Opposition Brief — Massachusetts v. EPA

No. 05-1120

Jn the Supreme Court of the Hnited States

COMMONWEALTH OF MASSACHUSETTS, et a/.

Petitioners,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

On Petition For A Writ of Certiorari To The United States

Court of Appeals For The District of Columbia Circuit

BRIEF IN OPPOSITION FOR THE RESPONDENT

STATES OF MICHIGAN, TEXAS, IDAHO, NORTH

DAKOTA, UTAH, SOUTH DAKOTA, ALASKA,

KANSAS, NEBRASKA, AND OHIO

Michael A. Cox

Attorney General

Thomas L. Casey.

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, MI 48909

Telephone: (517) 373-1124

: Alan F. Hoffman

Neil D. Gordon

Assistant Attorneys General

Attorneys for the State of

Michigan

(Additional Counsel Listed on Inside Cover)

FOR THE STATE OF

TEXAS

GREG ABBOTT

Attorney General

Barry R. McBee

First Asst. Attorney General

Edward D. Burbach

Deputy Attorney General for

Litigation

Karen W. Kornell

Assistant Attorney General

Chief, Nat. Resources Div.

George Thomas Bohl

Assistant Attorney General

P.O. Box 12548

Austin, TX 78711-2548

(512) 463-2012

FOR THE STATE OF

IDAHO

LAWRENCE G. WASDEN

Attorney General

Douglas Conde

Deputy Attorney General

1410 North Hilton

Boise, ID 83706

(208) 373-0494

FOR THE STATE OF

NORTH DAKOTA

WAYNE STENEHJEM

Attorney General

Lyle Witham

Assistant Attorney General

500 North 9" Street

Bismarck, ND 58501

(701) 328-3640

FOR THE STATE OF

UTAH

MARK L. SHURTLEFF

Attorney General

Fred G. Nelson

Assistant Attorney General

160 East 300" South, 5™ FI.

Post Office Box 140873

Salt Lake City, UT 84114

(801) 366-0285

FOR THE STATE OF

SOUTH DAKOTA

LAWRENCE E. LONG

Attorney General

1302 E. Highway 14

Suite 1

Pierre, SD 57501

(6US) 773-3215

FOR THE STATE OF

ALASKA

DAVID W. MARQUEZ

Attorney General

Steven E. Mulder

Assistant Attorney General

State of Alaska - Dept of Law

1031 W. 4” Ave., Suite 200

Anchorage, Alaska 99501

(907) 269-5100

FOR THE STATE OF

KANSAS

PHIL KLINE

Attorney General

David W. Davies

Deputy Attorney General

120 SW Tenth Avenue

Topeka, KS 66612-1597

(785) 296-2215

FOR THE STATE OF

NEBRASKA

JON C. BRUNING

Attorney General

David D. Cookson

Special Counsel to the

Attorney General

2115 State Capitol

Lincoln, NE 68509

(402) 471-1498

FOR THE STATE OF

OHIO

JIM PETRO

Attorney General

Teri Finfrock

Acting Senior Deputy

Attorney General

Environmental

Enforcement Section

30 E. Broad Street, 25" Fl.

Columbus, Ohio 43215

QUESTION PRESENTED

The State Respondents intervened below in support of the

United States Environmental Protection Agency ("EPA"). The

arguments the State Respondents presented to the Court of

Appeals were tailored to their interests and were intended only to

supplement EPA's arguments.

The issue the State Respondents addressed before the Court of

Appeals was whether EPA lacks the authority under the Clean Air

Act ("CAA" or "Act") to regulate the emission of carb n dioxide

and other greenhouse gases to address global climate change.

The question presented by the State Respondents to ‘his “‘ourt is

whether the Petition for a Writ of Certiorari should be deiued for

two independent reasons: (1) the Court of Appeals correctly

dismissed the petitions for review given the fact that EPA lacks

such authority, and (2) the Court of Appeals’ decision is not

binding, precedent.

fh

PARTIES TO THE PROCEEDING

Petitioners, who were petitioners in the United States Court of

Appeals for the District of Columbia Circuit, are the

Commonwealth of Massachusetts, the states of California,

Connecticut, Illinois, Maine, New Jersey, New Mexico, New

York, Oregon, Rhode Island, Vermont, and Washington, the

District of Columbia, American Samoa Government, New York

City, Mayor and City Council of Baltimore, Center for Biological

Diversity, Center for Food Safety, Conservation Law Foundation,

Environmental Advocates, Environmental Defense, Friends of the

Earth, Greenpeace, International Center for Technology

Assessment, National Environmental Trust, Natural Resources

Defense Council, Sierra Club, Union of Concerned Scientists, and

U.S. Public Interest Research Group.

Respondents are EPA (the respondent below); the Alliance of

Automobile Manufacturers; National Automobile Dealers

Association, Engine Manufacturers Association; Truck

Manufacturers Association; CO, Litigation Group; Utility Air

Regulatory Group; and the States of Michigan, Texas, Idaho,

North Dakota, Utah, South Dakota, Alaska, Kansas, Nebraska,

and Ohio (collectively, the "State Respondents”). All of the

Respondents other than EPA were intervenors below.

