Amicus Curiae Brief — Massachusetts v. EPA

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39 File Date:

No. 05-1129 MAY 15 2006

In The

Supreme Court of the Anited States

COMMONWEALTH OF MASSACHUSETTS, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF OF THE U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

AMERICAN PLANNING ASSOCIATION, AND THE

CITY OF SEATTLE, WASHINGTON, AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

TIMOTHY J. DOWLING

Counsel of Record

JENNIFER BRADLEY

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave. NW

Suite 502

Washington, D.C. 20036

(202) 296-6889

Counsel for Amici Curiae

COOKER LAW BRIBE PRINTING Cor ste 295-6

ORCALL COLLECT 402) 447-285)

TABLE OF CONTENTS

Page

ee I FT PE ccisescecinsicscecteccccscinmesseseens ii

INTEREST OF THE AMICI CURIAE .......................4. l

SUMMARY OF ARGUMENT. .................cccccesesseeeeceeeeeees 3

|___Fan Ere ETO ERED 5

I THE QUESTIONS PRESENTED ARE OF

EXTRAORDINARY IMPORTANCE.................. 5

Il. PRIOR GRANTS OF CERTIORARI SHOW

THAT THE QUESTIONS PRESENTED

HERE ARE WORTHY OF REVIEW ................. 13

Il. EPAS MISGUIDED AND SHIFTING POSI-

TIONS AND THE DEEPLY FRACTURED

JUDICIAL RULING BELOW PROVIDE FUR-

THER JUSTIFICATION FOR REVIEW......... i

ene sicciieuihininehintsindentonsedesieehaniithiaispuigiienhibiminiaicnnasainiee 17

TABLE OF AUTHORITIES

Page

CASES

Alaska Dep't of Envtl. Conservation v. EPA, 540

RE ee Ae NR es eo Ei ae Seren OP Oe 13

American Insurance Ass’n v. Garamendi, 539 U.S.

| ESRESER ES toe Beanreore EROS HILT SN UREN ee Park SOO Ee 14

National Credit Union Administration v. First

National Bank & Trust Co., 522 U.S. 479 (1998) ......... 14

Tahoe-Sierra Preservation Council, Inc. v. Tahoe :

Regional Planning Agency, 535 U.S. 302 (2002)........... 13

Train v. Colorado Public Interest Research Group,

Pc, I Coe 13

CONSTITUTION, STATUTES & REGULATIONS

Clean Air Act, 42 U.S.C. § 7401 et segq.:

I a 15

fg, ETE IE A ee eRe rte yr 14,17

ST 16

OTHER AUTHORITIES

71 Fed. Reg. 17566 (April 6, 2006) ................................000 16

A.J. McMichael et al., COMPARATIVE QUANTIFICA-

TION OF HEALTH RISKS: GLOBAL AND REGIONAL

BURDEN OF DISEASE DUE TO SELECTED MAJOR

Risk FACTORS (World Health Organization, Ge-

i 12

ill

TABLE OF AUTHORITIES — Continued

Andrew C. Revkin, Federal Study Finds Accord on

Warming, N.Y. TIMES, May 3, 2006 ................00...0...

Anthony Ramirez, Allstate to Pare Home Policies

Near Shore, N.Y. TIMEs, Mar. 10, 2006 .............000....

Benjamin Constant, THE LIBERTY OF THE ANCIENTS

COMPARED WITH THAT OF THE MODERNS, in Con-

stant: Political Writings (Biancamaria Fontana

I Be. Te 0 i iceecicctesonitecsdessssechsucuscdcocstens

Eileen Claussen, An Effective Approach to Climate

Change, 306 SCIENCE 816 (Oct. 2004) 00.0.0. ;

Elizabeth Kolbert, FIELD NOTES FROM A CATASTROPHE:

MAN, NATURE, AND CLIMATE CHANGE (Bloomsbury

RETIREES se aN nee iene ake

J. Alan Pounds et al., Widespread Amphibian

Extinctions from Epidemic Disease Driven by

Global Warming, 439 NATURE 161 (Jan. 12, 2006)..

