Reply Brief — Massachusetts v. EPA

; Te ‘3? E

IN THE es ae

Supreme Court of the United States .

COMMONWEALTH OF MASSACHUSETTS, ef al.

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

REPLY BRIEF OF PETITIONERS

THOMAS F. REILLY

Attorney General

of Massachusetts

RICHARD J. LAZARUS JAMES R. MILKEY*

LISA HEINZERLING WILLIAM L. PARDEE

Georgetown Univ. Law Center CAROL IANCU

600 New Jersey Ave., N.W. Assistant Attorneys General

Washington, DC 20001 - | Ashburton Place, 18th Floor

Boston, MA 02108

(617) 727-2200

*Counsel of Record

Attorneys for Petitioners

(Additional Counsel Listed on Signature Pages)

—_—

Table of Contents.

I. The Solicitor General’s Assertion That EPA Has

Virtually Unbridled Discretion Underscores the

Need for this Court’s Review.

Il. EPA Mischaracterizes This Case As Turning

On Its Evaluation of Scientific Uncertainty.

III. | The Question of EPA’s Legal Authority

to Regulate Greenhouse Gases Is Fit

for Supreme Court Review Now.

IV. Petitioners Amply Demonstrated Their

Standing

Table of Authorities.

Cases.

Bennett v. Spear, 520 U.S. 154 (1997) 8

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) 4

Federal Election Comm'n vy. Akins, 524 U.S. 11 (1998) 10

Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut.

Auto Ins.Co., 463 U.S. 29 (1983) 4,5,7

Nat’l Mining Ass'n v. DOI, 70 F.3d 1345 (D.C. Cir. 1995) 5

Vermont Yankee Nuclear Power Corp v. NRDC,

435 U.S. 519 (1978) 5

Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) 4,5

Statutes, Regulations & Court Rules.

CAA §202(a)(1), 42 U.S.C. §7521(a)(1) 3, 4,7

CAA §307(b), 42 U.S.C. § 7607(b) 8

Supreme Court Rule 10 | : 1,6

il

Miscellaneous.

H.R. Rep. No. 95-294

National Research Council, Climate Change Science:

An Analysis of Some Key Questions (2001)

iil

-EPA’s brief in opposition underscores rather than diminishes,

the urgency of this Court’s review. First, the Solicitor General,

on behalf of EPA, embraces the radical administrative law

~ implications of the lead opinion below. It is black letter law that

an agency must confine its decision-making to the factors that

Congress mandated the agency to consider. Yet, because the

Clean Air Act authorizes the Administrator to use his “judgment”

in exercising his regulatory authority, EPA argues that the

Administrator possesses unbridled discretion to act in any way he

sees fit and is free to rely on broad policy considerations

untethered to the substantive standards set forth in the statute.

EPA Br. in Opp. 20. EPA asserts nothing short of the power to

override the express limitations on agency discretion that

Congress has enacted. Because literally hundreds of federal

statutes authorize agency officials to use their “judgment” in

exercising their discretion, the lead opinion below — now

emphatically embraced by the Solicitor General — has sweeping

ramifications for executive branch authority. These ramifications,

standing alone, supply the “compelling reasons” necessary to

warrant this Court’s review. S. Ct. R. 10.

Second, EPA’s opposition claims that the result below can be

defended as an expert agency evaluation of scientific uncertainty.

EPA Br. in Opp. 4-5, 19-21. But the brief cannot obscure the fact

that the agency below never applied the governing statutory

standard and relied on ultra vires policy considerations. This

Court’s supervisory review is necessary to assure that lower

courts prevent, rather than encourage, such reckless agency

departures from their statutory mandates.

Third, as described in the petition, the Court should extend its

grant of certiorari to the legal question whether EPA has authority

to regulate carbon dioxide and other “greenhouse gases” as “air

pollutants,” within the meaning of the Clean Air Act, even though

the court below did not reach the issue. That legal issue was fully

briefed below, exhaustively analyzed in Judge Tatel’s separate

opinion, and would not appreciably benefit from further

“percolation” in the lower courts, especially in light of the D.C.