- iii -

TABLE OF CONTENTS

QUESTION PRESENTED ......cssssscssssssssssseesessssseesennees socal

PARTIES TO THE PROCEEDING ............ccccssessseseesceneeseeeeees il

TARE Ce PAF TRE ED eccceccisnssscivsesccncdinvtrevnscsnnesnehigaienn iV

Sy I TUTE OT cctiesitcciccbaciihechstivebetpincsinsehinigsidiiscunapcasaaladeaeil ]

IIT hniseutitnsisicsinsipitasiginsiidesiiscnatnsguinsiniiidbiaiaeaalien l

STATUTORY PROVISIONS INVOLVED............ccceseeeeeeees l

RA PEI vincosicsectessstnscniajtaiobiinllanaienietinesinsbitatpeaindanmediaiaieies ]

REASONS FOR DENYING THE PETITION...................00005+ 8

A. The Court of Appeals correctly dismissed the

petitions for review because the Act does not

authorize EPA to regulate greenhouse gas

emissions for purposes of global climate

CORED: sccrscenisscciniistseiiusialiiinibiavenniuninbintiabiesiaibitponaniilia 8

B. The judgment of the Court of Appeals does not

have any binding precedential effect. ................... 10

RO IES sccicecerereessinsiniedentipatinitiindaiannseiastianensiantipeaiinteiien 12

-iV-

TABLE OF AUTHORITIES

Page

Cases

Appalachian Power Co. v. EPA,

Se ee ee Mis Gate FI citccsntcncnncesetpenninncavensessetets 4

Engine Mfrs. Ass'n v. EPA,

SB PDS BBTS GAC, Cat. 1DBGD cncccccccccccccccccesccscsssscscesececceseee 4

Food and Drug Admin. v. Brown and

Williamson Tobacco Corp.,

ee I tinidelintiitbinienscatrarensnssrencsceatansunmnmunesscetteoaets i)

General Motors Corp. v. United States,

nn I iis rinciincrtrinsninenseminapnecendiscemessaqinocteeniens 2

Hertz v. Woodman,

SS A AE ET is cihciretnentennncccensesnmapsconsnnendsbintonenenenets 10

K-Mart Corp. v. Cartier, Inc.,

A MEE GI diceiccjninciscbnectintatsannteenntnenseseneenssccencensensatees a)

Massachusetts v. EPA,

rea i: IR AUTO entnctensesecesecetecncnstecsenseesoeesssces 7

Texas v. Brown,

Ene: TEI icischietisnihsdeidhaeitiemignennndnnetnecetnanercecsennsteanes 10

Train v. Natural Resources Defense Council,

Fe OTT ccsictintactbcictinipetenecesrenetatntoccbeceenvemsesnsensetaneens 2

United States v. Pink,

SEA IIIT CITT cnticdliciipseisdnmangaunnpntantncnabssunneeseqeetenionees 1]

Virginia v. EPA,

ae Ge Glee Ct - C D ccccccvessvcnstonssessctvecerecszecosensn 3

Whitman v. American Trucking Ass'n, Inc.,

531 U.S. 457 (2001)

Statutes

I i calenebibiiel 1

a 3

a oS ST Oe Ee 2

REIN TG BP AE Ree STAN OY FOND 3

te acer SP ARR et 1

EEE TS LIS ik ATE cP 3

is Oe .sincsctstesahdaensenvncstnninomnsiet 1,3

RS hiss icksisiidhcecsemeicheusdlicoitiibeieisdaandios 1,3

ESS a a SR 3

ne ic I. cconamntundinipasanniesn 4

SE ME assis ncocntiniesalbsdiabsbahschdelibttctibbimnicdeinctiphctaddea’ 3

8 EEE TUR iol serene RO eee SCE 3

I anaes 4,9

I a I ireectteetrnenes A a TE, RR 3

tS ESTAR RNS PSS Se en roe 3

42 U.S.C. § 7511(a).....eccecesseseeeees schaieledelin ich niselintidiuaniicel cities 4

42 U.S.C. § 751 1a(c)(3) and (4)......c.ccecscsessesees PELE SP 4

AEE ae cs a Pee gee oe l

ESET LD ACCT ON 1,5

gS STE ane aeanemn ts Seco oe ose 4

Nn I nis siceeenenieaieiatdilendbidiai 4,9

I I sia cacatatlainseichatie |

I ae l

Regulations

68 Fed. Reg. 52,922-33 (Sept. 8, 2003) ..........ccccssceseeeeees passim

~

OPINIONS BELOW

The decision of the Court of Appeals is reported at 415 F.3d

50 (D.C. Cir. 2005) and is reproduced in the Petitioners’

Appendix (Pet. App. 1-58). The Court of Appeals’ order denying

Petitioners’ petition for rehearing en banc is reported at 433 F.3d

66 (D.C. Cir. 2005) and is reproduced in the Petitioners’

Appendix (Pet. App. 94-97).