Jonathan Patz et al., Impact of Regional Climate

Change on Human Health, 438 NATURE 310 (Nov.

rg a iinssaniaicinncsniedpsniousecinnteeiansinntaleiaibipupeniiiameesen

Kelly Quirke, Global Warming and Increasing

Catastrophe Losses: The Changing Climate of

Financial Risk, 12 J. Ins. Reg. 452 (1994) ...............

NATIONAL ASSESSMENT SYNTHESIS TEAM, CLIMATE

CHANGE IMPACTS ON THE UNITED STATES: THE

POTENTIAL CONSEQUENCES OF CLIMATE VARIABIL-

ITY AND CHANGE, REPORT FOR THE U.S. GLOBAL

sisal 5

CHANGE RESEARCH PROGRAM (2001)............. 7,8,9, 11,12

Naomi Oreskes, Beyond the Ivory Tower: The

Scientific Consensus on Climate Change, 306

BS ID CRI, SID, on cccncccccconccnneusisesscsavavenusie

TABLE OF AUTHORITIES — Continued

Paul R. Epstein, /s Global Warming Harmful to

Health?, SC1ENTIFIC AMERICAN 50-(Aug. 2000).........

Quirin Schiermeier, A Sea Change, 439 NATURE 256

Ss en siesstisassctiniacensdipnusietnciniisiobiaiipnhpasheriedappilineindeibbieialingii

Randolph E. Schmid, Melting Ice Threatens Sea-

Level Rise, Associated Press, Mar. 24, 2006.............

REPORT OF WORKING GROUP II OF THE INTERGOV-

ERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY

FOR POLICYMAKERS CLIMATE CHANGE 2001: IM-

PACTS, ADAPTATION, AND VULNERABILITY (2001).....8, 10, 11

Richard A. Kerr, News Focus: Three Degrees of

Consensus, 305 SCIENCE 932 (August 13, 2004)......

Spencer S. Hsu, /nsurers Retreat from Coasts,

WASHINGTON Post, Apr. 30, 2006 ..0........c:cccccccevseeeees

Tim Barnett et al., The Effects of Climate Change

on Water Resources in the West: Introduction and

Overview, 62 CLIMATIC CHANGE 1 (2004)...................

Tim Flannery, THE WEATHER MAKERS (Atlantic

| REIS eS rears eee

U.S. Department of State, U.S. CLIMATE ACTION

ge fh} __ | 6,9, 10, 11

U.S. EPA, Average Annual Excess. Weather-Related

Mortality for 1993, 2020, and 2050 Climate, slide

at http://yosemite.epa.gov/OAR/globalwarming.nsf/

content/ResourceCenterPresentationsImpacts.htm] ....

INTEREST OF THE AMICI CURIAE

The U.S. Conference of Mayors represents over 1100

U.S. cities with populations of 30,000 or more. The Confer-

ence promotes the development of effective urban policy,

strengthens federal-city relationships, and creates a forum

in which mayors can share ideas and information. The

Conference historically has played a leadership role,

calling early attention to urban problems and pressing

successfully for solutions. In June 2005, the Conference

endorsed the U.S. Mayors Climate Protection Agreement,

which urges the federal government and state govern-

ments to enact policies to decrease global warming pollu-

tion levels, including efforts to reduce greenhouse gas

emissions from motor vehicles.

The National Association of Counties (NACo) was

created in 1935, and its membership totals more than

2,000 counties, representing over 80 percent of the nation’s

population. NACo acts as a liaison with other levels of

government, works to improve public understanding of

counties, serves as a national advocate for counties, and

helps counties find innovative solutions to the challenges

they face. The association is involved in a number of

special projects that address specific issues of importance

to counties, including issues relating to the environment

and sustainable communities.

The parties have consented to the filing of this brief and letters

reflecting that consent have been filed with the Clerk of the Court. This

brief was not authored in whole or in part by counsel for a party, and no

person or entity other than amici, their members, and their counsel

made a monetary contribution to the preparation or submission of this

brief.