2

Circuit’s exclusive jurisdiction over EPA actions that have

national applicability. And, once the Court reaches the question

of whether EPA can rely on policy considerations not enumerated

in the statute, judicial efficiency strongly supports review of

whether the agency has authority to regulate greenhouse gases.

Fourth, EPA’s claim that petitioners lack Article III standing

(EPA Br. in Opp. 10-15) does not support the petition’s denial.

The lower court’s conclusion on standing does not conflict with

decisions of any other court of appeals, and it presents a fact-

bound ruling that does not rise to the level of importance

necessary for this Court’s plenary consideration. Because,

moreover, petitioners clearly meet Article Ill standing

requirements, there is nothing preventing this Court from

reaching the important question of federal law presented by the

petition.

Finally, the Court should decline the brief in opposition’s

invitation to delay indefinitely any consideration of the critical

legal issues raised by the petition. There are compelling reasons

for the Court to join the issue now. The question whether and to

what extent this nation should be- addressing global climate

change is one of the most important public health and welfare

issues of the twenty-first century, with extraordinary implications

for present and future generations of Americans.

We believe that the science is clear that EPA should act. But

whatever one believes on this point, the executive branch cannot

ignore the clear instructions of the legislative branch in

determining how best to address such an important issue.

Congress has not ordained the EPA or any other part of the

executive branch a “super legislature” to decide how climate

change should be addressed. Congress instead enacted a law, the

Clean Air Act, that established a framework for addressing new

air pollution problems, as they appeared, including through

regulating emissions from motor vehicles. It is incumbent upon

the executive branch to adhere strictly to the law’s terms. If the

3

executive branch believes there is a reason to depart from that

existing statutory framework, its sole recourse is to persuade

Congress to amend the law. For that reason, the lower court

fundamentally erred in sanctioning the executive branch’s bald

attempt to refashion the law by administrative fiat. The petition

should, accordingly, be granted.

I. The Solicitor General’s Assertion That EPA Has

Virtually Unbridled Discretion Underscores the Need for

this Court’s Review.

On behalf of EPA, the Solicitor General invokes a radical

vision of administrative law under which agencies can exercise

unlimited legislative judgment immune from judicial review.

This extraordinary assertion of executive authority underscores

the need for this Court’s review.

Section 202(a)(1) of the Clean Air Act dictates that the

Administrator’s decision whether to regulate motor vehicle

emissions must turn on his “judgment” whether these emissions

“may reasonably be anticipated to endanger public health or

welfare.” 42 U.S.C. § 7521(a)(1). The lower court decision,

however, allows EPA to base its decision on “‘policy’

considerations” that are not legally relevant under the statutory

endangerment standard. (App. 13-14.) As Judge Tatel observed

in dissent, the statute provides the Administrator “no discretion

either to base that judgment on reasons unrelated to this standard

or to withhold judgment for such reasons.” (App. 46.) EPA

cannot ignore a congressional mandate that it “shall” regulate

dangerous substances simply because it disagrees that such

regulation would be a good idea.

In its opposition, EPA responds with extravagant claims of

virtually unlimited discretion. EPA contends that because Section

202(a)(1) authorizes the agency to use “judgment” in deciding

whether the endangerment standard has been met, the

Administrator has authority to consider any other policy

4

consideration he chooses. EPA Br. in Opp. 20. According to the

agency: “Section 202(a)(1) simply states that any regulation in

this area is conditioned on an exercise of EPA’s ‘judgment,’ and

it does not in any way cabin the Agency’s discretion -- procedural

or substantive -- to decide how to make that judgment most

effectively.” Jd. See, also, id. at 19 & n.7 (defending the

agency’s decision not to regulate based on its assessment of the

“policy implications” of regulating).

The word “judgment” cannot support the Solicitor General’s

sweeping claim of unbridled executive branch lawmaking

authority. Simply put, authorizing an agency official to use

“judgment” in applying the surrounding statutory criteria does

not evince congressional intent to override the plain meaning of

those criteria. In choosing language of governing statutes,

Congress carefully imposes important substantive and

procedural restraints on agency officials’ exercise of their

lawmaking authority. These restraints supply the “intelligible

principle” necessary to avoid nondelegation doctrine concerns,

as well as the “law to apply” necessary for judicial review. See

Citizens to Preserve Overton Park vy. Volpe, 401 U.S. 402, 410

(1971) (citation omitted).