JURISDICTION

The judgment of the Court of Appeals was entered on August

15, 2005. The Court of Appeals’ order denying the petition for

rehearing en banc was entered on December 2, 2005. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

- STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in the case are Sections

108(a). 109(a) and (b), 110(a), and 202(a)(1) of the Act.' The

pertinent statutory text is set out in the State Respondents’

Appendix (State Resp. App. 1b — 14b).

STATEMENT

Petitioners challenge the denial by EPA of a petition for

rulemaking that sought the regulation of emissions of carbon

dioxide ("CO") and other greenhouse gases from new motor

vehicles and engines under Section 202 of the CAA, 42 U.S.C. §

7521.

EPA's denial of the petition was based on the agency's

position that the CAA "does not authorize EPA to regulate for

global climate change purposes{.]"’ EPA therefore determined

' 42 U.S.C. §§ 7408(a), 7409(a) and (b), 7410(a), 7521(a)(1).

> 68 Fed. Reg. 52,922; 52,925 (Sept. 8, 2003).

2.

that CO) and other greenhouse gases cannot be considered “air

pollutants" subject to the CAA's regulatory provisions for any

contribution they may make to global climate change.’ EPA also

concluded that even if it did have such authority, it would not

exercise it at this time because of uncertainties about the causes

and effects of climate change and additional policy

considerations.*

Petitioners filed petitions for review in the U.S. Court of

Appeals for the District of Columbia Circuit challenging EPA's

denial of their petition for rulemaking. The three-member panel

issued three separate opinions. Two of the opinions (the lead

opinion by Judge Randolph and an opinion concurring in the

judgment by Judge Sentelle) concluded that the petitions for

review should be denied, but for different reasons. Importantly,

none of the opinions commanded a majority of the panel

members. The panel's decision therefore has no binding

precedential effect.

1. Statutory Framework

The Act, 42 U.S.C. §§ 7401-7671q, establishes “a

comprehensive national program that ma[kes] the States and the

Federal Government partners in the struggle against air

pollution."° Under the Act, EPA establishes national ambient air

quality standards ("NAAQS") for certain air pollutants, and states

must then develop state implementation plans to implement,

maintain and enforce the NAAQS.°

More specifically, Section 108(a) directs EPA to create a list

of air pollutants that "in the Administrator's judgment, cause or

3 Id

* Id., at 52,929-33.

> General Motors Corp. v. United States, 496 U.S. 530, 532 (1990).

° Train v. Natural Resources Defense Council, 421 U.S. 60, 64-65 (1975).

a

contribute to air pollution which may reasonably be anticipated to

endanger public health or welfare[.]"’ Section 109 of the Act

directs EPA to promulgate NAAQS to protect against adverse

health and welfare effects for each pollutant identified under

Section 108.*

States have "primary responsibility" for assuring that air

quality within their borders meets the national standards.” States

satisfy this burden by submitting to EPA state implementation

plans ("SIPs") that provide for the attainment of the NAAQS."°

SIPs must include enforceable emissions limitations for air

pollution sources within a state and other control measures that

are "necessary or appropriate" to meet the NAAQS, as well as a

program for enforcing such measures. ''

Taken together, Sections 109 and 110 are the cornerstone for

much of the Act. As this Court has observed, EPA's setting of the

NAAQS under Section 109(b) is "the engine that drives nearly all

of Title I of the CAA[.]""? Similarly, the states’ development of

SIPs under Section 110 is "one of the key provisions of the

Act."

” 42 U.S.C. § 7408(a)(1).

* 42 U.S.C. § 7409(a) and-(b).

9 42 U.S.C. § 7407(a).

'? 42 U S.C. § 7410(a).

'' 42 US.C. § 7410(a)(2)(A).

'2 Whitman v. American Trucking Ass'n, Inc., 531 U.S. 457, 468 (2001). Title

I of the Act, 42 U.S.C. §§ 7401-7515, includes provisions regarding standards

of performance for new stationary sources, regulation of hazardous air

pollutants, preventing the significant deterioration of air quality in attainment

areas, and improving air quality in nonattainment areas. 42 U.S.C. §§ 7411,

7412, 7470-92, 7501-15.

' Virginia v. EPA, 108 F.3d 1397, 1406 (D.C. Cir. 1997).

a >

The states achieve the NAAQS "chiefly by regulating

Stationary sources, such as factories and power plants" through

their SIPs.'* In contrast to the states control over stationary

sources, regulation of motor vehicle emissions is primarily a

federal responsibility. Only the United States and California can

establish emission standards for new motor vehicles and new

motor vehicle engines. '°

Although much air pollution is a local or regional problem,

some pollution that results in the nonattainment of a NAAQS "is

caused or augmented by emissions" from sources beyond a state's

borders."° The CAA contains certain provisions to address

emissions from ‘upwind' states that pollute 'downwind' states.