The American Planning Association (APA) is a public

interest organization founded in 1978 to advance the art

and science of planning at the local, regional, state, and

national levels. It represents more than 38,000 planners,

officials, and citizens involved, on a day-to-day basis, in

formulating and implementing planning policies and land

use regulations. The APA encourages its members to

combat global warming in several ways, including the

design of transportation systems that promote sustainabil-

ity by reducing dependence on fossil fuels.

The City of Seattle — the largest city in the Pacific

Northwest, with a population of 572,000 — has a long

history of concern for environmental protection and global

warming in particular. Seattle is especially vulnerable to

the impacts of climate change, in part because its munici-

pal water supply and hydroelectric system are both de-

pendent on annual snowpack accumulations in the

Cascade mountains, which have already declined by 50

percent since 1950. Seattle’s electricity supply is essen-

' tially climate neutral, and actions to reduce climate

pollution emissions are one of the city’s highest priorities.

As local officials and planners, amici and their mem-

bers will be the first responders for the variety of disasters

that climate change may create, such as the deadly heat

waves that strike with special force in urban areas, and

the storm surges that threaten heavily populated coastal

municipalities. Local governments have a special respon-

sibility to protect, rescue, and rebuild after natural cata-

clysms of the kind that are likely to increase as the earth

warms. They also must grapple with the daily effects of

climate change: unreliable municipal water supplies

because of droughts or flash floods, and heat-induced air

pollution that violates federal standards. For these and

other reasons, amici’s interest in this case is strong, and

they submit this brief in support of the petition for certio-

rari to assist the Court in its consideration of the case.

SUMMARY OF ARGUMENT

The questions presented by this case are worthy of

review due to (1) their extraordinary importance; (2) the

badly fractured ruling by the appeals court below, together

with the absence of any further opportunity for judicial

clarification from other circuits; and (3) the U.S. Environ-

mental Protection Agency's incoherent explanation for its

position, which contravenes the plain text of the Clean Air

Act, as well as the legal conclusions reached by two previ-

ous EPA General Counsels.

It is difficult to imagine issues of federal statutory law

of greater importance, or more deserving of this Court's

review, than the questions presented here. Greenhouse

gases threaten a potential public-welfare catastrophe. The

leading voices of concern come from within the scientific

community, whose overwhelming consensus position is

that we must act now before the window of opportunity

closes.

Nearly 50,000 citizens submitted comments to EPA

regarding the 1999 petition to regulate greenhouse gases

under the Clean Air Act. In response, EPA declined to

reveal its view as to whether greenhouse gases are reasona-

bly anticipated to endanger public heaith or welfare under

section 202 of the Act. Instead, it articulated a reading of the

Act that contravenes the exceedingly broad definition of “air

pollutant” in section 302\g), and contradicts the Act's

express reference to carbon dioxide as an “air pollutant” in

section 103(g).

Although the legal issues before it were squarely and

cleanly presented, the federal appeals court produced as

badly fractured a judicial ruling as one can possibly receive,

with one judge affirming on standing grounds, another judge

affirming for policy reasons nowhere mentioned in the

statute, and a third judge authoring a lengthy and well-

reasoned dissent. This splintered panel ruling was capped by

a rehearing denial by the barest of margins (4-3).

Because of their exceptional importance, the legal

issues raised by the Petition for Writ of Certiorari deserve

a straightforward answer on the merits. And because the-

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

jurisdiction over these matters, there will be no “percola-

tion” of the issues in other circuits. Review by this Court is

necessary to provide the citizenry and our elected officials

with a clear judicial answer on the critical legal question

of whether the federal Clean Air Act authorizes regulation

of motor vehicle emissions that contribute to global warm-

ing. Those who bear the greatest risk from global warm-

ing, as well as those who share the economic burden of

reducing greenhouse gases, deserve no less.

Finally, review by the Court is particularly appropri-

ate in view of the federal governments recent statement

that federal law preempts State and local officials from

regulating greenhouse gas emissions from motor vehicles.

Unlike the usual situation in which a federal agency

disavows legal authority, which typically would leave the

matter to the States, EPA's position in this case takes on

far greater significance.

ARGUMENT

I. THE QUESTIONS PRESENTED ARE OF EX-

TRAORDINARY IMPORTANCE

“Indeed, if global warming is not a matter of exceptional

importance, then those words have no meaning.”