EPA’s provocative contentions are squarely opposed to this

Court’s administrative law precedents. It is axiomatic that an

agency must stick to the criteria that its statute makes relevant.

Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto

Ins.Co., 463 U.S. 29, 43 (1983). This Court has emphatically

applied this principle in interpreting the Clean Air Act. In

Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 467-

71 (2001), the Court unanimously rejected the notion that EPA

could apply economic factors to a decision that Congress directed

be made based on health-based criteria. Notably. the Court

rejected the argument that the Administrator could apply

substantive policy factors other than those set forth in the statute

even though the statute directed him to apply his “judgment” in

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coming to a decision. /d. at 469.

The one opinion of this Court that EPA cites in support of its

claim to unbridled discretion does not help the agency. That case,

Vermont Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519

(1978), rejected the D.C. Circuit’s imposition of extra procedures

on agency rulemakings beyond the Administrative Procedure Act

minimum. Far from advocating imposition of optional

procedures, petitioners here simply seek ordinary judicial review

of a final agency decision, as expressly provided for in the Clean.

Air Act. In Motor Vehicle Mfrs. Ass'n, this Court recognized that

Vermont Yankee poses no obstacle to such review, and indeed

cautioned against reading that decision as “a talisman under

which any agency decision is by definition unimpeachable.” 463

US. at 50.'

The Solicitor General’s contention that the statutory phrase

“in his judgment” confers unfettered discretion would have a

huge impact on executive branch authority far beyond this case.

The directive to use “judgment” in applying statutory criteria is

repeated not only throughout federal environmental laws, but in

a host of other federal laws covering a wide range of subjects. In

each such statute, Congress has conferred lawmaking authority on

federal executive branch agencies. As this Court described in

Whitman v. American Trucking:

the degree of agency discretion that is acceptable varies

according to the scope of the power congressionally

' EPA also claims that its decision below may be unreviewable because it —

involves the denial of a rulemaking petition, despite the fact that the agency

issued a detailed decision on the merits after soliciting and considering almost

50,000 public comments. See EPA Br. in Opp. 17, n. 6 (suggesting that an

agency's discretion to reject regulatory action is “‘so braad as to make the

process akin to nonreviewability,”” quoting Nat'l Mining Ass ‘nv. DOI, 70 F.3d

1345, 1352 (D.C. Cir. 1995)). This extraordinary position is refuted by the

Clean Air Act’s judicial review provisions and the Administrative Procedure

Act, neither of which distinguishes between such denials and other kinds of

agency decisions.

6

conferred. While Congress need not provide any

direction to EPA regarding the manner in which it is to

define “country elevators,” * * * it must provide

substantial guidance on setting standards * * * that affect

the entire national economy.

531 U.S. at 475 (citation omitted).

Yet, according to the Solicitor General and EPA, by including

the statutory phrase “in his judgment,” Congress has dictated that

there be no limits at all — either “procedural or substantive” (EPA

Br. in Opp. 20) - on agency discretion in administering hundreds

of federal statutory programs throughout the United States Code.

The separation of powers implications of such a pernicious

proposition clearly supply the “compelling reasons” necessary to

warrant this Court’s review. S. Ct. R. 10.

Il. EPA Mischaracterizes This Case As Turning On Its

Evaluation of Scientific Uncertainty

The Solicitor General alternatively suggests that EPA’s

decision turned exclusively on the agency’s evaluation of

uncertainty in the science of climate change. See, e.g., EPA Br.

in Opp. 4-5. But EPA has never claimed that additional

information is needed to form a “judgment” on whether the

endangerment standard had been met. See App. 50 (Tatel, J.)