For example, Section 110 requires a state's SIP to contain

provisions to prohibit emissions within the state which

"contribute significantly" to another state's nonattainment of a

NAAQS.'’ Under Section 126, a downwind state can petition

EPA to regulate upwind sources of air pollution that contribute

significantly to a downwind state's nonattainment.'* In addition,

a State can sue an upwind source directly when the source is

contributing to the downwind state's nonattainment of a NAAQS

due to, among other things, the violation of an emission

limitation."

'S Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1078-79 (D.C. Cir. 1996).

'S 42 USC. $§ 7511(a), 7543(a) and (b); see Engine Mfrs., 88 F.3d at 1079-

80. The Act requires the states to implement, among other things, clean-fuel

vehicles programs and motor vehicle inspection and maintenance programs in

areas that have not attained the NAAQS. See 42 U.S.C. §§ 751 la(c)(3) and

(4)(requiring such programs in “serious” nonattainment areas). The "thrust of

state compliance efforts” is, however, reducing emissions from stationary

sources. Engine Mfrs., 88 F.3d at 1080.

'© Appalachian Power Co. v. EPA, 249 F.3d 1032, 1037 (D.C. Cir. 2001).

'” 42 U.S.C. § 7410(a)(2D)\iX().

'8 42 US.C. § 7426(b).

'9 42 US.C. § 7604a).

The Act, however, does not contain any provision for states to

reduce air pollution from sources outside of the United States.

Therefore, if international sources of air pollution are contributing

to a state's inability to meet a NAAQS, the states have no

authority under the Act to limit emissions from such sources.

2. Proceedings before EPA

On October 20, 1999, Petitioner International Center for

Technology Assessment and 18 other organizations filed a

petition for rulemaking (the "ICTA Petition") asking EPA to

regulate certain greenhouse gas emission for new motor vehicles

and engines under Section 202(a)(1) of the CAA, 42 U.S.C. §

7521(a)(1). In particular, the petition sought the regulation of

CO,, methane, nitrous oxide and hydroflourocarbon emissions

from new motor vehicles and engines.

Section 202(a)(1) of the Act states that EPA shall prescribe

standards for emissions of air poliutants from new motor vehicles

and engines that "in his judgment cause, or contribute to air

pollution which may reasonably be anticipated to endanger public

health or welfare."*’ Petitioners claim that CO, and other

greenhouse gases are air pollutants that contribute significantly to

global climate change.”'

On September 8, 2003, EPA denied the ICTA Petition. EPA

concluded that the CAA "does not authorize EPA to regulate for

global climate change purposes(.]"** The agency therefore

determined that CO, and other greenhouse gases cannot be

considered “air pollutants" subject to the Act's regulatory

20 42 U.S.C. § 7521(a)(1).

7! 68 Fed. Reg. at 52,923.

*2 Id., at $2,925.

wl

provisions, including Sections 108 and 109, for any contribution

they may make to global climate change.”’

In reaching its conclusion, EPA analyzed the text and history

of the CAA as well other congressional actions specifically

addressing global climate change. EPA emphasized that "the

NAAQS system — a key CAA regulatory mechanism —.. . . is

fundamentally inadequate when it comes to a substance like CO),

which is emitted globally and has relatively homogenous

concentrations around the world."** EPA explained that "any

CO, standard that might be established would in effect be a

worldwide ambient air quality standard, not a national standard —

the entire world would be either in compliance or out of

compliance."** This situation "is inconsistent with a basic

underlying premise of the CAA regime for implementation of a

NAAQS - that actions taken by individual states and by EPA can

generally bring all areas of the U.S. into attainment of a

NAAQS." The inadequacy of one of the Act's central

regulatory provisions (the NAAQS system) to address global

climate change reinforced EPA's conclusion that the CAA as a

whole, including section 202, did not authorize the agency to

regulate for global climate change purposes.

3. Proceedings before the U.S. Court of Appeals for the

District of Columbia Circuit

The Court of Appeals dismissed the petitions for review. It

did not, however, address the question of whether EPA has the

authority under the Act to regulate greenhouse gas emissions to

- address global climate change. Instead, Judge Randolph, who

authored the lead opinion and whose views were not shared by

23 Id., at 52,925; 52.928.

24 14. at 52,927.

~ -

any of the other panel members, assumed arguendo that EPA had

such authority. Massachusetts v. EPA, 415 F.3d 50, 56 (D.C. Cir.

2005). He determined that the agency correctly exercised its

discretion in concluding that regulation of greenhouse gas

emissions from motor vehicles was not warranted. According to

Judge Randolph, the agency's judgment was properly based on,

among other things, the "scientific uncertainty about the causal

effects of greenhouse gases on the future climate of the earth" and

policy considerations that supported EPA's judgment not to

regulate at this time. /d., at 58.

Judge Sentelle concurred in the judgment dismissing the

petitions for review. He concluded that Petitioners lacked

standing because their "claimed injury is common to all members

of the public" and is "the sort of general harm” that is insufficient

to present a justiciable controversy under Articie III of the

Constitution. /d., at 60. Judge Sentelle did not address the

questions of whether EPA has the authority to regulate

greenhouse gas emissions or whether EPA properly exercised its

discretion in deciding not to regulate.