App. A-96 (Judge David Tatel, dissenting).

Judge Tatel is right. How else could one describe a

potential catastrophe that could bring melting ice caps,

rising sea levels, more severe hurricanes and other storms,

epidemic increases in cholera, malaria, dengue fever, and

other diseases, increased deaths from heat waves, more

frequent floods and droughts, crop damage with resulting

starvation, and devastating harm to wildlife and the

natural environment? It could be a disaster of Biblical

proportions. State and local officials will be the first

responders to these disasters, and their communities will

suffer the consequences of any failure to prevent or miti-

gate the damage.

The scientific community has reached a near-unanimous

consensus on three points: “global warming is occurring; the

primary cause is fossil fuel consumption; and if we don't act

now to reduce greenhouse gas emissions, it will get worse.”

~ See, e.g., Paul R. Epstein, Is Global Warming Harmful to Health ?,

ScrentiviC AMERICAN 50 (Aug. 2000) (describing the consequences of

global warming); Kelly Quirke, Global Warming and Increasing

Catastrophe Losses: The Changing Climate of Financial Risk, 12 J. Ins.

Reg. 452, 453-54 (1994) (“A litany of many of the predicted impacts of

climate change — increasingly intense and frequent hurricanes, rising

sea levels, coral bleaching, widespread droughts of long duration, record

treezes, floods and storms — are becoming common headlines. ”).

Eileen Claussen, An Effective Approach to Climate Change, 306

SCIENCE 816, 816 (Oct. 2004) [hereinafter Claussen |; accord Andrew C.

Revkin, Federal Study Finds Accord on Warming, N.Y. TiMe#s, May 3,

(Continued on following page)

In fact, the scientific community is the leading voice of

concern:

|I|n most of the cases, it’s the lay community that

ate ate ate

climate case, the experts — the people who work

with climate models every day, the people who do

ice cores — they are more concerned. They are go-

ing out of their way to say, “Wake up!”

Conservative predictions are that average global

temperatures will climb between 4.5 and seven degrees

Fahrenheit by the end of the century. These numbers

might seem small, but small shifts in global temperature

can have enormous effects. Indeed, there is only about a

2006, at A23 (“A scientific study commissioned by the Bush administra-

tion concluded yesterday that the lower atmosphere was indeed

growing warmer and that there was ‘clear evidence of human influences

on the climate system.’ ”); Naomi Oreskes, Beyond the lvory Tower: The

Scientific Consensus on Climate Change, 306 SCIENCE 1686, 1686 (Dec.

2004) (the consensus position is shared by “all major scientific bodies in

the United States whose members’ expertise bears directly on the

matter,” including the National Academy of Sciences, the American

Meteorological Society, the American Geophysical Union, and the

American Association for the Advancement of Science); id. (of the 928

peer-reviewed papers published between 1993 and 2003 on climate

change, none disagreed with the consensus position).

' See Elizabeth Kolbert, FIELD NoTES FRoM A CATASTROPHE: MAN,

NATURE, AND CLIMATE CHANGE 131-132 (Bloomsbury Publishing 2006)

|hereinafter Firiy Nores From A CarasrrorHE| (quoting the Co-

Director of Princeton University’s Carbon Mitigation Initiative).

U.S. Department of State, U.S. CLIMATE ACTION REPORT 2002 at

82 (May 2002) |hereinafter CLIMATE ACTION REPORT |, avarlable at http://

www.epa.gov/global warming/publications‘car/index.html; accord Richard A.

Kerr, News Focus: Three Degrees of Consensus, 305 SCIENCK 932, 932

(August 13, 2004) (“almost all the evidence points to 3°C jor 5.4°F| as

the most likely amount of warming for a doubling of CO, ... by

century's end.”)

ten degree increase between today’s average global tem-

perature and that at the height of the last ice age.’ The

United States is likely to warm between three and nine

degrees Fahrenheit during this century. ”

The harm caused by global climate change will be

especially challenging for state and local governments, for

several reasons. First, as has been made tragically clear in

the United States in the wake of recent man-made and

natural disasters, municipal governments are responsible

for orderly evacuations from fires and floods, and local

officials must plan and reconstruct neighborhoods or

entire cities afterwards. Global warming is likely to mean

more disasters like intense hurricanes and high storm

surges crashing into America’s eastern seaboard, which is

one of the most urbanized parts of the country and one of

the fastest growing. Population shifts alone-make global

warming a pressing municipal government problem.

