming trend, EPA turned to computer-based

climate-model simulations. Scientists have used

global climate models built on basic principles of

physics and scientific knowledge about the climate to

try to simulate the recent climate change. These

models have only been able to replicate the observed

warming by including anthropogenic emissions of

greenhouse gases in the simulations. Endangerment

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

To recap, EPA had before it substantial record

evidence that anthropogenic emissions of greenhouse

gases “very likely” caused warming of the climate

over the last several decades. EPA further had

evidence of current and future effects of this warming

on public health and welfare. Relying again upon

substantial scientific evidence, EPA determined that

anthropogenically induced climate change threatens

both public health and public welfare. It found that

extreme weather events, changes in air quality,

increases in food- and water-borne pathogens, and

increases in temperatures are likely to have adverse

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

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

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of expected increase in sea level. Id. 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.” Id. at 25.

Congress did not restrict EPA to remedial

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

section mandates that EPA promulgate new 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

35a

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 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 thet.

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 »roceedings, we do not determine

the convincing force of evidence, nor the conclusion it

should support, but only whether the conclusion

36a

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, hcre 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.”

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-bycase, 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

37a

everity.” 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. Id. at 56. However, EPA abandoned that

approach because it failed to account for “the wide

variability of dietary lead intake” and lacked

predictive value. EPA substituted a “more

qualitative” approach, which relied on “predictions

based on uncertain data” along with clinical studies.

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 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

38a

precautionary thrust of the CAA and the multivariate

and sometimes uncertain nature of climate science,

not a sign of arbitrary or capricious decision-making.

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

pollutant” that are the subject of the Endangerment

Finding as an aggregate of six greenhouse gases,

which EPA called “well mixed greenhouse gases”:

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

(N2zO), hydrofluorocarbons (HFCs), perfluorocarbons

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

Petitioners argue that EPA’s decision to include PFCs

and SFe 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 SFs along with the

other four greenhouse gases does not injure any

motorvehicle-related petitioner. Nor has any non-

motor-vehicle related petitioner shown an injury-in-

fact resulting from EPA’s inclusion of these two gases

in the six-gas amalgam of “wellmixed 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 SFe. 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

39a

gases” that are the subject of the Endangerment

Finding. See Sierra Club u\EPA, 292 F.3d 895, 898-

900 (D.C. Cir. 2002) (requiring that a petitioner

seeking review of agency action demonstrate

standing by affidavit or other evidence if standing is

not “self-evident” from the administrative record).

Absent a petitioner with standing to challenge EPA’s

inclusion of PFCs and SF in the “air pollution” at

issue, this court lacks jurisdiction to address the

merits of Industry Petitioners’ contention.

EPA did not submit the Endangerment Finding

for review by its Science Advisory Board (SAB).

Industry Petitioners claim that EPA’s failure to do so

violates its mandate to “make available” to the SAB

“any proposed criteria document, standard,

limitation, or regulation under the Clean Air Act” at

the time it provides the same “to any other Federal

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

4365(c)(1); see Am. Petroleum Inst., 665 F.2d at 1188.

To begin with, it is not clear that EPA provided the

Endangerment Finding “to any other Federal agency

for formal review and comment,” which triggers this

duty to submit a regulation to the SAB. EPA only

submitted a draft of the Endangerment Finding to

the Office of Information and Regulatory Affairs

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.

40a

§ 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 emails 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

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

4la

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.

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.

42a

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

theregulation 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,

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. Id. at 49,576—7

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