Judge Tatel dissented. He concluded that at least one

Petitioner had standing, that EPA had the authority to regulate

greenhouse gas emissions under Section 202 of the Act, and that

EPA had not adequately explained its refusal to regulate at this

time.

The panel denied a petition for hearing. On December 2,

2005, the panel denied a petition for rehearing en banc. (Pet.

App. 94-97).

-8-

REASONS FOR DENYING THE PETITION

The judgment of the Court of Appeals is correct, and does not

present an important federal question because it has no binding

precedential effect.

A. The Court of Appéals correctly dismissed the petitions for

review because the Act does not authorize EPA to regulate

greenhouse gas emissions for purposes of global climate

change.

EPA's determination that the CAA does not provide the

agency with the authority to regulate greenhouse gases to address

global climate change was based, in part, upon the text and

structure of the Act as a whole. Among the Act's provisions that

EPA analyzed was "a key CAA regulatory mechanism" — the

NAAQS system.”’

A large percentage of worldwide CO, emissions comes from

outside of the United | States.”* Concentrations of CO> in the

atmosphere are relatively homogenous throughout the world. A

NAAQS for CO, therefore "could not be attained by any area of

the U.S. until such a standard were attained by the entire world as

a result of emissions controls implemented in countries around

the world."”°

Nothing in the Act, however, gives states the authority to

control CO, emissions from sources outside of the United States.

States can limit emissions from sources within their borders

*7 68 Fed. Reg. at 52,927. Although it is instructive to analyze the NAAQS

system and Section 108, the State Respondents note that Petitioners seek

regulation of greenhouse gas emissions only from new motor vehicles and

engines under Section 202. Indeed, the factors to be considered in determining

whether EPA has the authority to regulate greenhouse gases under Section 202

are not the same as those under Section 108.

28 Id. at 52,925-29.

ad

nS

through their SIPs. They can also petition EPA under section 126

to address air pollution sources in upwind states that contribute

significantly to their nonattainment of a NAAQS, and they can

use the citizen suit provision in the Act to sue such sources

directly.” The Act, however, does not authorize states to limit air

pollution from sources outside of the country.

Given the global nature of CO, emissions, its homogenous

concentrations around the world, and the lack of authority for

States to limit international sources of emissions, it would be

impossible for states to attain a NAAQS for CO, by merely

reducing emissions within their borders. As EPA noted, "the

NAAQS system is fundamentally inadequate when it comes to a

substance like CO, which is emitted globally and has relatively

homogenous concentrations around the world."*’ An air quality

standard for CO would place states in the unworkable situation

of having to attain that standard, but lacking the means to achieve

it. Such an implausible and futile scenario establishes that

Congress did not intend the NAAQS system to authorize

regulation of CO, to address global climate change.”

Moreover, the failure of the NAAQS system— a regulatory

provision central to the Act — to address global climate change

demonstrates that the whole Act, including Section 202(a)(1),

does not authorize regulation for global climate change purposes.

Any suggestion that the Act authorizes regulation of greenhouse

gases under Section 202(a)(1) but not under the NAAQS system

ignores the principal that statutory interpretation requires an

examination of not just a single sentence, but "the language and

design of the statute as a whole."”® It also ignores the fact that the

30 42 US.C. §§ 7426(b), 7604(a).

3! 68 Fed. Reg. at 52,927.

»2 See Food and Drug Admin. v. Brown and Williamson Tobacco Corp., 529

U.S. 120, 141 (2000) (rejecting statutory interpretation that would result in an

implausible regulatory scheme).

33 & Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

+ -

NAAQS system is "the engine that drives nearly all of Title I of

the CAA[,]". which contains the majority of the statute's

provisions.’ The impossibility of states achieving a NAAQS for

CO, demonstrates that the entire Act, including Section 202, does

not authorize regulation of greenhouse gases for purposes of

global climate change. The Court of Appeals therefore correctly

dismissed the petitions for review.

B. The judgment of the Court of Appeals does not have any

binding precedential effect.

Among Petitioners’ arguments for a writ of certiorari is that

the D.C. Circuit departed from this Court's precedents on

Statutory interpretation. Petitioners further assert that the alleged

error is compounded by the fact that the D.C. Circuit is the

"premier intermediate court for adjudicating issues of agency

power and statutory interpretation." Petition for Writ of

Certiorani, at 4.

Petitioners, however, fail to acknowledge that the judgment of

the Court of Appeals has no binding precedential effect as to

principles of statutory interpretation. Judge Randolph's lead

opinion was his alone. Judge Sentelle concurred in the judgment

but never addressed the issue of statutory interpretation. Instead,

he determined that the petitions for review should be dismissed

because none of the Petitioners demonstrated they have standing.

Judge Tatel, writing in dissent, disagreed with both Judges

Randolph and Sentelle.