Municipalities, particularly large ones, also have to

grapple with the less cataclysmic but still threatening

challenges of climate change, such as higher temperatures

* FIELD NOTES FROM A CATASTROPHE, supra note 4, at 107.

In the scientific dialogue on climate change, the words “likely”

and “very likely” have particular meaning. For example, in the Climate

Change Impacts Reports prepared for the federally sponsored U.S.

Global Change Research Program, “likely” indicates a likelihood of

around 60 to 80 percent, and “very likely” indicates a likelihood of

around 80 to 100 percent. See NATIONAL ASSESSMENT SYNTHESIS TRAM,

CLIMATE CHANGE IMPACTS ON THE UNireD Starrs: THE Porenrial.

CONSEQUENCES OF CLIMATE VARIABILITY AND CHANGE, REPORT POR THE

U.S. GLOBAL CHANGE RESEARCH PROGRAM 5 (2001) [hereinafter CLIMATE

CHANGE IMPACTS], available at http://www.usgerp.gov/usgerp/Library’

nationalassessment/foundation.htm.

CLIMATE ACTION REPORT, supra note 5, at 84.

that lead to more smog and federal sanctions for violating

clean air standards; or sudden ferocious rainstorms that

overwhelm and pollute municipal water supplies and flood

transportation networks; or droughts that disrupt hydro-

power transmission and deplete local reservoirs. As one

federal government report put it:

Climate change has greater potential to add to

existing stresses in urban areas due to the im-

pact of rising sea level and elevated storm

surges on transportation systems, increased

heat-related mortality and morbidity associated

with temperature extremes, increased ground-

level ozone pollution problems associated with

warning, and the impact of precipitation and

evaporation changes on water supply.

As discussed in more detail below, cities and counties

across the United States face one or more of these chal-

lenges. 2

Rising sea level and storm surges: Increasing sea

levels are one of the most certain results of climate

change. " The Intergovernmental Panel on Climate Change

(IPCC) has high confidence (a 67-95 percent degree of

certainty) that higher sea levels around North America

will lead to “enhanced coastal erosion, coastal flooding.

loss of coastal wetlands, and increased risk from storm

surges, particularly in Florida and much of the U.S.

Atlantic coast.”” In March 2006, scientists released new

’ CLIMATE CHANGE IMPACTS, supra note 7, at 111.

Id. at 156.

A Report oF Working Group Tor THE INTERGOVERNMENTAL

PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS CLIMATE

CHANGE 2001: IMPACTS, ADAPTATION, AND VULNERABILITY 4 n.6, 16

(2001), available at httpy//www.ipee.ch/pub/ wg2SPMfinal pdf.

studies showing a significant acceleration in the loss of

mass from the world’s great ice sheets, which is greatly

increasing the threat of catastrophic increases in sea

levels.”

Rising sea levels mean that by the turn of the next

century, New York City’s 100-year floods will instead occur

every 19 years, and are likely to overwhelm the city’s

airports, highways, subways, and tunnels. Natural and

human-induced changes, including the destruction of

marshes, barrier islands, and wetlands over the last

several decades, make the U.S. Gulf Coast particularly

susceptible to damage from rising sea levels. The two- to

five-fold increase in the rate of sea level rise predicted by

the IPCC “would very likely have dramatic effects on

population centers, infrastructure, and natural ecosystems

in the low-lying Gulf and South Atlantic Coastal zone.”