Moreover, scientific uncertainty was only one of several factors

that EPA cited as a reason for not setting emission standards for

greenhouse gases. See App. 13-15. Judge Randolph’s lead

opinion expressly noted (and endorsed) the Administrator's

reliance on wide ranging “‘policy’ considerations” akin to those

that might be considered by a legislature in deciding whether to

pass a law. Jd. Reliance on these ultra vires factors inherently

taints EPA’s decision, and, at the very least, a remand is

required to compel the lower court to apply the statutory

standard actually supplied by Congress — whether greenhouse

gas emissions from motor vehicles “cause or contribute to, air

—_

7

pollution which may reasonably be anticipated to endanger

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

Further, the brief in opposition mischaracterizes the science

in the administrative record, in particular the 2001 National

Research Council Report on which it claims to rely. See Br. in

Opp. 4. What the 2001 report actually expressed was the

consensus conclusion of scientific experts throughout the world

that, “(dJespite the uncertainties,” global warming is real and is

occurring as a result of greenhouse gas emissions. See, e.g., NRC

Report at 1, 3 [JA 68], 683].

The amicus brief filed by leading climate scientists, including

several authors of the NRC Report, explains how EPA and the

lead opinion below misrepresent what the 2001 report actually

says by using selective citations “that emphasize uncertainties in

the details while neglecting fundamental areas of certainty or

consensus, giving the impression that climate science is more

uncertain than it actually is.” See, Br. of Amici Curiae Climate

Scientists David Battisti, et a/., 16. While the scientists obviously

believe that further study as to the exact timing and magnitude of _

the anticipated impacts has important value, they emphasize that

such study need not, and should not, delay evaluation of the scope

of the threat posed and whether regulation is warranted. /d. at 14-

16, 19. Their brief underscores EPA’s utter failure to explain why

remaining uncertainties in the details justify EPA’s inaction. See

Motor Vehicle Mfrs. Ass'n, 463 U.S. at 52 (agency cannot

“merely recite the terms ‘substantial uncertainty’ as a justification

for its actions” but must “explain the evidence which is available,

and must offer a rational connection between the facts found and

the choice made”)(internal quotation omitted).

Finally, EPA mischaracterizes petitioners’ position on the

legal significance of scientific uncertainty. EPA Br. in Opp. 19-

20. Petitioners recognize that the EPA Administrator enjoys

substantial discretion in evaluating the science so as to form his

“judgment” on whether the statutory endangerment standard has

8

been met. But this is a far cry from the agency’s claim — blessed

by the lead opinion below — of freedom to cite uncertainty as a

basis for refusing regulatory action without in any way measuring

the scientific particulars against the statutory endangerment

standard. This Court’s review is necessary to provide

appropriate guidance to the courts of appeal.

Ill. The Question of EPA’s Legal Authority to Regulate

Greenhouse Gases Is Fit for Supreme Court Review

Now.

EPA argues that this Court should not review whether the

Clean Air Act authorizes regulation of greenhouse gas emissions

because the question “was not decided by the court of

appeals. .. and it has never been addressed by any other court of

appeals.” EPA Br. in Opp. 22. But that important statutory

question was fully argued below, and Judge Tatel’s opinion

analyzes it in detail, without any contrary views expressed by

the other members of the panel. The value of waiting for the

D.C. Circuit to address the issue in another case is minimal.

This Court should grant review of the question now in the

interest of judicial economy. Bennett v. Spear, 520 U.S. 154,

166-67 (1997)(reaching issues that were not relied upon by the

lower court).

Such review is also supported by the jurisdictional provisions

of the Clean Air Act, which favor prompt and definitive review

by setting a 60-day statute of limitations and by channeling all

nationally applicable EPA decisions to the D.C. Circuit. 42

U.S.C. § 7607(b). See, also, H.R. Rep. No. 95-294, at 323-24

(confirming this intent). Indeed, given the D.C. Circuit’s

exclusive jurisdiction over EPA’s nationally applicable decisions,

the issue may never come before another circuit.