The judgment of the Court of Appeals therefore is not

binding precedent because none of the opinions commanded a

majority of the panel.** Any purported error in the lead opinion

34 Whitman, 531 US. at 468.

*S See Texas v. Brown, 460 U.S. 730, 737 (1983)(plurality view that does not

command majority is not binding precedent); Hertz v. Woodman, 218 US.

205, 213-14 (1910)("[T he principles of law involved not having been agreed

upon by a majority of the court sitting prevents the case from becoming an

authority for the determination of other cases{.]}").

o Bh «

concerning statutory interpretation is not an "authoritative

determination" for subsequent cases before the D.C. Circuit or

other courts.*° Moreover, the D.C. Circuit correctly dismissed the

petitions for review because, as discussed previously, the Act

does not authorize the regulation of greenhouse gases for the

purpose of addressing global climate change.

*© United States v. Pink, 315 U.S. 203, 216 (1942)("While it was conclusive

and binding upon the parties as respect that controversy, the lack of an

agreement by a majority of the Court on the principles of law involved

prevents it from being an authoritative determination for other cases." (citation

omitted).

42.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Dated: April, 2006

Respectfully submitted,

Michael A. Cox

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Kecord

P.O. Box 30212

Lansing, MI 48909

Telephone: (517) 373-1124

Alan F. Hoffman

Neil D. Gordon

Assistant Attorneys General

Attorneys for the State of

Michigan

APPENDIX

APPENDIX TABLE OF CONTENTS

42 U.S.C. § 7408. Air quality criteria

SE EE CE ecectneenceneierinneneneemmenen lb

42 U.S.C. § 7409. National primary and

secondary ambient air quality standards...................000+ 3b

42 U.S.C. § 7410. State implementation

plans for national primary and secondary

ambient air quality standards.................:cssssesseeseeeseesees 5b

42 U.S.C. § 7521. Emission standards

for new motor vehicles or new motor

Ib

42 U.S.C. § 7408. Air quality criteria and control

techniques

(a) Air pollutant list; publication and revision by

Administrator; issuance of air quality criteria for air

pollutants

(1) For the purpose of establishing national primary and

secondary ambient air quality standards, the Administrator

shall within 30 days after the date of enactment of the

Clean Air Amendments of 1970 [enacted Dec. 31, 1970]

publish, and shall from time to time thereafter revise, a list

which includes each air pollutant—

(A) emissions of which, in his judgment, cause or

contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare;

(B) the presence of which in the ambient air results

from numerous or diverse mobile or stationary sources;

and

(C) for which air quality criteria had not been issued

before the date of enactment of the Clean Air

Amendments of 1970 [enacted Dec. 31, 1970], but for

which he plans to issue air quality criteria under this

section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included such

pollutant in a list under paragraph (1). Air quality criteria

for an air pollutant shall accurately reflect the latest

scientific knowledge useful in indicating the kind and

extent of all identifiable effects on public health or welfare

which may be expected from the presence of such pollutant

in the ambient air, in varying quantities. The criteria for an

air pollutant, to the extent practicable, shall include

information on—

2b

(A) those variable factors (including atmospheric

conditions) which of themselves or in combination with

other factors may alter the effects on public health or

welfare of such air pollutant;

(B) the types of air pollutants which, when present

in the atmosphere, may interact with such pollutant to

produce an adverse effect on public health or welfare;

and °

(C) any known or anticipated adverse effects on

welfare.

3b

42 U.S.C. § 7409. National primary and secondary ambient

air quality standards

(a) Promulgation

(1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970 [enacted Dec. 31,

1970], shall publish proposed regulations prescribing a

national primary ambient air quality standard and a

national secondary ambient air quality standard for each

air pollutant for which air quality criteria have been

issued prior to such date of enactment; and

(B) after a reasonable time for interested persons to

submit written comments thereon (but no later than 90

days after the initial publication of such proposed

standards) shall be regulation promulgate such

proposed national primary and secondary ambient air

quality standards with such modifications as he deems

appropriate.

(2) With respect to any air pollutant for which air a

quality criteria are issued after the date of enactment of the

Clean Air Amendments of 1970 [enacted Dec. 31, 1970],

the Administrator shall publish, simultaneously with the

issuance of such criteria and information, proposed national

prirnary and secondary ambient air quality standards for

any such pollutant. The procedure provided for in

paragraph (1)(B) of this subsection shall apply to the

promulgation of such standards.

(b) Protection of public health and welfare

(1) National primary ambient air quality standards,

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

4b

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to

protect the public health. Such primary standards may be

revised inthe same manner as promulgated.

(2) Any national secondary ambient air quality standard

prescribed under subsection (a) shall specify a level of air

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary

standards may be revised in the same manner as

promulgated.