By 2010, 73 million people will live in the nation’s

most hurricane-prone counties, most of them in the South-

east United States. They will be in the path of more

destructive storms because climate change likely will

increase the intensity, if not the frequency, of Atlantic

hurricanes.’ Allstate Insurance Corporation no longer

“ Randolph E. Schmid, Melting Ice Threatens Sea-Level Rise,

Associated Press, Mar. 24, 2006 (reporting on new studies published in

the journal “Science”); see also Tim Flannery, THE WEATHER MAKERS 6,

144 (Atlantic Monthly Press 2005) (discussing recent studies showing

Greenland’s glaciers are melting ten times faster than previously

thought); Quirin Schiermeier, A Sea Change, 439 NATURE 256, 256-58

iJan. 2006) ithe Greenland ice sheet currently is shrinking by an

estimaied 50 cubic kilometers each year, posing a risk of catastrophic

shifts in ocean currents).

~ CLIMATE CHANGE IMPACTS, supra note 7, at 139.

' CLIMATE ACTION REPORT, supra note 5, at 100-01.

issues new policies to homeowners in Florida, Louisiana,

the New York City area, and the Texas Gulf Coast because

of the high risk of hurricane destruction.” Climate change

will thus contribute to a very dangerous mix of more

people, stronger storms, and more damage.

Heat morbidity and pollution § stresses: Not

surprisingly, the IPCC notes that very hot days and more

heat waves are “very likely” (a 90-99 percent chance) to

occur as a result of climate change. This would have a

devastating effect on human health, particularly in urban

areas. Cities are doubly at risk of heat waves because they

tend to trap heat, cooling less at night and providing less

relief to city dwellers, and because they tend to be home to

poor and vulnerable populations.’ EPA estimates that,

under one climate change scenario, “excess weather

related mortality” in a single year would mean the death

of 1250 people in New York City, 600 people in St. Louis,

and between 200 and 300 people in Atlanta, Dallas, and

Los Angeles.”

Warmer weather also exacerbates pollution, particu-

larly ground level ozone or smog, which is already a major

health concern in our nation’s cities and counties. The

added stresses of climate change will harm the residents

of these municipalities directly, as ozone levels and smog

’ Spencer 8. Hsu, Insurers Retreat from Coasts, WASHINGTON Post,

Apr. 30, 2006 at Al. See also Anthony Ramirez, Allstate to Pare Home

Policies Near Shore, N.Y. Times, Mar. 10, 2006, at B4.

WorRKING Group IL OF THE INTERGOVFRNMENTAL PANEL ON

CLIMATE CHANGE, supra note 11, at 8.

~ CLIMATE ACTION REPORT, supra note 5, at 106.

’ U.S. EPA, Average Annual Excess Weather-Related Mortality for

1993, 2020, and 2050 Climate, slide at http://yosemite.epa.gov/OAR/

globalwarming.nst/content/ResourceCenterPresentationsImpacts.html.

increase, and will put enormous strains on local govern-

ments. '

Water supplies: In 2000, the U.S. Department of

Energy sponsored research to determine how climate

change would alter the western United States. Research-

ers came to the disturbing conclusion that “even with a

conservative climate model, current demands on water

resources in many parts of the West will not be met under

plausible future climate conditions, much less the de-

mands of a larger population and a larger economy.” For

instance, the Colorado River Reservoir system will fail to

provide enough water to Southern California and inland

areas by 2050. Hydroelectric power from the Colorado

River will drop by as much as 40 percent. Warmer and

drier summers increase the fire risk for the West, particu-

larly the northern Rockies and the Southwest.”

While the West struggles with water scarcity (the

result of less snow and less water storage in the snow-

packs of western mountains), other regions could face

unusual floods and the contamination of water supplies.

Heavier rainfall in certain areas is a likely result

of climate change.” Heavy rainfall means more storm

water runoff, as the inundated ground cannot absorb the

rainwater racing across it. In the Great Plains, runoff

could contain “contaminants from fertilizers, herbicides,

CLIMATE CHANGE IMPACTS, supra note 7, at 133, 211-12, 238.

Tim Barnett et al., The Effects of Climate Change on Water Re-

sources in the West: Introduction and Overview, 62 CLAMATIC CHANGE 1, 6

(2004), available at http://www.uwyo.edwenr/enrschool/EN R4900_ 5900/

Barnett’? 20et% 20al.“7 202004. pdf.

Id. at 6-7.