IV. Petitioners Amply Demonstrated Their Standing.

EPA’s claim that petitioners lack Article III standing to

challenge EPA’s decision (EPA Br. in Opp. 10-15) is neither

9

worthy of this Court’s consideration nor a basis to deny certiorari

on the issues petitioners have raised. The lower court’s standing

determination is correct, does not conflict with any other court of

appeals’ ruling, and is an entirely fact-bound ruling that falls far

short of a legal issue warranting this Court’s review. Even if the

Court were to conclude that petitioners’ standing should be

addressed, however, that would at most supply an additional issue

for review and not a reason to deny review of petitioners’ issues.

The two judges who found jurisdiction each expressly.

determined that petitioners’ declarations supported all three

elements of standing: injury-in-fact, causation, and redressability.

(App. 8, 27-31.)’ Their conclusion was unquestionably correct.

Injury in fact: Through voluminous and uncontested declarations,

petitioners documented harm they face as a result of EPA’s

refusal to regulate the emission of greenhouse gases. As just one

example, petitioner Massachusetts owns approximately 200 miles

of coastline that is being inundated as a result of rising seas

caused by greenhouse gas emissions. See Hoogeboom Decl. ff 4-

9; Jacqz Decl. ¥§ 8-11; MacCracken Decl. § 23-25; Kirshen Decl.

?*| 7-8, Oppenheimer Decl. 4 7. Judge Tatel’s opinion includes

an extensive discussion of how the injuries that petitioners will

suffer are the sorts of specific, concrete injuries necessary to

establish injury-in-fact. See App. 27-28. EPA does not contest

> While finding jurisdiction, Judge Randolph nevertheless raised some

question about petitioners’ standing. He concluded that there appeared to be

a live factual controversy over standing based on his sense that there must be

evidence in the administrative record (which he did not identify) that

“contradicts petitioners’ claim that greenhouse gas emissions from new motor

vehicles have caused or will cause a significant change in the global climate.”

(App. 9.) But EPA never asserted a factual controversy at any stage of this

proceeding and does not do so today. See EPA Br. in Opp 15 (disavowing any

reliance on a “factual dispute raised by the declarations submitted by

petitioners”). Even though Judge Randolph’s discussion about what appellate

courts should do in the event of a factual dispute over standing was

unnecessary, his conclusion that the court had jurisdiction was correct.

10

this conclusion.’

Causation: EPA also does not contest petitioners’ demonstration

that greenhouse gas emissions are causing their injury. Because

greenhouse gases are emitted from many sources, however,

EPA argues that petitioners have not sufficiently demonstrated

that its failure to set emissions standards for motor vehicles is

causing their harm. But it is uncontested that additional

greenhouse gas emissions will cause effects (such as increased sea

level rise) that will increase petitioners’ harm (such as destruction

of property that state petitioners own along the coast). This

causation depends on the laws of physics, not the independent

actions of third parties. Petitioners’ uncontested proof of their

harm is neither “indirect” nor “speculative.”

Redressability: Given this causal relationship, it follows that by

limiting emissions from U.S. motor vehicles, EPA would reduce

the injury caused to petitioners by these emissions. Hence,

reversal of EPA’s position would redress harm to the petitioners.

Reversal of EPA’s legal position would also allow additional

redress through regulation of other sources that emit greenhouse

gases, such as power plants. Motor vehicles and power plants

together represent 60 percent of U.S. carbon dioxide emissions,

hardly an inconsiderable share of the problem given that U.S.

emissions make up approximately one-fourth of world totals.

MacCracken Decl. 4" 30-31. The court of appeals correctly

rejected EPA’s causation and redressability arguments and

properly determined that it had jurisdiction.

Conclusion

For the foregoing reasons, and those stated in the petition,

the petition for a writ of certiorari should be granted.

> The Solicitor General offers no support for Judge Sentelle’s conclusion that

the generalized grievance doctrine applies (App. 18-19), a conclusion that

cannot be squared with either the majority or dissenting opinions in Federal

Election Comm'n vy. Akins, 524 U.S. 11; 23-25, 35 (1998).