5b

42 U.S.C. § 7410. State implementation plans for national

primary and secondary ambient air quality standards

(a) Adoption of plan by State; submission to

Administrator; content of plan; revision; new sources;

indirect source review program; supplemental or

intermittent control systems

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within 3

years (or such shorter period as the Administrator may

prescribe) after the promulgation of a national primary

ambient air quality standard (or any revision thereof) under

section 109 [42 USCS § 7409] for any air pollutant, a plan

which provides for implementation, maintenance, and

enforcement of such primary siandard in each air quality

control region (or portion thereof) within such State. In

addition, such State shall adopt and submit to the

Administrator (either as a part of a plan submitted under the

preceding sentence or separately) within 3 years (or such

shorter period as the Administrator may prescribe) after the

promulgation of a national ambient air quality secondary

standard (or revision thereof), a plan which provides for

implementation, maintenance, and enforcement of such

secondary standard in each air quality control region (or

portion thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

(2) Each implementation plan submitted by a State

under this Act shall be adopted by the State after reasonable

notice and public hearing. Each such plan shall—

(A) include enforceable emission limitations and

other control measures, means, or techniques (including

economic incentives such as fees, marketable permits,

and auctions of emissions rights), as well as schedules

6b

and timetables for compliance, as may be necessary or

appropriate to meet the applicable requirements of this

Act;

(B) provide for establishment and operation of

appropriate devices, methods, systems, and procedures

necessary to—

(i) monitor, compile, and analyze data on

ambient air quality, and

(ii) upon request, make such data available to

the Administrator;

(C) include a program to provide for the

enforcement of the measures described in subparagraph

(A), and regulation of the modification and construction

of any stationary source within the areas covered by the

plan as necessary to assure that national ambient air

quality standards are achieved, including a permit

program as required in parts C and D [42 USCS §§

8470 et seq., 7502 et seq. ];

(D) contain adequate provisions—

(i) prohibiting, consistent with the provisions of

this title, any source or other type of emissions

activity within the State from emitting any air

pollutant in amounts which will—

(1) contribute significantly to nonattainment

in, or interfere with maintenance by, any other

State with respect to any such national primary

or secondary ambient air quality standard, or

(II) interfere with measures required to be

included in the applicable implementation plan

for any other State under part C [42 USCS §§

7b

7470 et seq.] to prevent significant deterioration

of air quality or to protect visibility,

(ii) insuring compliance with the applicable

requirements of sections 126 and 115 [42 USCS §§

7426, 7415] (relating to interstate and international

pollution abatement);

(E) provide (i) necessary assurances that the State

(or. except where the Administrator deems

inappropriate, the general purpose local government or

governments, or a regional agency designated by the

State or general purpose local governments for such

purpose) will have adequate personnel, funding, and

authority under State (and, as appropriate, local) law to

carry out such implementation plan (and is not

prohibited by any provision of Federal or State law

from carrying out such implementation plan or portion

thereof), (11) requirements that the State comply with

the requirements respecting State boards under section

128 [42 USCS § 7428], and (iii) necessary assurances

that, where the State has relied on a local or regional

government, agency, or instrumentality for the

implementation of any plan provision, the State has

responsibility for ensuring adequate implementation of

such plan provision;

(F) require, as may be prescribed by the

Administrator—

(i) the installation, maintenance, and

replacement of equipment, and the implementation

of other necessary steps, by owners or operators of

Stationary sources to monitor emissions from such

sources,

8b

(ii) periodic reports on the nature and amounts

of emissions and emissions-related data from such

sources, and

(iii) correlation of such reports by the State

agency with any emission limitations or standards

established pursuant to this Act, which reports shall

be available at reasonable times for public

inspection;

(G) provide for authority comparable to that in

section 303 [42 USCS § 7603] and adequate

contingency plans to implement such authority;

__ (H) provide for revision of such plan—

(i) from time to time as may be necessary to

take account of revisions of such national primary

or secondary ambient air quality standard or the

availability of improved or more expeditious

methods of attaining such standard, and

(ii) except as provided in paragraph (3)(C),

whenever the Administrator finds on the basis of

information available to the Administrator that the

plan is substantially inadequate to attain the national

ambient air quality standard which it implements or

to otherwise comply with any additional

requirements established under this Act;

(1) in the case of a plan or plan revision for an area

designated as a nonattainment area, meet the applicable

requirements of part D [42 USCS §§ 7502 et seq.]

(relating to nonattainment areas);

(J) meet the applicable requirements of section 121

[42 USCS § 7421] (relating to consultation), section

127 [42 USCS § 7427] (relating to public notification),

iba ae

9b

and part C [42 USCS §§ 7470 et seq.] (relating to

prevention of significant deterioration of air quality and

visibility protection);

(K) provide for—

(i) the performance of such air quality modeling

as the Administrator may prescribe for the purpose

of predicting the effect on ambient air quality of any

emissions of any air pollutant for which the

Administrator has established a national ambient air

quality standard, and

(ii) the submission, upon request, of data related

to such air quality modeling to the Administrator;

(L) require the owner or-operator of each major

stationary source to pay to the permitting authority, as a

condition of any permit required under this Act, a fee

sufficient to cover—

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit for

such source, the reasonable costs of implementing

and enforcing the terms and conditions of any such

_ permit (not including any court costs or other costs

associated with any enforcement action), until such

fee requirement is superseded with-respect to such

sources by the Administrator's approval Of a fee

program under title V [42 USCS §§ 7661 et seq);

and

(M) provide for consultation and participation by

local political subdivisions affected by the plan.