~ CLIMATE ACTION REPORT, supra note 5, at 108.

pesticides, livestock wastes, salts, and sediments that

reduce the quality of both surface water and groundwater

drinking water supplies.”’ Heavy rains also increase the

possibility of human exposure to water-borne diseases like

cryptosporidium.

Global warming is not merely a future threat, but a

present deadly reality. The World Health Organization

estimates that anthropogenic (human-produced) warming

already is killing up to 150,000 people each year due to

malnutrition, malaria, and other maladies.’ In addition to

these ongoing public health consequences, global warming

also is causing immediate harm to the environment. And

as explained above, the overwhelming scientific consensus

is that global warming will significantly worsen.

“’ CLIMATE CHANGE IMPACTS, supra note 7, at 204.

*' Jonathan Patz et al., Impact of Regional Climate Change on

Human Health, 438 NATURE 310, 310 (Nov. 17, 2005) (World Health

Organization estimates that “warming and precipitation trends due to

anthropogenic climate change of the past 30 years already claim over

150,000 lives annually”); id. at 313 ‘citing AJ. McMichael et al.,

COMPARATIVE QUANTIFICATION OF HEALTH Risks: GLOBAL AND REGIONAL

BURDEN OF DiskAsk Dur TO SELECTED MAJOR Risk FACTORS 1543-1649

(World Health Organization, Geneva, 2004)).

~ J. Alan Pounds et al., Widespread Amphibian Extinctions from

Epidemic Disease Driven by Global Warming, 439 NATURE 161, 165

(Jan. 12, 2006) (Scientists have a “very high confidence level” (greater

than 99 percent) that global warming already has helped cause the loss

of many species and poses “an immediate threat to biodiversity.”).

Il. PRIOR GRANTS OF CERTIORARI SHOW

THAT THE QUESTIONS PRESENTED HERE

ARE WORTHY OF REVIEW.

This Court repeatedly has reviewed important issues

involving EPA’s authority under our major environmental

statutes, including the Clean Air Act. Just two years ago,

the Court granted certiorari “to resolve an important

question of federal law, i.e., the scope of EPA’s authority”

under the Act, notwithstanding the absence of a circuit

split. Alaska Dept of Envtl. Conservation v. EPA, 540 U.S.

461, 482 (2004).

The Court also has granted review in cases implicat-

ing a single natural resource of special importance. See

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302, 307, 320 (2002) (certiorari

granted “|blecause of the importance of the case,” based in

part on the potential impact on a “uniquely beautiful”

natural resource). A fortiori, review is warranted here,

where global warming threatens human health, public

welfare, and countless natural resources of exceptional

importance.

This Court also has characterized as worthy of certio-

rari various issues regarding the allocation of regulatory

jurisdiction among federal agencies, particularly on

environmental matters. For example, in Train v. Colorado

Public Interest Research Group, Inc., 426 U.S. 1 (1976), the

Court granted certiorari “|blecause of the importance of

the issue” of whether EPA or the Atomic Energy Commis-

sion had authority to regulate effluent discharges from

nuclear plants. /d. at 5. The case at bar raises similar issues

regarding whether~the Clean Air Act authorizes EPA to

regulate greenhouse gas emissions from motor vehicles,

notwithstanding the U.S. Department of Transportation's

authority to set fuel economy standards. As Judge Tatel

observed in dissent, the regulatory regimes are not incon-

sistent, the Congress anticipated this regulatory overlap,

and there is no reason to assume Congress exempted an

entire class of pollutants from regulation under the Clean

Air Act. App. A-41 to A-42.

Finally, the nationwide implications of the case

further increase the importance of the issues and need for

review. See National Credit Union Administration v. First

National Bank & Trust Co., 522 U.S. 479, 487 & n.3 (1998)

(certiorari granted due to “the importance of the issues” in

light of a nationwide injunction implementing the lower

court rulings); American Insurance Ass’n v. Garamendi,

539 U.S. 396, 413 & n.6 (2003) (issue raised by a Califor-

nia law is important and worthy of review in part because

several other States have passed similar laws). Because

the D.C. Circuit has exclusive jurisdiction over petitions

for review challenging determinations made under section

202 of the Clean Air Act (42 U.S.C. § 7607(b\(1)), the

nationwide influence of its ruling confirms the need for

close scrutiny.

lil. EPA'S MISGUIDED AND SHIFTING POSI-

TIONS AND THE DEEPLY FRACTURED JUDI-

CIAL RULING BELOW PROVIDE FURTHER

JUSTIFICATION FOR REVIEW.

