# Opposition Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A03. Public record. Not legal advice.