RICHARD J. LAZARUS

LISA HEINZERLING

Georgetown Univ. Law Center

600 New Jersey Ave. N.W.

Washington, DC 20001

(202) 662-9115

Respectfully submitted,

THOMAS F. REILLY

Attorney General

Comm. of Massachusetts

JAMES R. MILKEY

Counsel of Record

WILLIAM L. PARDEE

CAROL IANCU

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Counsel for Commonwealth of Massachusetts

BILL LOCKYER

Attorney General of California

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612

(510) 622-2133

RICHARD BLUMENTHAL

Attorney General of

Connecticut

P.O. Box 120

55 Elm Street

Hartford, CT 06141

(860) 808-5250

LISA MADIGAN,

Attorney General of Illinois

188 West Randolph Street

20th Floor

Chicago, IL 60601

(312) 814-3369

G. STEVEN ROWE

Attorney General of Maine

State House Station #6

Augusta, Mr 04333

(207) 626-8545

ELIOT SPITZER

Attorney General

of New York

120 Broadway

New York, NY 1027}

(212) 416-8450

PATRICK C. LYNCH

Attorney General

of Rhode Island

150 South Main Street

Providence, RI]

(401) 274-4400

ZULIMA V. FARBER

Attorney General of New

Jersey

Richard J. Hughes Justice

Complex

25 Market St., P.O. Box 093

Trenton, NJ 08625

(609) 633-8713

PATRICIA A. MADRID

Attorney General

of New Mexico

P.O. Drawer 1508

Sante Fe, NM 87504

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HARDY MYERS

Attorney General of Oregon

Oregon Department of

Justice |

1162 Court Street, Suite 100

Salem, OR 97310

(503) 229-5725

WILLIAM H. SORRELL

Attorney General of Vermont

109 State Street

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ROB MCKENNA

Attorney General of

Washington |

P.O. Box 40117

Olympia, WA 98504

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MALAETAS!I M. TOGAFAU

Attorney General of American

Samoa

P.O. Box 7

Pago Pago, American Samoa

96799

011 (684) 633-4163

RALPH S. TYLER III

City Solicitor

City of Baltimore

Baltimore City Dept. of Law

100 Holliday Street

Baltimore, MD 21202

(410) 396-4094

13

ROBERT J. SPAGNOLETTI

Attorney General of the

District of Columbia

44] Fourth Street, N.W.

6th Floor South

Washington, DC 20001

(202) 724-5667

MICHAEL CARDOZO

Corporation Counsel

City of New York

100 Church Street

New York, NY 10007

(212) 676-8517

DAVID BOOKBINDER

408 C Street, NE

Washington, DC 20002

(202) 548-4598

Counsel for Center for

Biological Diversity,

Conservation Law

Foundation, Sierra Club,

National Environmental

Trust, U.S. Public Interest

Research Group, Union of

Concerned Scientists

HOWARD Fox

1625 Massachusetts Ave..

NW, Suite 702

Washington, DC 20036

(202) 667-4500

Counsel for Sierra Club

JOSEPH MENDELSON III

660 Pennsylvania Ave. SE

Washington, DC 20003

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Counsel for International

Center for Technology

Assessment, Center for Food

Safety, Environmental

Advocates, Greenpeace

JAMES B. TRIPP

257 Park Avenue South

17th Floor

New York, NY 10010

(212) 505-2100

Counsel for Environmental

Defense

JAY TUTCHTON

Environmental Law Clinic

University of Denver,

College of Law

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Denver, CO 80208

(303) 871-6034

Counsel for Center for

Biological Diversity

DAVID DONIGER

1200 New York Ave.

Washington, DC 20005

(202) 289-2403

Counsel for Natural

Resources Defense Council

SETH KAPLAN

62 Summer Street

Boston, MA 02110

(617) 350-0990

Counsel for Conservation

Law Foundation

JOHN M. STANTON

MARK WENZLER

1200 18th Street, N.W.

Washington, DC 20036

(202) 887-8800

Counsel for National

Environmental Trust

BRIAN S. DUNKIEL

Shems Dunkiel Kassel &

Saunders PLLC

91 College Street

Burlington, VT 05401

(802) 860-1003

Counsel for Friends of the

Earth

May 22, 2006

15

JULIE M. ANDERSON

1707 H St., N.W. Suite 600

Washington, DC 20006

(202) 223-6133 Ext. 109

Counsel for Union of

Concerned Scientists