Public interest and concern with global warming is

enormous, with citizens submitting almost 50,000 comments

to EPA regarding the 1999 petition to regulate greenhouse

gases under the Clean Air Act. App. A-63. Most of the com-

menters supported the request. Jd. Some thirty parties -

including twelve States with a total population exceeding

100 million people — filed the Petition for Review in the D.C.

Circuit challenging EPA’s rejection of the 1999 petition.

Ten States have weighed in on the other side, confirming

that the case involves a fundamental legal dispute among

two large State coalitions.

In the face of this monumental public concern, where

have the agency and the appeals court left us? EPA pro-

duced an utterly incoherent explanation for why it de-

clines to reveal its views on whether greenhouse gases are

reasonably anticipated to endanger public health or

welfare under section 202. As explained in the Petition for

Certiorari, EPA’ analysis contravenes the Act’s exceed-

ingly broad definition of “air pollutant” in section 302(g)

(42 U.S.C. § 7602(g)), and contradicts the Act’s express

reference to carbon dioxide as an air pollutant in section

103(g) (42 U.S.C. § 7403(g)). In addition to being wholly

untethered to the text of the Act, EPA’s position contra-

venes the legal conclusions reached by two previous EPA

General Counsels. App. A-68.

On appeal, the legal issues were squarely and cleanly

presented, but the D.C. Circuit rendered a badly fractured

ruling, with one judge affirming on standing grounds,

another affirming on policy grounds nowhere mentioned in

the statute, and a third judge authoring a lengthy and

blistering dissent, capped by an en banc rehearing denial

by the barest of margins (4-3), with two judges not partici-

pating.

After all this, our citizenry has no definitive judicial

ruling on the critical legal issue of whether EPA may

regulate greenhouse gases under section 202. The States,

other government bodies, and numerous environmental

groups that filed this case: the 50,000 commenters on the

1999 petition to EPA; the scientific community; and the

American people deserve better. These tens of thousands

of citizens have attempted an active “participation in

collective power” of the government on one of the most

pressing public policy issues of our time, only to be handed

a thoroughly confused and misguided reaction from the

bureaucracy and a fractured judicial response.

Finally, review by the Court is especially appropriate

in light of the federal government’s recent assertion that

federal law preempts State and local officials from regulat-

ing greenhouse gas emissions from motor vehicles. Just

last month, the National Highway Traffic Safety Admini-

stration (NHTSA) articulated its position that ihe federal

Energy Policy and Conservation Act, which preempts

State regulation “related to fuel economy standards,” 49

U.S.C. § 32919 a), applies to State and local laws limiting

carbon dioxide emissions from motor vehicles. See 71 Fed.

Reg. 17566, 17654-70 (April 6, 2006). in short, the federal

government's current position is that EPA cannot regulate

carbon dioxide emissions from motor vehicles under the

Clean Air Act, and neither may any other level of govern-

ment. Unlike the typical case of federal agency disavowal

of legal authority, which normally would leave the matter

to State and local officials, EPA’s position here takes on far

greater significance. Amici do not endorse NHTSA‘s

reeding of the Energy Policy and Conservation Act, but it

cannot be denied that its reading dramatically raises the

stakes in this case.

We respectfully request a straightforward answer on

the critical legal issues raised by this case, and only this

~ Benjamin Constant, THE Linerty oF THE ANCIENTS COMPARED

with THAT OF THE Moprerns, in Constant: Political Writings 307

(Bianeamaria Fontana trans. & ed., 1988) (1816).

Court can provide it. There will be no “percolation” of the

issue in other circuits due to the D.C. Circuit's exclusive

jurisdiction over petitions for review challenging determi-

nations made under section 202. See 42 U.S.C. § 7607(b¥1).

Without review by this Court, this momentous issue will

be left in legal limbo.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,