(3) (A) [Repealed]

10b

(B) As soon as practicable, the Administrator shall,

consistent with the purposes of this Act and the Energy

Supply and Environmental Coordination Act of 1974,

review each State's applicable implementation plans

and report to the State on whether such plans can be

revised in relation to fuel burning stationary sources (or

persons supplying fuel to such sources) without

interfering with the attainment and maintenance of any

national ambient air quality standard within the period

permitted in this section. If the Administrator

determines ‘aat any such plan can be revised, he shall _

- notify the State that a plan revision may be submitted

by the State. Any plan revision which is submitted by

the State shall, after public notice and opportunity for

public hearing, be approved by the Administrator if the

revision relates only to fuel burning stationary sources —

(or persons supplying fuel to such sources), and the

plan as revised complies with paragraph (2) of this

subsection. The Administrator shall approve or

disapprove any revision no later than three months after

its submission.

(C) Neither the State, in the case of a plan (or

portion thereof) approved under this subsection, nor the

Administrator, in the case of a plan (or portion thereof)

promulgated under subsection (c), shall be required to

revise an applicable implementation plan because one

or more exemptions under section 118 [42 USCS §

7418] (relating to Federal facilities), enforcement

orders under section | 13(d), suspensions under section

110(f) or (g) [subsecs. (f) or (g) of this section] (relating

to temporary energy or economic authority), orders

under section 119 [42 USCS § 7419}(relating to

primary nonferrous smelters), or extensions of

compliance in decrees entered under section | 13(e)

(relating to iron- and steel-producing operations) have ~

been granted, if such plan would have met the

llb

requirements of this section if no such exemptions,

orders, or extensions had been granted.

(4) [Repealed]

(S) (A) (1) Any State may include in a State

implementation plan, but the Administrator may not

require as a condition of approval of such plan

under this section, any indirect source review

program. The Administrator may approve and

enforce, as part of an applicable implementation

plan, an indirect source review program which the

State chooses to adopt and submit as part of its plan.

(ii) Except as provided in subparagraph (B), no

plan promulgated by the Administrator shall include

any indirect source review program for any air

quality control region, or portion thereof.

(iii) Any State may revise an applicable

implementation plan approved under section | 1 0(a)

{42 USCS § 7410(a)] to suspend or revoke any such

program included in such plan, provided that such

plan meets the requirements of this section.

(B) The Administrator shall have the authority to

promulgate, implement and enforce regulations under

section 110(c) [42 USCS § 7410(c)] respecting indirect

source review programs which apply only to federally

assisted highways, airports, and other major federally

assisted indirect sources and federally owned or

operated indirect sources.

(C) For purposes of this paragraph, the term

“indirect source" means a facility, building, structure,

installation, real property, road, or highway which

attracts, or may attract, mobile sources of pollution.

Such term includes parking lots, parking garages, and

12b

other facilities subject to any measure for management

of parking supply (within the meaning of section

110(¢\(2)(D)(ii) [42 USCS § 7410(c)(2)(D)(ii)}),

including regulation of existing off-street parking but

such term does not include new or existing on-street

parking. Direct emissions sources or facilities at,

within, or associated with, any indirect source shall not

be deemed indirect sources for the purpose of this

paragraph.

(D) For purposes of this paragraph the term

"indirect source review program" means the facility-by-

facility review of indirect sources of air pollution,

including such measures as are necessary to assure, or

assist in assuring, that a new or modified indirect source

will not attract mobile sources of air pollution, the

emissions from which would cause or contribute to air

pollution concentrations—

(i) exceeding any national primary ambient air

quality standard for a mobile source-related air

pollutant after the primary standard attainment date,

or

(ii) preventing maintenance of any such

standard after such date.

(E) For purposes of this paragraph and paragraph

(2)(B), the term “transportation control measure" does

not include any measure which is an "indirect source

review program".

(6) No State plan shall be treated as meeting the

requirements of this section unless such plan provides that

in the case of any source which uses a supplemental, or

intermittent control system for purposes of meeting the

requirements of an order under section 1 13(d) or section

119 (relating to primary nonferrous smelter orders) [42

13b

USCS § 7419], the owner or operator of such source may

not temporarily reduce the pay of any employee by reason

of the use of such supplemental or intermittent or other

dispersion dependent control system.

14b

42 U.S.C. § 7521. Emission standards for new motor

vehicles or new motor vehicle engines

(a) Authority of Administrator to prescribe by

regulation

Except as otherwise provided in subsection (b) of this

section—

(1) The 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. Such standards shall

be applicable to such vehicles and engines for their

useful life (as determined under subsection (d), relating

to useful life of vehicles for purposes of certification),

whether such vehicles and engines are designed as

complete systems or incorporate devices to prevent or

control such pollution.